October 2014
TABLE OF CONTENTS

COMMISSION DECISIONS
10-07-2014

ICG HAZARD, LLC

KENT 2009-951

Page 2635

10-16-2014

STATE OF ALASKA,
DEPARTMENT OF
TRANSPORTATION

WEST 2008-1490-M

Page 2642

COMMISSION ORDERS
10-02-2014

LIMESTONE DUST CORP.

VA 2013-499-M

Page 2651

10-03-2014

ASH GROVE CEMENT COMPANY

CENT 2013-574-M

Page 2653

10-03-2014

AMERON HAWAII

WEST 2013-972-M

Page 2655

10-03-2014

D & S MINING & EXPLORATION

WEST 2013-985-M

Page 2657

10-06-2014

FRONTIER-KEMPER
CONSTRUCTORS, INC.

WEST 2013-999-M

Page 2659

10-06-2014

BUCKLEY POWDER COMPANY

WEST 2013-1023

Page 2661

10-08-2014

PATTISON SAND COMPANY, LLC

CENT 2013-607-M

Page 2663

10-16-2014

THE AMERICAN COAL COMPANY

LAKE 2011-13

Page 2665

10-20-2014

TACKETT CREEK MINING

SE 2013-557-M

Page 2667

10-20-2014

THE QUARTZ CORPORATION USA

SE 2013-594-M

Page 2669

i

10-20-2014

PROFESSIONAL CONTRACTING,
LLC

VA 2013-559

Page 2671

10-21-2014

BENTON COUNTY STONE
COMPANY, INC.

CENT 2013-675-M

Page 2673

10-21-2014

CHEYENNE ELKHORN COAL
COMPANY, INC.

KENT 2013-1073

Page 2675

10-21-2014

CHEYENNE MINING COMPANY,
INC.

KENT 2014-2

Page 2677

10-21-2014

CHARLES RECKNER, JR., employed
by BUCK RUN AGGREGATES

LAKE 2013-567-M

Page 2679

10-21-2014

CCZ, INC.

WEST 2014-9-M

Page 2681

10-21-2014

BROOKS RUN MINING COMPANY, WEVA 2013-1122
LLC

Page 2683

10-21-2014

DOMINION COAL CORPORATION

Page 2685

VA 2013-565

ADMINISTRATIVE LAW JUDGE DECISIONS
10-01-2014

NORDIC INDUSTRIES, INC.

WEST 2014-193-M

Page 2687

10-03-2014

ROCK EXPRESS, INC

CENT 2010-1236-M

Page 2696

10-03-2014

TWENTYMILE COAL COMPANY

WEST 2009-1323

Page 2715

10-06-2014

SEC. OF LABOR O/B/O CAMERON
GARCIA V. VERIS GOLD U.S.A.,
INC.

WEST 2014-788-DM

Page 2721

10-14-2014

SEC. OF LABOR O/B/O JEFFERY
HARRIS V. HANSON
AGGREGATES MID-PACIFIC, INC.

WEST 2014-935-DM

Page 2724

10-16-2014

WARRIOR INVESTMENTS
COMPANY, INC.

SE-2013-361

Page 2726

ii

10-17-2014

EXTRA ENERGY, INC.

VA 2013-511

Page 2733

10-29-2014

HECLA LIMITED

WEST 2012-353-RM

Page 2749

10-31-2014

RONALD SAND & GRAVEL

WEST 2012-1042

Page 2756

ADMINISTRATIVE LAW JUDGE ORDERS
10-02-2014

SEC. OF LABOR O/B/O REGALD
ROBBINS V. ALDEN RESOURCES,
LLC

KENT 2014-594-D

Page 2787

10-09-2014

WISCONSIN INDUSTRIAL SAND
CO.

LAKE 2014-0692-M

Page 2789

10-20-2014

AUSTIN POWDER COMPANY

PENN 2012-116-R

Page 2791

10-24-2014

KANAVAL’S EXCAVATING &
GRAVEL

YORK 2013-217-M

Page 2795

iii

Review was denied in the following cases during the month of October 2014:
Cactus Canyon Quarries, Inc., Docket No. EAJA 2014-1-M (Judge Rae, September 15, 2014)
Rex Coal Company, Inc. v. Secretary of Labor, MSHA, Docket No. KENT 2011-1037 (Judge
Andrews, September 15, 2014)
Mona Kerlock v. Asarco, LLC, Docket No. WEST 2014-851-DM (Judge Miller, August 27,
2014)

There were no cases in which review was granted during the month of October 2014.

iv

COMMISSION DECISIONS

36 FMSHRC Page 2634

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

October 7, 2014
Docket Nos. KENT 2009-951
KENT 2009-952
KENT 2009-960

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
ICG HAZARD, LLC

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
DECISION
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“the Act”). Two orders issued to ICG Hazard, LLC, by the Secretary of
Labor remain at issue before the Commission.1 The specific issues for review are: whether the
Administrative Law Judge properly affirmed Order No. 8315597 as a section 104(d)(1) order;2
and whether the Judge properly assessed a $138,500 civil penalty for Order No. 8316130.
For the reasons that follow, we modify section 104(d)(1) Order No. 8315597 to a
section 104(a) citation3 and remand the citation for reassessment of the penalty. We also
vacate the Judge’s penalty for Order No. 8316130 and impose a civil penalty of $70,000.

1

Of the fifteen citations and orders in the captioned dockets, seven were resolved
through partial settlement, and eight were affirmed by the Judge. Unpub. Dec., slip op. at 21-22
(Oct. 2012) (ALJ). ICG sought review of four citations and orders; the Commission granted
review of the two orders discussed herein and denied review of Citation No. 8315134 and
Order No. 8315174.
2

In relevant part, section 104(d)(1) establishes additional sanctions for any violation
caused by “an unwarrantable failure of [an] operator to comply with . . . mandatory health or
safety standards.” 30 U.S.C. § 814(d)(1).
3

Section 104(a) generally authorizes the Secretary to issue citations for violations of
“this [Act], or any mandatory health or safety standard, rule, order, or regulation promulgated
pursuant to this [Act].” 30 U.S.C. § 814(a).

36 FMSHRC Page 2635

I.
Order No. 8315597
A.

Factual and Procedural Background

Mine Safety and Health Administration (“MSHA”) Inspector James Daniels issued
Order No. 8315597 after inspecting the 001 Section Joy Continuous Miner in ICG’s Flint Ridge
Mine No 2. The order alleges that ICG failed to conduct an adequate on-shift dust control
examination, in violation of section 75.362(a)(2),4 by failing to note that the continuous miner
had inadequate water pressure and insufficient sprays. Gov. Exs. 12, 13. The inspector
designated the alleged violation as non-significant and substantial (“non-S&S”), but attributable
to a high degree of negligence.
Inspector Daniels also determined that the violation was the result of an unwarrantable
failure to comply with a mandatory standard pursuant to section 104(d) of the Act. Gov. Ex. 13.
Because MSHA had previously issued a section 104(d)(1) citation to ICG at this mine, he
determined that the violation gave rise to a section 104(d)(1) order.5
The Judge affirmed the order as “non-S&S with a high degree of negligence” based on
the obviousness of the missing sprays and inadequate pressure. Slip op. at 16. The Judge made
no explicit finding of unwarrantable failure; however, she ultimately affirmed the violation as a
section 104(d)(1) order by stating “Modifications - None” in her summary of the penalties, and
raised the penalty from $2,000 to $5,000. Id. at 22; Pet. for Assessment of Penalty, Ex. A.
ICG contends, and the Secretary agrees, that the Judge failed to make an unwarrantable
failure finding, and therefore Order No. 8315597 cannot stand as a section 104(d) order. The
4

Section 75.362(a)(2) states in relevant part that “[a] person designated by the operator
shall conduct an examination and record the results and the corrective actions taken to assure
compliance with the respirable dust control parameters specified in the approved mine
ventilation plan . . . within 1 hour after the shift change,” including an examination of “water
pressures . . . [and] water spray numbers.” 30 C.F.R. § 75.362(a)(2).
5

Section 104(d)(1) establishes a “d-chain” framework in which an initial violation that
is both S&S and an unwarrantable failure is designated as a section 104(d)(1) citation, and any
subsequent unwarrantable failure violation within the next 90 days, even if not S&S, necessarily
results in the issuance of a section 104(d)(1) withdrawal order. 30 U.S.C. § 814(d)(1).
Here, the d-chain predicate was Citation No. 8315134, which was issued 57 days prior to
Order No. 8315597, and alleged an S&S violation and an unwarrantable failure to comply with
the mine’s ventilation plan, in violation of section 75.370(a)(1). Gov. Ex. 19; see n.8, infra.
The citation was affirmed by the Judge in the decision at issue, and review was denied. Slip op.
at 3-6; see n.1, supra.

36 FMSHRC Page 2636

parties request that the order be modified to a section 104(a) citation. ICG Br. at 5; Sec’y Resp.
at 2.
B.

Disposition

The Commission has ruled that the question of whether a violation resulted from an
unwarrantable failure to comply is based on an examination of specific criteria. Here, the Judge
failed to address the relevant criteria, and did not make an explicit finding of unwarrantable
failure for Order No. 8315997.
The Commission has defined “unwarrantable failure” as “aggravated conduct constituting
more than ordinary negligence.” Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013)
(citing Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987)). The Commission outlined
the criteria for determining whether conduct is “aggravated,” including:
(1) the extent of the violative condition, (2) the length of time that
the violative condition existed, (3) whether the violation posed a
high degree of danger, (4) whether the violation was obvious,
(5) the operator’s knowledge of the existence of the violation,
(6) the operator’s efforts in abating the violative condition, and
(7) whether the operator had been placed on notice that greater
efforts were necessary for compliance. See IO Coal Co., 31
FMSHRC 1346, 1351-57 (Dec. 2009); Cyprus Emerald Res.
Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other
grounds, 195 F.3d 42 (D.C. Cir. 1999).
Id. Although not all factors may be relevant to every case, all relevant factors must be examined.
Id.; IO Coal, 31 FMSHRC at 1351.
In this case, the Judge made no finding with respect to unwarrantable failure. The
Judge’s decision with respect to Order No. 8315597 does note the obviousness of the violation,
basing the high negligence finding on the mine’s “fail[ure] to conduct an adequate on-shift in
the face of such obvious problems.” Slip op. at 16. The Judge also concludes that the
underlying conditions existed for more than one shift, though this finding is made as evidence of
the violation itself – i.e., that the conditions did not occur after the most recent on-shift
examination – rather than as evidence of aggravated conduct. Id. However, the decision fails to
address the remaining factors, or alternatively, to explain why they are not relevant.6
6

A number of other unwarrantability factors, as related to the underlying conditions
only, are discussed in the Judge’s analysis of Citation No. 8315596, which found that the
inadequate water pressure and missing sprays on the 001 continuous miner constituted a failure
to comply with the mine’s dust control plan, in violation of 30 C.F.R. § 75.370(a)(1). Slip op. at
15-16; see n.8, infra. However, as noted by the Judge, the unwarrantability of an inadequate
(continued…)

36 FMSHRC Page 2637

We emphasize that it is the failure to address all the relevant factors, rather than the mere
absence of the phrase “unwarrantable failure,” that compels this conclusion. A Judge must
analyze and weigh relevant testimony, make appropriate findings, and explain the reasons for her
decision. See Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 (June 1994) (citing Anaconda
Co., 3 FMSHRC 299, 299-300 (Feb. 1981)). Here, the appropriate findings are the relevant
unwarrantability factors, irrespective of the inclusion of the words “unwarrantable failure.”
Generally, when a Judge has failed to make appropriate findings, remand is appropriate.
See, e.g., Mid-Continent Res., 16 FMSHRC at 1222-23. However, the burden of proving
unwarrantable conduct rests with the Secretary, Peabody Coal Co., 18 FMSHRC 494, 499
(Apr. 1996), and here, the Secretary has in essence conceded that the record is insufficient
to establish unwarrantable failure.7 Accordingly, remand with regard to that element is
unnecessary. Order No. 8315597 is modified to a section 104(a) citation, and remanded
for reconsideration of the penalty consistent with the removal of the unwarrantable failure
designation.
II.
Order No. 8316130
A.

Factual and Procedural Background

MSHA Inspector Robert Ashworth issued Order No. 8316130 after inspecting the
continuous miner in the mine’s 002 Section. The order alleges that the continuous miner had
inadequate water pressure and a number of missing sprays, in violation of section 75.370(a)(1),

6

(…continued)

examination must be established independently from that of the underlying violative conditions.
Id. at 14; see Consolidation Coal Co., 23 FMSHRC 588, 597 (June 2001) (finding that the
unwarrantability analyses for related violations of 30 C.F.R. §§ 75.400 and 75.360 may rely on
some of the same factual findings, but are not interchangeable).
7

The Secretary’s Response Brief states:
[A] reading of the Judge’s decision confirms that the judge
did not make a finding that the violation alleged in Order No.
8315597 was an unwarrantable failure. See Dec. at 16.
Accordingly, the judge should have modified Order No. 8315597
from a Section 104(d)(1) order to a Section 104(a) citation.

Sec’y Resp. at 2.

36 FMSHRC Page 2638

which requires compliance with the approved ventilation and dust control plan.8 Gov. Ex. 16.
The Secretary initially designated the condition as a flagrant violation and proposed a
$138,500 civil penalty pursuant to section 110(b)(2) of the Act, 30 U.S.C. § 820(b)(2). Prior to
the hearing in this matter, the parties filed joint stipulations in which the Secretary agreed not to
pursue the flagrant designation. Jt. Ex. 1, Jt. Stip. 6. However, the relevant stipulation was not
addressed at the hearing or in the parties’ post-hearing briefs, nor did the Secretary propose a
new reduced penalty for Order No. 8316130 consistent with a non-flagrant violation.
The Judge affirmed the order as S&S and attributable to unwarrantable failure, with no
modifications, and assessed the $138,500 penalty originally proposed by the Secretary. Slip op.
at 17-19, 22. The Judge’s decision makes no mention of the flagrant designation.
ICG contends, and the Secretary agrees, that the Judge improperly exceeded the $70,000
maximum assessable civil penalty for non-flagrant violations provided by section 110(a)(1) of
the Act, 30 U.S.C. § 820(a)(1), because the Secretary stipulated that he did not intend to pursue
the flagrant designation. ICG Br. at 5-6; Sec’y Resp. at 2. Alternatively, ICG argues that the
penalty is improper because the Judge failed to make a finding regarding a flagrant violation.
ICG Br. at 7.
ICG requests that the $138,500 civil penalty be vacated and remanded for reassessment
of a penalty consistent with the non-flagrant maximum provided in section 110(a)(1). The
Secretary contends that a remand is unnecessary, because “[i]nasmuch as the judge assessed a
penalty of $138,500 . . . the judge a fortiori has already determined that a penalty of $70,000
is appropriate.” Sec’y Resp. at 3 n.1.
B.

Disposition

Section 110(a)(1) states that the operator of a mine “in which a violation occurs of a
mandatory health or safety standard . . . shall be assessed a civil penalty by the Secretary which
penalty shall not be more than $50,000 [currently $70,000] for each such violation;” however,
pursuant to section 110(b)(2), “[v]iolations under this section that are deemed to be flagrant may
be assessed a civil penalty of not more than $220,000.” 30 U.S.C. §§ 820(a)(1), (b)(2). The
Judge did not make a flagrant finding with regard to Order No. 8316130. Therefore, the
$138,500 civil penalty assessed by the Judge was improper.
A violation is deemed to be flagrant if it is “a reckless or repeated failure to make
reasonable efforts to eliminate a known violation of a mandatory health or safety standard
that . . . reasonably could have been expected to cause[ ] death or serious bodily injury.”

8

Section 75.370(a)(1) requires the operator to “follow a ventilation plan approved by the
district manager . . . designed to control methane and respirable dust.” 30 C.F.R. § 75.370(a)(1).

36 FMSHRC Page 2639

30 U.S.C. § 820(b)(2). ICG correctly states that the Judge failed to make findings with respect
to any of the elements unique to a flagrant violation.
The Secretary’s stipulation does not foreclose the possibility of a flagrant designation.9
Nevertheless, in this case, the Secretary’s stipulation does resolve the issue as a practical matter,
because the Secretary did not present any evidence at hearing related to the unique elements of
a flagrant violation, i.e., that the violation was a reckless or repeated failure to make reasonable
efforts to eliminate a known violation. Therefore, the record compels the conclusion that the
Secretary did not establish a flagrant violation. Accordingly, the Judge erred in assessing a
penalty in excess of the statutory maximum for non-flagrant violations.
The remaining issue is whether to remand the penalty for reassessment or to reduce the
penalty to $70,000 without a remand. Where the evidence supports only one conclusion, remand
on that issue is unnecessary. See Sedgman, 28 FMSHRC 322, 331 (June 2006); Am. Mine
Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993). Here, the imposition of a $138,500 penalty
clearly indicates that the Judge found that the gravity and negligence associated with the
violation (findings which ICG has not challenged) warranted an extremely high penalty.10 ICG
has not challenged the Judge’s assessed penalty in Order No. 8316130 except insofar as it
exceeded the statutory maximum for non-flagrant violations. We agree with the Secretary that
the Judge’s decision supports only the conclusion that the Judge intended to assess at least
$70,000. Therefore, remand is unnecessary; the penalty assessed for Order No. 8316130 is
vacated, and a penalty of $70,000 is imposed.

9

Section 110(k) of the Act states that “[n]o proposed penalty which has been contested
before the Commission . . . shall be compromised, mitigated, or settled except with the approval
of the Commission.” 30 U.S.C. § 820(k).
10

The Judge’s imposition of an extremely high penalty was justified by the MSHA
inspector’s findings of inadequate water pressure and missing sprays on a continuous miner.
Specifically, the inspector found: (1) only 5 psi of water pressure on the continuous miner
instead of the required 60 psi, resulting in only a small trickle of water from the spray; (2) only 3
sprays instead of the required 5 sprays on the front cutter head; (3) only 2 sprays instead of the
required 3 sprays on another spray block; (4) only 5 sprays instead of the required 7 sprays on
one of the top spray blocks; and (5) only 5 sprays instead of the required 8 sprays on the other
top spray block. Slip op. at 17; Tr. 116-22. The Judge agreed with the inspector that the
violation resulted in increased dust in the air, and hence the health hazard of greater exposure to
respirable dust leading to the crippling diseases of silicosis and pneumoconiosis. Slip op. at 1819. The Judge also found the violation to be S&S and an unwarrantable failure based on the
inspector’s testimony that the violation was dangerous in exposing two miners to the hazards of
silicosis and pneumoconiosis, that it was extensive and had existed for some time, that it was
obvious, and that the operator knew or should have known about the serious violation of its
ventilation plan. Id.

36 FMSHRC Page 2640

III.
Conclusion
For the foregoing reasons, section 104(d) Order No. 8315597 is modified to a
section 104(a) citation, and remanded for reassessment of a civil penalty consistent with a
non-unwarrantable failure violation. Additionally, we vacate the $138,500 penalty imposed
by the Judge for Order No. 8316130 and, consistent with section 110(a)(1) of the Act, impose
a penalty of $70,000.

/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 2641

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

October 16, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2008-1490-M

v.

STATE OF ALASKA, DEPARTMENT
OF TRANSPORTATION

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). At issue are the sand and gravel
operations the State of Alaska Department of Transportation (“AKDOT”) conducts in
conjunction with maintaining the Dalton Highway, which is used by vehicles to service the
Alaska Pipeline. An Administrative Law Judge granted AKDOT’s motion to dismiss the
proceeding for a lack of jurisdiction under the Mine Act. 34 FMSHRC 179 (Jan. 2012) (ALJ).
The Secretary of Labor petitioned for review. For the reasons that follow, we reverse the
determination of the Administrative Law Judge and conclude that the AKDOT operations are
subject to the Mine Act.
I.
Factual and Procedural Background
The Dalton Highway is a gravel road, approximately 420 miles in length, that is used
year-round, even when it is frozen. 34 FMSHRC at 180-81. During the original construction
of the road, 40 or so pits were developed near it. AKDOT uses its equipment during a limited
period in the summer to remove sand and gravel from the pits as needed for AKDOT’s use in
maintaining the road during the following year. Id. at 181. A large piece of equipment known
as a “SAG Screener” is employed by AKDOT in connection with its sand and gravel operations;
the SAG Screener travels from pit to pit. Id. at 179, 181.

36 FMSHRC Page 2642

With regard to such multi-site operations, the Department of Labor’s Mine Safety and
Health Administration (“MSHA”) takes the position that it considers the location at which
portable equipment is being used to be a “mine” for purposes of enforcing the Mine Act.1 In
2002, MSHA requested that the portable screeners that AKDOT uses in road and other
operations be registered with MSHA. Consequently, the SAG Screener was issued an MSHA
Mine ID number that year. 34 FMSHRC at 181.
In June 2008, when the pit and screening operation was taking place near Mile 144 of the
Dalton Highway, it was the subject of an MSHA inspection. The MSHA inspector stated that
he observed AKDOT employees
excavating material from a “gravel pit,” [and] loading the material
into a screener which separated it into different sizes of rock and
placed the rock in different piles based on its size. Three different
sizes of rock were being produced because there were three
conveyor belts carrying the rock from the screener to three
separate piles. In addition, there was a conveyor for the oversize.
The sized rock had commercial value.
Sec’y’s Resp. to Show Cause Order, Decl. of James E. DeJarnatt, ¶ 5. The MSHA inspector
stated that the screener was approximately 1/4 mile from the road at one of the pits and that a
bulldozer was being used to expand the pit. In total, there were three individuals working there.
Id., ¶¶ 3-4, 6.
The inspector issued two citations to AKDOT for violations he found with respect to two
of the front-end loaders it was using in the operation.2 After MSHA proposed penalties of $100
for each of the violations, AKDOT moved to dismiss the citations on the ground that its
operations in question were beyond MSHA’s jurisdiction under the Mine Act. 34 FMSHRC
at 179.
In ruling on AKDOT’s motion to dismiss, the Judge concluded that because the road
being maintained was used in support of the Alaska Pipeline, AKDOT’s operations affected
interstate commerce. 34 FMSHRC at 182. The Judge went on to hold, however, that the
1

See PPM Vol. III, sect. 41-2 (May 16, 1996) (construing 30 C.F.R. Part 41
Notification of Legal Identity requirements to provide that “[w]hen a mine operator has a
portable plant which operates in several different locations, the mine identification number is to
be assigned to the plant only and not to the pit. Mine operators will need to submit only one
legal identification form for each portable plant.”).
2

One citation was for exposed wires from a bushing on a loader in violation of the
mandatory standard in 30 C.F.R. § 56.12004 requiring that such conductors be protected from
mechanical damage. The other citation was for an inoperable backup alarm on a second loader
in violation of 30 C.F.R. § 56.14132(a)’s requirement that backup alarms be maintained in
functional condition. 34 FMSHRC at 179.

36 FMSHRC Page 2643

screening by AKDOT did not rise to the level of “milling” of the excavated material, which is
necessary to confer jurisdiction on MSHA under an interagency agreement between it and the
Department of Labor’s Occupational Safety and Health Administration (“OSHA”).3 Rather,
according to the Judge, “bulk” material was being extracted from the pits as a matter of
convenience, and therefore under that agreement those pits were “borrow pits” and thus the
subject of OSHA, not MSHA, jurisdiction. Id. at 184. The Judge further found the operations
to be excluded from the ambit of Mine Act jurisdiction because the screening that was occurring
was neither a principal activity normally performed in the mineral milling process nor an activity
undertaken to make the material suitable for a particular use meeting market specifications. Id.
at 187.
II.
Disposition
The Secretary maintains that the Judge not only erred in concluding that the Interagency
Agreement did not confer upon MSHA jurisdiction over the cited AKDOT operations as a
“milling” operation, but that he also ignored other evidence that established that the AKDOT
operations constituted a “coal or other mine” under section 3(h)(1) of the Mine Act, 30 U.S.C.
§ 802(h)(1).
AKDOT does not address the question of milling, but instead argues that the Judge’s
decision can be upheld on three grounds: (1) the products resulting from AKDOT’s operations
do not enter or affect commerce, and thus under section 4 of the Mine Act, 30 U.S.C. § 803,
those operations cannot be regulated by the Mine Act;4 (2) AKDOT’s operations are conducted
within the right-of-way of a public road, and thus fall outside the scope of the definitional
provisions of section 3(h)(1) of the Mine Act; and (3) AKDOT’s extraction of material falls
within the “borrow pit” terms of the Interagency Agreement, and therefore is subject to OSHA,
not MSHA, jurisdiction.5
We agree with the Judge regarding his interpretation of section 4 of the Act and find that
the operations of AKDOT in question affect interstate commerce. We conclude that in
determining that the AKDOT operations did not constitute a “coal or other mine” under section
3(h)(1), the Judge failed to properly apply the terms of the statute. The Judge also erred in his
interpretation of the meaning of “milling” in the Interagency Agreement. We reverse his
3

MSHA-OSHA Interagency Agreement, 44 Fed. Reg. 22,827 (Apr. 17, 1979), amended
by 48 Fed. Reg. 7521 (Feb. 22, 1983) (“the Interagency Agreement”).
4

As the prevailing party below, AKDOT may urge in support of the decision under
review even those arguments that the Judge considered and rejected. See, e.g., Sec’y on behalf
of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1529 (Aug. 1990).
5

With its response brief, AKDOT submitted a motion that the Commission hear oral
argument in the case. Commissioners were polled and denied that request.

36 FMSHRC Page 2644

decision and find that the AKDOT operations are a “coal or other mine” under the Mine Act and
that they are subject to MSHA’s regulatory jurisdiction.
A.

Whether AKDOT’s Sand and Gravel Operations “Affect Commerce.”

Section 4 of the Mine Act provides that “[e]ach coal or other mine, the products of which
enter commerce, or the operations or products of which affect commerce, and each operator of
such mine, and every miner in such mine shall be subject to the provisions of this Act.”
30 U.S.C. § 803. The scope of section 4 of the Mine Act was addressed in D.A.S. Sand &
Gravel, Inc. v. Chao, 386 F.3d 460 (2d Cir. 2004). Applying Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984), the court concluded that “the
language of [the section], the language and design of the Mine Act as a whole, and the Act’s
legislative history” all indicate that Congress intended to regulate mine safety to the full extent
of its power under the Commerce Clause. 386 F.3d at 462. Drawing in part on the Supreme
Court’s holding that even wheat grown solely for personal consumption was the proper subject
of federal regulation under the Commerce Clause (Wickard v. Filburn, 317 U.S. 111, 127-28
(1942)), the D.A.S. court further concluded that even though the operator sold its products
entirely within the state in which the products were mined and produced, the operator was
subject to the Mine Act. 386 F.3d at 464; see also Hodel v. Virginia Surface Mining &
Reclamation Ass’n, 452 U.S. 264, 275-83 (1981) (holding that legislation regulating surface
mining of private land was within Congress’ Commerce Clause powers).
We read the court’s decision in D.A.S. to mean that any mining or milling that an entity
engages in for its own use constitutes “commerce” under section 4 of the Mine Act. The
Supreme Court in Wickard v. Filburn made it clear that, with regard to purely local actors, the
focus is on whether the activities of such actors taken together would have the potential to affect
the interstate market at issue. There is no question that such potential is present with respect to
entities that mine or mill sand or gravel for their own use.
AKDOT nevertheless maintains that the Dalton Highway is so remote that the sand and
gravel it produces there could not be marketed anywhere else due to prohibitive transportation
costs. Therefore, according to AKDOT, even when AKDOT’s production is considered
together with local actors similarly situated, there would be no impact on the interstate market
for the product. In support, AKDOT cites two Ninth Circuit cases deciding issues under the
Alaska Claims Settlement Act (“ACSA”). Neither case, however, supports the conclusion
AKDOT would have the Commission reach.
In the first case, Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 732 (9th Cir. 1979),
the court found that, for purposes of allocating the rights to profit from various property interests
granted under the ACSA, the value of sand and gravel deposits is highly dependent on their
proximity to developed areas that will use such material, and that they are unprofitable to ship
over long distances. The court used similar reasoning with regard to rock when later presented
with the question of whether the holder of timber rights to land under the ACSA had a right to
acquire at a reasonable cost the rock underlying the land to use in constructing such roads as are
necessary to harvest the timber; the transportation cost of shipping rock to the site was

36 FMSHRC Page 2645

prohibitive relative to the value of the timber rights. See Koniag, Inc. v. Koncor Forest
Resource, 39 F.3d 991 (9th Cir. 1994).
The two cases are of no import here, because there was no finding in this case that the
construction and continued existence of the Dalton Highway was in any way dependent on its
proximity to sources of sand and gravel. In marked contrast, the importance of continued
operation of the Alaska Pipeline and the need for use of the Dalton Highway to maintain it
means that sand and gravel from some source has to be used to maintain the road, even if it
would have to be transported from elsewhere. The fact that AKDOT is able to produce sand
and gravel locally means that it does not have to purchase it. Because this is the type of effect
on commerce that was sufficient to bring the wheat in Wickard v. Filburn within the ambit of the
Commerce Clause, the two Ninth Circuit cases do not provide any basis on which to depart from
court and Commission precedent regarding the “commerce” language of section 4 of the Mine
Act.
B.
Act as:

Whether the AKDOT Operations Are a “Mine” under the Mine Act.
The term “coal or other mine” is defined in pertinent part in section 3(h)(1) of the Mine
(A) an area of land from which minerals are extracted . . . , (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 . . . , 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 . . . or used in, or to be used in, the
milling of such minerals, or the work of preparing coal or other
minerals, and includes custom coal preparation facilities. In
making a determination of what constitutes mineral milling for
purposes of this chapter, the Secretary shall give due consideration
to the convenience of administration resulting from the
delegationto one Assistant Secretary of all authority with respect to
the health and safety of miners employed at one physical
establishment.

30 U.S.C. § 802(h)(1) (emphases added).
In the legislative history of the Act, Congress made it clear “that what is considered to be
a mine and to be regulated under this Act be given the broadest possibl[e] interpretation, and it is
the intent of this Committee that doubts be resolved in favor of inclusion of a facility within the
coverage of the Act.” S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on
Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of
1977, at 602 (1978) (“Legis. Hist.”). Accordingly, the Commission has consistently construed

36 FMSHRC Page 2646

section 3(h)(1) broadly in favor of Mine Act coverage. E.g., Calmat Co. of Arizona, 27
FMSHRC 617, 622, 624 (Sept. 2005).
1.

AKDOT’s Extraction Activities
a.

The Language and History of the Mine Act

Sand and gravel mining operations, whether year-round, intermittent, or seasonal, have
long been subject to mine safety regulation. See S. Rep. No. 95-181, at 57, Legis. Hist. at 645
(detailing scope of industries subject to one of Mine Act’s predecessor statutes, the Metal and
Non-metallic Mine Safety Act of 1966, and that would therefore be subject to the Mine Act).
Without question, any entity that engages in the extraction of sand or gravel falls within the
definition of “coal or other mine.” See, e.g., Donovan v. Carolina Stalite Co., 734 F.2d 1547,
1548 (D.C. Cir. 1984) (slate gravel quarry operator, including its conveyors, subject to Mine
Act); Jerry Ike Harless Towing, Inc., 16 FMSHRC 683, 688 (Apr. 1994) (operator’s extraction
of “sand, a mineral, from its natural deposit . . . . covered by the Mine Act.”).
Because AKDOT conceded from the outset of this proceeding that it extracts material
from its pits that it then processes on the spot to produce sand and gravel, its operations plainly
fall within section 3(h)(1).6 The AKDOT excavation pits are covered under subsection (A) –
areas of land on which extraction occurs. Moreover, the screening process and the trucks and
conveyors that it uses are covered under subsection (C) – equipment, machines, or tools used in
mining. See W.J. Bokus Indus., Inc., 16 FMSHRC 704, 708 (Apr. 1994) (equipment used in
“mining-related tasks” covered by section 3(h)(1)).
AKDOT nevertheless argues that because all of its pit and screening operations occur
within the right-of-way of the Dalton Road, and the Mine Act specifically includes only “private
roads” within the definition of “mine,” the Secretary exceeds the scope of the Mine Act when he
seeks to treat as a mine an operation occurring within a public road right-of-way. See 30 U.S.C.
§ 802(h)(1)(B) (extending jurisdiction to “private ways and roads appurtenant to [areas of land
from which minerals are extracted]”).
However, even if all of AKDOT’s operations at issue occur within the dedicated
right-of-way, that does not resolve the question of Mine Act jurisdiction. While mining
operations within a public road right-of-way may be unusual, there is nothing in the language of
section 3(h)(1) of the Mine Act that forecloses application of the Act to such operations
conducted on public road rights-of-way.

6

Mike Oden, Sr., an AKDOT safety manager, in an affidavit supporting AKDOT’s
Motion to Dismiss, stated that to meet its need for sand and gravel to maintain the Dalton
Highway for safe year-round access, AKDOT “produces and stockpiles sand and gravel in
borrow pits located along the Dalton Highway right-of-way,” and that such pits “provide[]
construction and maintenance materials” for the highway. ¶¶ 5, 9.

36 FMSHRC Page 2647

The definition of “mine” was drafted in the conjunctive. It begins with subsection (A),
the area of land from which minerals are extracted, and extends out beyond such areas to include
subsection (B) appurtenant private roads, and in subsection (C) to such things as equipment used
in mining or milling. The fact that the terms of subsection (B) foreclose extending jurisdiction
over a public road under that subsection does not mean that operations or activities conducted on
a public road right-of-way also fall outside the scope of subsections (A) or (C). And it is both
those subsections of the definition that plainly encompass the AKDOT pit and screening
operation. Consequently we hold that AKDOT’s operations clearly fall within the terms of
section 3(h)(1)’s definition of “coal or other mine.”
b.

The MSHA-OSHA Interagency Agreement

AKDOT also argues that the sand and gravel should be considered mere “fill,” and thus
its pits are simply “borrow pits.” AKDOT’s argument is premised on the “determination”
which the Secretary made pursuant to the final sentence of section 3(h)(1)(C). That
determination is the aforementioned Interagency Agreement that allocates between MSHA and
OSHA the responsibility for various types of operations that may involve the milling of extracted
minerals. While the Judge agreed with AKDOT, neither applicable law nor the evidence in this
proceeding supports his conclusion on the issue.7
Deference is owed to an agency’s reasonable interpretation of the jurisdictional terms of
the statutory provisions it is charged with administering. City of Arlington, Tx v. FCC, 133 S.
Ct. 1863, 1868-73 (2013). Given the explicit delegation in section 3(h)(1) of the Act to the
Secretary, the Interagency Agreement is to be deferred to whenever it is reasonable in light of
the Mine Act’s definition of “mine.” Donovan v. Carolina Stalite Co., 734 F.2d at 1552.
Appendix A to the Interagency Agreement, in setting forth specific examples of
unquestioned MSHA authority under the Mine Act apart from milling, includes operations
involving the “[o]pen pit mining” of “[s]and and [g]ravel.” 44 Fed. Reg. at 22,829. Thus, the
Interagency Agreement provides MSHA jurisdiction over the AKDOT operations at issue here
before the question of milling is even reached.
We recognize that the Interagency Agreement generally accords OSHA, and not MSHA,
jurisdiction over “borrow pits.” However, it limits what can be considered a “borrow pit” to:
an area of land where the overburden, consisting of unconsolidated
rock, glacial debris, or other earth material overlying bedrock is
7

When reviewing an Administrative Law Judge’s factual determinations, the
Commission is bound by the terms of the Mine Act to apply the substantial evidence test.
30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a
reasonable mind might accept as adequate to support [the Judge’s] conclusion.’” Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).

36 FMSHRC Page 2648

extracted from the surface. Extraction occurs on a one-time only
basis or only intermittently as need occurs, for use as fill materials
by the extracting party in the form in which it is extracted. No
milling is involved, except for the use of a scalping screen to
remove large rocks, wood and trash. The material is used by the
extracting party more for its bulk than its intrinsic qualities on land
which is relatively near the borrow pit.
Id. at 22,828. In concluding that AKDOT was excavating materials from such borrow pits
along the Dalton Highway, the Judge focused on AKDOT’s intermittent use of the pits as well as
an example discussed in MSHA PPM, Vol. I, at sect. 4-3 (1996). There, MSHA stated that
where a landowner uses material in basically the same form as it is extracted to fill potholes in a
road, the excavation will be considered a borrow pit and thus not subject to MSHA jurisdiction.
34 FMSHRC at 184-85.
The Judge ignored the evidence that the screening process AKDOT was engaged in did
more than “scalp” away large rocks, wood, and trash from the material it was extracting. As
noted by the inspector, it was being used by AKDOT to size the material into different piles.
Decl. of James E. DeJarnatt, ¶ 5. Moreover, in response to the Judge’s Order Requesting
Clarification, AKDOT’s counsel compiled statements from State employees and offered to
provide declarations of the employees if the Judge required. Counsel summarized that “[t]he
materials stored in each pit originate from natural deposits in each pit. The natural deposits at
each pit make certain pits a better source for a particular construction of [sic] maintenance
material: to wit, riprap (big rock), rock, gravel, or sand.” AKDOT Resp. to Request for
Clarification at 2. Thus, the evidence contradicts the Judge’s conclusion that AKDOT’s
excavations are borrow pits it uses to provide material that is used in basically the same form as
it is extracted.
2.

AKDOT’s Subsequent Processing Activities

The Judge concluded that AKDOT’s use of the SAG Screener did not constitute
“milling” under section 3(h)((1). 34 FMSHRC at 182-185. The Judge erred in concluding that
“milling” was not occurring.
The Interagency Agreement states that “[m]illing consists of one or more of the following
processes: crushing, grinding, pulverizing, sizing, . . . . 44 Fed. Reg. at 22,829 (emphasis
added). “Sizing” is defined in the Interagency Agreement as “[t]he process of separating
particles of mixed sizes into groups of particles of all the same size, or into groups in which
particles range between maximum and minimum sizes.” Id. at 22,829-30. The uncontradicted
Declaration of MSHA inspector DeJarnatt, quoted supra, establishes that AKDOT used the Sag
Screener to separate the material from the pit into separate piles based on size, with the oversized
rock separated out entirely. Because the evidence establishes that AKDOT was using the SAG
Screener to size the material it was extracting, AKDOT was clearly engaging in “milling” under
section (h)(1) as that term is interpreted in the Interagency Agreement.

36 FMSHRC Page 2649

III.
Conclusion
For the foregoing reasons we reverse the Judge’s determination that the AKDOT Dalton
Highway sand and gravel operations are not a “mine” under the Mine Act and remand this case
for further proceedings.

/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 2650

COMMISSION ORDERS

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

October 2, 2014
Docket No.
A.C. No.

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

VA 2013-499-M
44-02783-317444

v.
LIMESTONE DUST CORP.
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On August 2, 2013, the Commission received from Limestone
Dust Corp. (“Limestone”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on April 9, 2013, and became a
final order of the Commission on May 9, 2013. Limestone asserts that it mistakenly waited for
another

36 FMSHRC Page 2651

proposed assessment to arrive before forwarding them to its counsel in June. MSHA mailed a
delinquency notice on June 24, 2013. The Secretary does not oppose the request to reopen and
urges the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Limestone’s request and the Secretary’s response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ 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 2652

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

October 3, 2014
Docket No.
A.C. No.

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

CENT 2013-574-M
14-00034-321358

v.
ASH GROVE CEMENT COMPANY
BEFORE: Nakamura, Acting Chairman; and Cohen, Commissioner1
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On July 2, 2013, the Commission received from Ash Grove
Cement Company (“Ash Grove”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act,
30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty
assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on May 16, 2013, and became a
1

Commissioner Althen was recused from this case.

36 FMSHRC Page 2653

final order of the Commission on June 17, 2013. Ash Grove asserts that its safety director was
out of the office and discovered the delinquency on June 28, 2013. The Secretary does not
oppose the request to reopen and urges the operator to take steps to ensure that future penalty
contests are timely filed.
Having reviewed Ash Grove’s request and the Secretary’s response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

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

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

36 FMSHRC Page 2654

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

October 3, 2014
Docket No.
A.C. No.

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

WEST 2013-972-M
51-0004-318505

v.
AMERON HAWAII

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On July 15, 2013, the Commission received from Ameron
Hawaii (“Ameron”) a motion seeking to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).

36 FMSHRC Page 2655

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on April 16, 2013, and became a
final order of the Commission on May 16, 2013. Ameron asserts that the proposed assessment
was inadvertently lost in interoffice mail. The error was discovered after receiving MSHA’s
delinquency notice, dated July 1, 2013. The Secretary does not oppose the request to reopen and
urges the operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Ameron’s request and the Secretary’s response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ 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 2656

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

October 3, 2014
Docket No.
A.C. No.

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

WEST 2013-985-M
24-01779-302683

v.
D & S MINING & EXPLORATION

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On July 23, 2013, the Commission received from D&S Mining
and Exploration (“D&S”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
D&S asserts that it did not receive the proposed assessment and discovered the
delinquency after it received a collection notice dated July 9, 2013. Records of the Department
of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed
assessment was mailed to D&S’ address of record, but a copy of the FedEx envelope reveals that
the address was changed to another, handwritten, address, and then refused by recipient. MSHA
mailed another copy of the proposed assessment and a delinquency notice to another address for
D&S, and they were returned undelivered. MSHA referred this case to the Department of
Treasury for collection on May 23, 2013. The Secretary does not oppose the request to reopen,
but urges the operator to take steps to ensure its address of record is an address that can receive
future penalty assessments and that future penalty contests are timely filed.
Having reviewed D&S’ request and the Secretary’s response, we reopen this matter and
remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine

36 FMSHRC Page 2657

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.1 Accordingly, consistent with
Rule 28, the Secretary shall file a petition for assessment of civil penalty within 45 days of the
date of this order. See 29 C.F.R. § 2700.28.

/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

1

The Commission previously granted relief to D&S from final orders under similar
circumstances of alleged non-receipt of properly-sent proposed assessments in WEST 2012-1227
and WEST 2012-1228 (May 21, 2013). D&S is hereby placed on notice that the Commission
will not grant relief in the future if similar circumstances arise again.

36 FMSHRC Page 2658

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

October 6, 2014
Docket No.
A.C. No.

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

WEST 2013-999-M
26-00827-316927 A01

v.
FRONTIER-KEMPER
CONSTRUCTORS, INC.
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On July 19, 2013, the Commission received from
Frontier-Kemper Constructors (“Frontier”) a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

36 FMSHRC Page 2659

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on March 26, 2013, and became
a final order of the Commission on April 25, 2013. Frontier asserts that it mailed a contest to the
payment center on May 20, 2013. The Secretary does not oppose the request to reopen, but notes
that the contest form MSHA received at its St. Louis, MO, payment center, was postmarked May
7, 2013. MSHA mailed a delinquency notice on June 10, 2013. The Secretary urges the operator
to take steps to ensure that future penalty contests are timely filed and mailed to the Civil Penalty
Compliance Office in Arlington, VA.
Having reviewed Frontier’s request and the Secretary’s response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ 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 2660

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

October 6, 2014
Docket No.
A.C. No.

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

WEST 2013-1023
48-00086-325274 SB9

v.
BUCKLEY POWDER COMPANY
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On August 5, 2013, the Commission received from Buckley
Powder Company (“Buckley”) a motion seeking to reopen Citation No. 8478099 in a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

36 FMSHRC Page 2661

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 26, 2013, and became a
final order of the Commission on July 26, 2013. Buckley asserts that its administrative personnel
inadvertently missed the contest deadline by one week. The Secretary does not oppose the
request to reopen, and urges the operator to adopt procedures to ensure that future penalty
contests are timely filed.
Having reviewed Buckley’s request and the Secretary’s response, in the interest of
justice, we hereby reopen Citation No. 8478099 and remand it to the Chief Administrative Law
Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules,
29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for
assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ 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 2662

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

October 8, 2014
Docket No.
A.C. No.

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

CENT 2013-607-M1
13-02297-323804

v.
PATTISON SAND COMPANY, LLC
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On July 19, 2013, the Commission received from Pattison Sand
Company, LLC (“Pattison”) a motion seeking to reopen Citation No. 8737286 in a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

1

Pursuant to 29 C.F.R. § 2700.79, the Order dated October 3, 2014, has been amended to
correct a clerical error in the captioned Docket No.

36 FMSHRC Page 2663

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 11, 2013, and became a
final order of the Commission on July 11, 2013. The proposed assessment included a number of
section 104(c) citations as well as Citation No. 8737286, a citation issued under section
104(d)(1) of the Mine Act. Pattison asserts that it intended to contest the section 104(d)(1)
Citation No. 8737286, but that its human resources director mistakenly sent the assessment to
accounting for payment. The error was discovered on July 16, 2013, after MSHA commenced a
section 110(c) investigation. The Secretary does not oppose the request to reopen and urges the
operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed Pattison’s request and the Secretary’s response, in the interest of
justice, we hereby reopen this matter as to Citation No. 8737286 and remand it to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

/s/ 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 2664

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

October 16, 2014
Docket No. LAKE 2011-13

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
THE AMERICAN COAL COMPANY

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
The United Mine Workers of America (“UMWA”) has filed a motion to intervene in this
proceeding. The Secretary of Labor has filed an opposition to the UMWA’s motion, and the
UMWA has filed a reply to the Secretary’s opposition. In addition, the United Steel, Paper and
Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International
Union (“USW”) has filed a motion to intervene in this proceeding, and the Secretary has filed an
opposition to the USW’s motion.
The Secretary opposes intervention by the UMWA and the USW on the basis that,
because neither union represents miners at the subject mine, neither union has “[a] legally
protectable interest directly relating to the property or events that are the subject of the case on
review” within the meaning of Commission Procedural Rule 73, 29 C.F.R. § 2700.73. S. Opp’n
at 2.
Whether to permit intervention lies within “the sound discretion of the Commission.” 29
C.F.R. § 2700.73. Although neither the UMWA nor the USW represents miners at the mine, both
unions have a longstanding commitment to the health and safety of miners and represent miners
at other mines under the jurisdiction of the Department of Labor’s Mine Safety and Health
Administration (“MSHA”). Resolution of the issue regarding interpretation of section 110(k) of
the Mine Act, 30 U.S.C. § 820(k), addressed in this proceeding will impact the adjudication of
every case in which MSHA seeks approval of a settlement entered into with an operator.1 The
Secretary’s choice to advance this interpretation in a case where miners are not represented by
1

In contrast with this proceeding, in Excel Mining LLC, 22 FMSHRC 318 (Mar. 2000),
the Commission denied a union intervenor status because that case pertained to standards
applicable only to coal mines, while the union’s separate litigation, which was the basis for its
request to intervene, pertained to standards applicable to metal and non-metal mines. Id. at 320.

36 FMSHRC Page 2665

the UMWA or the USW should not foreclose intervention by the unions, particularly where there
is no party to this action to challenge the Secretary’s position.2 Having reviewed the pleadings
filed by the unions and the Secretary, we conclude that the unions have a sufficient legally
protectable interest relating to this proceeding. Pursuant to Commission Procedural Rule 73, we
hereby grant the motions and permit the UMWA and the USW to intervene. 29 C.F.R. §
2700.73.
Subsequent to the filing of the unions’ motions, Congressman George Miller filed a
motion to participate as amicus curiae in this proceeding. Pursuant to Commission Procedural
Rule 74, we hereby grant the motion and permit The Honorable George Miller to participate as
amicus. 29 C.F.R. § 2700.74.
Within 30 days of the date of this order, the Union Intervenors shall file a joint brief with
the Commission. The joint brief shall not exceed 50 pages.
Within 20 days of service of the Union Intervenors’ brief, The Honorable George Miller
shall file his amicus brief. The amicus brief shall not exceed 25 pages.
Within 30 days of service of the amicus brief, the Secretary shall file any reply brief.
That reply brief shall not exceed 20 pages.
/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

2

We note that a cornerstone of the Mine Act is encouraging the participation of miners in
the enforcement of the Mine Act. See, e.g., 30 U.S.C. §§ 813(f), 813(g), 815(c); 29 C.F.R.
2700.1(c) (“These rules shall be construed to . . . encourage the participation of miners and their
representatives.”).

36 FMSHRC Page 2666

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

October 20, 2014
Docket No.
A.C. No.

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

SE 2013-557-M
40-03392-324138

v.
TACKETT CREEK MINING
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On August 20, 2013, the Commission received from Tackett
Creek Mining (“Tackett”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty
assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530
(Sept. 1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 13, 2013, and became a

36 FMSHRC Page 2667

final order of the Commission on July 15, 2013. Tackett asserts that it failed to timely
contest the assessment due to a clerical error, and hired a consultant to avoid errors in the
future. The Secretary does not oppose the request to reopen, and urges the operator to adopt
procedures to ensure that future penalty contests are timely filed.
Having reviewed Tackett’s request and the Secretary’s response, in the interest of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ 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 2668

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

October 20, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No.
A.C. No.

SE 2013-594-M
31-01334-320514

v.
THE QUARTZ CORPORATION USA
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On September 16, 2013, the Commission received from The
Quartz Corporation USA (“Quartz”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

36 FMSHRC Page 2669

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment became a final order of the Commission on
June 5, 2013. Quartz asserts that it attempted to contact MSHA multiple times regarding a
possible error in the proposed assessment, but did not receive a response until August 23, 2013.
The response on August 23 2013 was that MSHA no longer had jurisdiction. The Secretary does
not oppose the request to reopen, and urges the operator to take steps to ensure that future
penalty contests are timely filed.
Having reviewed Quartz’s request and the Secretary’s response, in the interest of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ 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 2670

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

October 20, 2014
Docket No.
A.C. No.

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

VA 2013-559
44-07252-325417 A1837

v.
PROFESSIONAL CONTRACTING,
LLC
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On September 24, 2013, the Commission received from
Professional Contracting a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

36 FMSHRC Page 2671

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 26, 2013, signed for by
Margaret Estep, and became a final order of the Commission on July 26, 2013. Eddie Joe Estep
asserts that he relocated in June and never received the proposed assessment. Estep further states
that he discovered the delinquency on September 13, 2013 upon checking MSHA’s Data
Retrieval System. The Secretary does not oppose the request to reopen, but notes that the address
of record was only changed on November 18, 2013. The Secretary urges the contractor to take
steps to ensure that future penalty contests are timely filed.
Having reviewed this request and the Secretary’s response, in the interest of justice, we
hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ 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 2672

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

October 21, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No.
A.C. No.

CENT 2013-675-M
03-01730-321084

v.
BENTON COUNTY STONE
COMPANY,
INC.
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On August 22, 2013, the Commission received from Benton
County Stone Company, Inc. (“Benton”) a motion seeking to reopen two citations within a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

36 FMSHRC Page 2673

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on May 14, 2013, and became a
final order of the Commission on June 13, 2013. Benton asserts that it mailed a contest to the
payment center, and encloses a fax copy dated June 7, 2013. The Secretary does not oppose the
request to reopen, and notes that the MSHA St. Louis, MO, payment center, received a payment
for the uncontested penalties, by check dated June 11, 2013. MSHA mailed a delinquency notice
on July 29, 2013, and received payment for the contested penalties by check dated August 13,
2013. The Secretary urges the operator to take steps to ensure that future penalty contests are
timely filed and mailed to the Civil Penalty Compliance Office in Arlington, VA.
Having reviewed Benton’s request and the Secretary’s response, in the interest of justice,
we hereby reopen Citation Nos. 8688645 and 8688646 and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §
2700.28.

/s/ 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 2674

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

October 21, 2014

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

Docket No.
A.C. No.

KENT 2013-1073
15-17993-320807-03

v.
CHEYENNE ELKHORN COAL
COMPANY, INC.

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On September 25, 2013, the Commission received from
Cheyenne Elkhorn Coal Company, Inc. (“Cheyenne”) a motion seeking to reopen two citations
within a penalty assessment that had allegedly become a final order of the Commission pursuant
to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that Cheyenne filed a timely contest on May 21, 2013, but MSHA
mistakenly processed only two of the four citations checked on the proposed assessment contest
form.

36 FMSHRC Page 2675

Having reviewed Cheyenne’s request and the Secretary’s response, we conclude that the
penalty assessments for Citation Nos. 8279020 and 8278023 were properly contested and never
became final. We therefore deny Cheyenne's motion as moot, and remand this matter to the
Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

/s/ 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 2676

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

October 21, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No.
A.C. No.

KENT 2014-2
15-19153-308172

v.
CHEYENNE MINING COMPANY, INC.
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On October 15, 2013, the Commission received from Cheyenne
Mining Company, Inc. (“Cheyenne”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on December 11, 2012, and
became a final order of the Commission on January 10, 2013. MSHA mailed a delinquency
notice on February 25, 2013, and referred the case to the Department of Treasury for collection

36 FMSHRC Page 2677

on June 13, 2013. Cheyenne asserts that its counsel mailed a timely contest, and discovered the
delinquency after receiving a collection notice. The Secretary does not oppose the request to
reopen, but notes that the Civil Penalty Compliance Office in Arlington, VA, has no record of
receiving a contest in this case.
Having reviewed Cheyenne’s request and the Secretary’s response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ 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 2678

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

October 21, 2014
Docket No.
A.C. No.

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

LAKE 2013-567-M
33-04318-299531 A

v.
CHARLES RECKNER, JR., employed by
BUCK RUN AGGREGATES
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On July 16, 2013, the Commission received a motion seeking
to reopen a penalty assessment under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that
had become a final order of the Commission.
Under the Commission’s Procedural Rules, an individual charged under section 110(c)
has 30 days following receipt of the proposed penalty assessment within which to notify the
Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 29 C.F.R. § 2700.27.
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on September 6, 2012, signed

36 FMSHRC Page 2679

for by C. Reckner, and became a final order of the Commission on October 9, 2012. Reckner
asserts that he was not aware that he had to contest his individual assessment separately from the
operator’s assessment. The Secretary does not oppose the request to reopen and confirms that the
operator’s assessment was contested and a Motion to Approve Settlement was filed in that case
on July 24, 2013.
Having reviewed this request and the Secretary’s response, in the interest of justice, we
hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ 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 2680

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

October 21, 2014
Docket No.
A.C. No.

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

WEST 2014-9-M
45-03716-324881

v.
CCZ, INC.
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On October 4, 2013, the Commission received from CCZ a
motion seeking to reopen a penalty assessment that had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 19, 2013, and became a
final order of the Commission on July 19, 2013. CCZ asserts that it mailed a timely contest to the
payment center along with a check for payment of the uncontested penalties. The Secretary does
not oppose the request to reopen, and notes that MSHA’s St. Louis, MO, payment center,

36 FMSHRC Page 2681

received a payment for the uncontested penalties by check dated June 24, 2013. MSHA mailed a
delinquency notice on September 3, 2013. The Secretary urges the operator to take steps to
ensure that future penalty contests are timely filed and mailed to the Civil Penalty Compliance
Office in Arlington, Virginia.
Having reviewed CCZ’s request and the Secretary’s response, in the interest of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ 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 2682

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

October 21, 2014
Docket No.
A.C. No.

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

WEVA 2013-1122
46-09353-318248-02

v.
BROOKS RUN MINING COMPANY,
LLC

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On July 23, 2013, the Commission received from Brooks Run
Mining Company, LLC (“Brooks”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).

36 FMSHRC Page 2683

Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that a pre-penalty contest was filed for Citation No. 6617100. However, the
proposed assessment was not contested and was in fact paid by check dated May 14, 2013.
Brooks asserts that it mistakenly paid the penalty and its counsel discovered the error on July 3,
2013. The Secretary does not oppose the request to reopen, and urges the operator to adopt
procedures to ensure that future penalty contests are timely filed.
Having reviewed Brooks’ request and the Secretary’s response, in the interest of justice,
we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of
penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ 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 2684

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

October 21, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No.
A.C. No.

VA 2013-565
44-07220-324619

v.
DOMINION COAL CORPORATION
BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On September 24, 2013, the Commission received from
Dominion Coal Corporation (“Dominion”) a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 18, 2013, and became a
final order of the Commission on July 18, 2013. Dominion asserts that its safety department

36 FMSHRC Page 2685

misplaced the assessment and didn’t forward it to its counsel. The error was discovered after
receiving MSHA’s delinquency notice, dated September 4, 2013. The Secretary does not oppose
the request to reopen, and notes that MSHA received a payment for the uncontested penalties, by
check dated June 27, 2013. The Secretary urges the operator to take steps to ensure that future
penalty contests are timely filed and mailed to the Civil Penalty Compliance Office in Arlington,
Virginia.
Having reviewed Dominion’s request and the Secretary’s response, in the interest of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ 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 2686

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
TH
721 19 STREET, SUITE 443
DENVER, CO 80202-2536
TELEPHONE: 303-844-3577 / FAX: 303-844-5267

October 1, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2014-193-M
A.C. No. 04-04149-338834

v.
NORDIC INDUSTRIES, INC.,
Respondent

Parks Bar Quarry
DECISION

Appearances:

Randy Cardwell, Conference & Litigation Representative, U.S.
Department of Labor, Vacaville, California, and Isabella Finneman, Esq.,
Office of the Solicitor, U.S. Department of Labor, San Francisco,
California, for Petitioner;
Bradley B. Johnson, Esq., Harrison, Temblador, Hungerford & Johnson,
Sacramento, California, for Respondent.

Before:

Judge Manning

This case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Nordic Industries, Inc., pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties presented
testimony, documentary evidence, and closing arguments at a hearing held in Sacramento,
California. Three section 104(a) citations were adjudicated at the hearing. Nordic Industries
operates the Parks Bar Quarry, a crushed stone operation, in Yuba County, California.
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Citation No. 8702904
On October 23, 2013, MSHA Inspector Roshan L. Gulati issued Citation No. 8702904
under section 104(a) of the Mine Act, alleging a violation of section 56.11012 of the Secretary’s
safety standards. (Ex. G-2). The citation alleges that there was a 2 foot wide opening on the
screen access platform in the Baxter Plant that was not adequately guarded to prevent a person
from falling through the opening. The citation states that a chain was installed to prevent travel
through the opening but the latch was broken so the chain offered no protection. The citation
further states that a maintenance crew member enters the area once a week.

36 FMSHRC Page 2687

Inspector Gulati determined that an injury was unlikely to occur but that an injury could
reasonably be expected to result in lost work days or restricted duty. He determined that the
operator’s negligence was moderate and that one person would be affected. Section 56.11012
mandates, in part, that “[o]penings above, below, or near travelways through which persons or
materials may fall shall be protected by railings, barriers, or covers.” 30 C.F.R. § 56.11012. The
Secretary proposed a penalty of $100.00 for this citation.
Discussion and Analysis
The basic facts are not in dispute. Inspector Gulati testified that when he started his
inspection on October 23, 2013, none of the four plants at the quarry were operating but an
employee was loading customer trucks. (Tr. 12-13). He started his inspection at the Baxter Plant.
He walked up the stairway next to the screen to the landing at the top. When he reached the top,
he noticed that there was a gap in the handrails around the landing. (Tr. 14-15). The gap was
about 2 feet wide. There was a chain attached at the top of the vertical post for the handrail on
one side of the opening but the latch hook was missing on the vertical post on the other side. (Tr.
16). As a consequence, the chain could not be fastened between the two vertical posts to provide
a visible warning of the hazard. It appeared to the inspector that a hook was present in the past
but that it had broken off. Id. He said the break did not appear to be fresh because it was not
shiny. Inspector Gulati testified that this condition “could create a hazard for [a] person to fall
through this unprotected opening.” (Tr. 15; Ex. G-3 at 2).
Inspector Gulati testified that there was no other way to access the shaker screen, which
was locked out at the time of his inspection. The drop-off from the landing to the chute for the
screen was about 3 feet. (Tr. 17). Although the chain could not be strung across the cited
opening, there were steel plates across the bottom of the opening. (Tr. 18; Ex. G-3 at 3). These
plates were attached to the chute and extended up above the middle rail of the adjacent handrails.
They directly abutted the landing. One plate was about 18 inches high and the other 24 inches
high. (Tr. 19). Inspector Gulati testified that a miner will travel to the landing once a week to
check on the condition of the screen and the handrails. (Tr. 19-20). Miners would also go to the
landing to perform routine maintenance as needed.
Inspector Gulati believes that the cited condition violated section 56.11012 because the
top chain, “which subs as a handrail,” was not “functional at the time of [the] inspection.” (Tr.
21). He determined that the landing at the top of the stairway was a “travelway” because
employees “did access this place during operation for workplace examination and during
maintenance.” (Tr. 22). The inspector considered the violation to be obvious. (Tr. 23).
Richard Hamilton, the foreman at the Parks Bar Quarry, testified that the landing at the
top of the stairway next to the shaker screen is a work platform that is used to “gain access to the
screen, the shaker deck, for maintenance and inspection.” (Tr. 76). He said that there was no
other reason for a miner to be on this platform. Miners do not walk or travel on this platform to
get from one place to another. (Tr. 78-79). The plant is always locked out and tagged out when
performing these functions and the chain would need to be unlatched from one side while
performing this work. (Tr. 76). He had never noticed that the latch was broken on one side and
believed it occurred a few days prior to the inspection. (Tr. 77). The plant was locked out for

36 FMSHRC Page 2688

several days preceding the day of Inspector Gulati’s inspection so a pre-operational examination
was not performed. (Tr. 78). Hamilton believes that the steel plates on the side of the “rip rap
chute” prevented a miner from falling off the platform. (Tr. 78).
The principal issue raised by Nordic Industries concerns the definition of “travelway” as
used in the safety standard. Travelway is defined as “a passage, walk or way regularly used and
designated for persons to go from one place to another.” 30 C.F.R. § 56.2. Nordic Industries
contends that the platform at the top of the stairway was not a travelway because it was not a
walk or way regularly used and designated for persons to go from one place to another. A miner
would only travel to the platform to perform work.
I find that the evidence establishes that the cited area was a travelway, as that term is
defined by the Secretary at section 56.2 and that Nordic Industries violated the cited safety
standard. It is clear that the platform was not a pedestrian walkway through the plant, but miners
walked across the platform to get to the screen for maintenance. As Hamilton testified, the
platform was used to “gain access to the screen, the shaker deck, for maintenance and
inspection.” (Tr. 76) (emphasis added). Although Hamilton testified that there would be no
reason for a miner to be upon the platform other than to perform maintenance, he admitted that
there were no barricades at the bottom of the stairs to prevent a miner from accessing the
platform. (Tr. 76, 86-87). Thus, a miner could walk up to the platform to visually inspect the
screen or to provide assistance during maintenance and the chain would not be present to provide
a warning or protection. I find that the steel plates at the bottom of the opening did not supply the
needed protection and, indeed, could present a tripping hazard.
I find that the gravity was low. Hamilton testified that company policy requires that the
screen be locked and tagged out before anyone walks up to the platform. (Tr. 76, 79). I credit this
testimony. The violation presented a stumbling hazard. As the inspector determined, the most
likely injury would be cuts, lacerations, or fractures. (Tr. 23). The likelihood of an injury was
low. The company’s negligence was low. The plant had been shut down for several days at the
time of the inspection and a pre-operational examination had not been performed. The violation
was not obvious given the company’s safety policies.
I MODIFY Citation No. 8702904 to reduce the gravity and negligence to low. A penalty
of $100.00 is appropriate for this violation.
B. Citation No. 8702905
On October 23, 2013, Inspector Gulati issued Citation No. 8702905 under section 104(a)
of the Mine Act, alleging a violation of section 56.11001 of the Secretary’s safety standards. (Ex.
G-5). The citation alleges that safe access was not provided to the operator of a John Deere
excavator. Two of the four foot holds upon both sides of the excavator were bent. The citation
alleges that the condition created a fall hazard, which could result in injuries.
Inspector Gulati determined that an injury was unlikely to occur but that any injury could
reasonably be expected to result in lost work days or restricted duty. He determined that the
operator’s negligence was moderate and that one person would be affected. Section 56.11001

36 FMSHRC Page 2689

mandates that “[s]afe means of access shall be provided and maintained to all working places.”
30 C.F.R. § 56.11001. Prior to the hearing, the Secretary filed an unopposed motion to amend the
penalty petition to allege, in the alternative, a violation of section 56.14100(b). That safety
standard provides that “[d]effects 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.” 30 C.F.R. §
56.14100(b). The Secretary proposed a penalty of $100.00 for this citation.
Discussion and Analysis
Inspector Gulati testified that the cited footholds on each side of the excavator were bent
inward or twisted upward. (Tr. 24-26; Ex. G-6, at 2-3). This condition created a slipping,
tripping, and falling hazard. (Tr. 26). Inspector Gulati was testified that if a miner tried to use
one of the damaged footholds, he could slip because it would not provide 3 inches of toe
clearance. (Tr. 59). The inspector was especially concerned that the equipment operator could
slip while dismounting the equipment. (Tr. 55). The second foothold on each side was not
damaged, but they were a little over 33 inches above ground level. (Tr. 58). Foreman Hamilton
told the inspector that the footholds frequently become damaged during normal operations. (Tr.
30).
Inspector Gulati determined that the cited condition was unlikely to result in an injury
because there were handholds available. (Tr. 32). He determined that the operator’s negligence
was moderate because the condition was obvious. (Tr. 33). He believed that the footholds were
damaged “some time back.” (Tr. 54).
Hamilton testified that the footholds had been in the same condition cited by the inspector
since 2007. (Tr. 80). He does not believe that the bent footholds presented a safety hazard. Id. No
miner had been injured while ascending or descending the excavator. (Tr. 81). He is the principal
operator of the excavator and he had never been concerned for his safety while entering or
exiting the excavator’s cab. (Tr. 80; Ex. R-6).
Nordic Industries argues that the test to be applied here is 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.” (Tr. 97-98). It argues that the evidence establishes that the footholds could
still be used and that anyone accessing the excavator would be able to maintain three points of
contact. Consequently, a reasonably prudent person would not believe that the cited conditions
created a hazard to miners.
The Commission has held that, under the reasonably prudent person test, “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); see also Asarco, Inc., 14 FMSHRC 941, 948 (June 1992). The Commission
stated in Ideal Cement Co., “the appropriate test is not whether the operator had explicit prior
notice of a specific prohibition or requirement,” but whether a reasonably prudent person,

36 FMSHRC Page 2690

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[].” 12 FMSHRC 2409, 2415-16 (Nov. 1990). Therefore, with respect to a broadly worded
safety standard, if a reasonable person with knowledge of the particular facts, including facts
peculiar to the mining industry, would recognize the existence of a defect constituting a hazard
requiring corrective action within the purview of the applicable regulation, the operator has
sufficient notice of the standard.
Both section 56.11001 and 56.14100(b) are broadly worded safety standards. I find that a
reasonably prudent person would conclude that the bent footholds were a defect on the excavator
that affected safety. I also find that a reasonably prudent person would conclude that Nordic
Industries did not maintain a safe means of access to the cab of the excavator, which was a
working place. The risk of injury will be particularly notable when a miner is descending from
the cab of the excavator.
The Commission has held that a violation of the MSHA’s guarding standard requires a
“reasonable possibility of contact and injury” that includes “contact stemming from inadvertent
stumbling or falling, momentary inattention, or ordinary human carelessness.” Thompson
Brothers Coal Co., Inc., 6 FMSHRC 2094, 2097 (Sept. 1984). To determine whether a
reasonable possibility exists, the Commission stated that all “relevant exposure and injury
variables, e.g., accessibility of the machine parts, work areas, ingress and egress, work duties,
and as noted, the vagaries of human conduct” must be considered. Id.
The same principles apply with respect to this citation. As a result of inattention, fatigue,
and environmental factors such as bad weather, a miner may slip and fall while exiting the cab
because he was unable to maintain a good foothold regardless of maintaining three points of
contact. The miner could easily sustain scrapes, bruises, or more serious injuries. As Inspector
Gulati recognized, such an event was not reasonably likely. I find the Secretary established a
violation of both safety standards, but I base my decision upon a violation of section
56.14100(b). The gravity was only moderately serious.
I find that the violation was the result of Respondent’s low negligence. I credit the
testimony of Hamilton that at least one of the footholds was damaged since 2007, soon after
Nordic Industries purchased the excavator. (Tr. 80). Hamilton normally operates the excavator
and he credibly testified that he never had any difficulty accessing the cab or exiting the cab and
that he never slipped while doing so. Id. Hamilton genuinely believed that the excavator was safe
to operate in the cited condition and his belief was not unreasonable under these circumstances.
(See e.g. Ex. R-6)
I MODIFY Citation No. 8702905 to reduce the negligence to low. A penalty of $100.00
is appropriate for this violation.
C. Citation No. 8702906
On October 23, 2013, Inspector Gulati issued Citation No. 8702906 under section 104(a)
of the Mine Act, alleging a violation of section 56.14130(i) of the Secretary’s safety standards.

36 FMSHRC Page 2691

(Ex. G-7). The citation alleges that the lap portion of the seatbelt on a Caterpillar wheel loader
was not maintained in functional condition and replaced when necessary to assure proper
performance. Specifically, the citation alleges that the 2 ¾ inch strap on the left side of the driver
was badly frayed over a length of about 4 inches and also contained cuts, holes or nicks. It states
that more than 50% of the webbing across its width was damaged and worn out.
Inspector Gulati determined that an injury was reasonably likely to occur and that an
injury could reasonably be expected to be fatal. He determined that the operator’s negligence
was moderate and that one person would be affected. Section 56.14130(i) states, in part, that seat
belts on wheel loaders “shall be maintained in functional condition and replaced when necessary
to assure proper performance.” 30 C.F.R. § 56.14130(i). The Secretary proposed a penalty of
$263.00 for this citation.
Discussion and Analysis
Inspector Gulati testified that when he examined the left side of the lap belt he saw that it
was “very, very badly nicked.” (Tr. 34, 36-39; Ex. G-8 at 3-5). He saw “holes,” “longitudinal
cuts,” and a “vertical tear across the bridge of that strap.” (Tr. 34). He characterized the belt as
“very badly worn out.” (Tr. 34). Inspector Gulati determined that the conditions he observed
violated section 56.14130(i) because the seatbelt “was not replaced in spite of the fact that it was
severely frayed, nicked, had holes, [and] had cuts, both longitudinally and across the width of the
belt.” (Tr. 42).1
Inspector Gulati was advised by Hamilton that the loader had not been subjected to a preoperational examination because the loader arrived at the mine site about a week earlier and was
never used. (Tr. 39). Hamilton also told the inspector that it was “available for use to top off the
customer trucks.” Id. The loader was not tagged out. (Tr. 41). Because the vehicle had not been
used at the mine, Inspector Gulati gave Nordic Industries an opportunity to perform a preoperational examination upon the loader before he inspected it. Inspector Gulati did not start his
inspection of the loader until he was told that the pre-operational exam was completed. (Tr. 4041).
The inspector was concerned that if Nordic Industries continued to use the loader with the
damaged seatbelt, the belt would fail during a serious accident. (Tr. 42). He cited a document
entitled the “Operator Restraint System for Off-Road Work Machines” produced by SAE
International, which recommends that seat belts be immediately replaced if the belt strap is
“nicked or frayed.” (Tr. 45; Ex. G-9 at 4).
Inspector Gulati determined that the violation was S&S because, with all the holes, nicks,
and cuts, the strength of the strap was compromised. The “minimal width of the strap” would not
hold a miner in the event of an accident. (Tr. 46). An injury would likely be fatal. Id. He
determined that Respondent’s negligence was moderate because he gave the operator the
opportunity to discover the violation during the pre-operational examination. (Tr. 47).
1

I credit Inspector Gulati’s description of the damage to the belt and his photographs
depicting the damage. (Tr. 34-39; Ex. G-8 at 3-5). Respondent’s photo was taken after the belt
was removed from the vehicle. (Ex. R-7).

36 FMSHRC Page 2692

Hamilton testified that Nordic Industries replaces seatbelts when they become damaged
or inoperable. (Tr. 83). He said that he felt rushed and intimidated during the pre-operational
examination that day because the inspector stood a few feet away. (Tr. 84). Hamilton believes
that before the loader was operated for the first time, the equipment operator would have
performed a more thorough pre-operational examination and discovered the problems with the
seatbelt. Hamilton testified that he would have shut down the loader until a new seatbelt arrived.
Furthermore, he testified that the defective seatbelt did not present a hazard because that loader is
only used to top off loaded trucks and its speed would not exceed five miles per hour. (Tr. 85). If
there was an accident at that speed, the seatbelt would fully restrain the loader operator. (Tr. 86).
Nordic Industries argues that the Secretary did not establish a violation of the safety
standard. More critically, it contends that the Secretary did not establish that the violation was
S&S. The loader was delivered to the mine about a week before the inspection, was not used, and
was not given a thorough pre-operational checkup. (Tr. 99). The operator would have replaced
the seatbelt before it was put into service.
I find that the Secretary established a violation of the safety standard. The cited
equipment was a wheel loader and the seatbelt was not replaced to assure proper performance. I
credit the inspector’s description of the damage as documented by his photographs. Nordic
Industries cited three cases to support its position that the citation should be vacated: Ammon
Enterprises, 30 FMSHRC 799, 813-14 (July 2008) (ALJ); Ron Coleman Mining, Inc., 21
FMSHRC 935, 935-36 (Aug. 1999) (ALJ); Buffalo Crushed Stone, 16 FMSHRC 2154, 2161
(Oct 1994) (ALJ). Those cases are inapposite. In one case the inspector testified that the seatbelt
would still function properly if the vehicle were involved in a rollover accident, in another the
inspector said that the seatbelt would still function despite the damage to the belt, and in one case
the citation was issued because the seatbelt was dirty and oil stained.
I find that the Secretary did not establish that the violation was S&S.2 The violation
created a discrete safety hazard. The issue is whether there was a reasonable likelihood that the
hazard contributed to by the violation would cause injury. A seatbelt protects the equipment
operator from injury in the event of an accident and helps keep him in his seat when traveling
over rough terrain. I credit the testimony of Hamilton that at the time of the August 2014
hearing, the loader was only used on an occasional basis to top off large double bottom dump
2

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 Engineering, Inc. and PBS Coals, Inc., 32
FMSHRC 1257, 1281 (Oct. 2010).

36 FMSHRC Page 2693

trucks that had been loaded using larger loaders. (Tr. 84-85). That was its intended use. As a
consequence, assuming continued mining operations, the loader will travel in a flat area away
from other traffic and it will not exceed a speed of five miles per hour. The hazard presented by
the violation was that the loader operator would be injured in the event of an accident due to the
condition of the seatbelt. I find that under the facts in this case it was unlikely that the seatbelt
would fail to protect the equipment operator in an accident and, as a consequence, the violation
did not contribute to the risk of an injury.3 I find that the gravity of the violation was serious and
that, while unlikely, a fatal injury was possible.
I find that Respondent’s negligence was moderate. Nordic Industries was given the
opportunity to perform a pre-operational check of the loader and its employees failed to inspect
the seat belt. My negligence finding considers that the loader had not been used at the mine prior
to this MSHA inspection.
I MODIFY Citation No. 8702906 to delete the S&S determination. A penalty of $100.00
is appropriate for this violation.
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-12). Respondent was issued three citations in the 24 months
prior to October 23, 2013, and only one of these citations was designated as S&S. Respondent is
a small operator. The violations were abated in good faith. The penalties assessed in this decision
will not have an adverse effect upon the ability of Respondent to continue in business. The
gravity and negligence findings are set forth above.

3

These facts are similar to East Coast Limestone, Inc., 19 FMSHRC 761, 765-66 (April
1997) (ALJ). In that case, the seatbelt was severely damaged, but the cited loader traveled at
speeds that did not exceed 10 miles per hour because it was only used to pick up material and
dump it into the crusher. The judge modified the citation to delete the S&S designation.

36 FMSHRC Page 2694

III. ORDER
I MODIFY the citations for the reasons set forth above. Nordic Industries, Inc., is
ORDERED TO PAY the Secretary of Labor the sum of $300.00 within 30 days of the date of
this decision.4

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

Distribution:
Randy L. Cardwell, Conference & Litigation Representative, Mine Safety & Health
Administration, 991 Nut Tree Road, 2nd Floor, Vacaville, CA 95687 (Certified Mail)
Isabella M. Finneman, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7th Street,
Suite 3-700, San Francisco, CA 94103-6704 (Certified Mail)
Bradley B. Johnson, Esq., Harrison, Temblador, Hungerford & Johnson, 980 9th Street, Suite
1400, Sacramento, CA 95814 (Certified Mail)
RWM

4

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 2695

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

October 3, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
ROCK EXPRESS, INC.,
Respondent.

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2010-1236-M
A.C. No. 25-01215-229461
Docket No. CENT 2011-578-M
A.C. No. 25-01215-247122
Mine: CR 332

DECISION AND ORDER
Appearances: Pamela Mucklow, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
Terry Jensen, appearing pro se, Scottsbluff, Nebraska, for 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”) pursuant to section 105 of the Federal Mine Safety and Health
Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). The Secretary, on behalf of the Mine Safety and
Health Administration (“MSHA”), alleges two violations of 30 C.F.R. § 56.14130, a mandatory
safety standard regarding the use of seat belts and roll-over protective structures (“ROPS”) at
surface metal and nonmetal mines. Rock Express, Inc. (“Rock Express” or “Respondent”)
timely contested the citations.1
I.

STATEMENT OF THE CASE

In dispute are one section 104(d)(1) citation and one section 104(d)(1) order issued to
Rock Express at its CR 332 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
FMSRHC 2148, 2152 (Nov. 1989)), aff’d sub nom., Sec’y of Labor v. Keystone Coal Mining
Corp., 151 F.3d 1096, 1106–1107 (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 quotations
omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001).
Rock Express filed two answers, one regarding Citation No. 6587838 and one regarding
Order No. 6587840. I refer to them as “Citation Answer” and “Order Answer” respectively.
1

36 FMSHRC Page 2696

Citation No. 6587838 charges Rock Express with a violation of 30 C.F.R. § 56.14130(i)
for failing to maintain the seat belt of a Dresser 540 Loader. Order No. 6587840 charges Rock
Express with violating 30 C.F.R. § 56.14130(g) for an operator’s failure to wear a seat belt while
operating a Galion A550 Grader. The Secretary designated the citation and order each as
significant and substantial (“S&S”)2 and as the result of Rock Express’s unwarrantable failure to
comply with a mandatory health or safety standard.3 The Secretary proposes Rock Express pay a
penalty of $2,000 for the citation and $4,000 for the order.
Chief Administrative Law Judge Robert J. Lesnick assigned these consolidated dockets
to me, and I held a hearing in Gering, Nebraska.4 The Secretary presented testimony from
MSHA Inspector Daniel H. Scherer. (Tr. 13:11–24.) Rock Express presented testimony from
Mine Manager Bobbie D. Henderson. (Tr. 148:16–17.) The parties submitted post-hearing
briefs.5
II.

ISSUES

The Secretary argues that the condition of the Dresser 540 Loader, as well as mine
manager Henderson’s alleged failure to wear a seat belt while operating the Galion A550 Grader,
were properly cited as violations, that the allegations underlying the citation and order are valid,
and that the penalties proposed for Rock Express are appropriate. (Sec’y Br. at 34.) Rock
Express refused to stipulate that CR 332 was subject to the jurisdiction of the Mine Act and
argues that jurisdiction over CR 332 would not extend to the Galion A550 Grader used on the
access road adjacent to the site. (Tr. 8:4–10.) Rock Express denies either violation existed and
disputes the Secretary’s assertions regarding gravity and negligence. (Resp’t Br. at 1– 2.) Rock
Express further argues that the proposed penalties are inappropriate considering the size of its
operation and its inability to continue business. (Id.)
Although Rock Express did not stipulate that CR 332 was a “mine” subject to the
jurisdiction of the Mine Act, I note that it never litigated this issue during these proceedings.
Moreover, Rock Express not only filed a Legal Identity Report with MSHA for CR 332 in 2004,
but CR 322 has been issued a Mine ID number and Rock Express has paid citations issued
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.”
2

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.”
3

In this Decision, the hearing transcript, the Secretary’s Exhibits, and Rock Express’s
exhibits are abbreviated as “Tr.,” “Gov’t Ex. #,” and “Resp’t Ex. #,” respectively.
4

In this Decision, I refer to the Secretary Post-Hearing Brief as “Sec’y Br.,” and to Rock
Express’s Post-Hearing Brief as “Resp’t Br.”
5

36 FMSHRC Page 2697

during prior inspections. (Gov’t Ex. 1; Gov’t Ex.14.) Accordingly, I conclude that the Secretary
properly asserts jurisdiction over Rock Express’s CR 332 mine. See 30 U.S.C. § 803.
Manager Henderson also testified that the proposed fines have been a mental and
financial burden, which led him to shut down CR 332 despite customers’ offers of help.
(Tr. 154:11–15, 156:20–157:22.) However, mine operators bear the burden of proof for
questions of financial hardship. Broken Hill Mining Co., 19 FMSHRC 673, 677–78 (Apr. 1997).
The Commission has indicated, “[i]n the absence of proof that the imposition of authorized
penalties would adversely affect [an operator’s] ability to continue in business, it is presumed
that no such adverse effect would occur.” Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar.
1983), aff’d, 736 F.2d 1147, 1152–53 (7th Cir. 1984); see also Unique Electric, 20 FMSHRC
1119 (Oct. 1998) (expressing concern over creating an incentive for operators to wind down
their businesses to avoid payment of civil penalties). Here, Rock Express offered into evidence a
single-page, unaudited document purporting to show its finances for the fiscal year in which
Inspector Scherer issued the citation and order. (Resp’t Ex. 1.) Even if I were to credit Rock
Express’s financial document, the document only shows a single year in which Rock Express
incurred a loss of $37.39.6 (Resp’t Ex. 1.) Significantly, Rock Express did not disclose its total
assets. Cf. Heritage Res., Inc., 21 FMSHRC 626, 638 (June 1999) (ALJ) (finding no effect on
ability to continue in business in light of operator’s substantial assets). Moreover, Rock Express
provided testimony that customers were “begging” for their product and offering help. (Tr.
157:19–22.) Cf. Kennie-Wayne, Inc., 16 FMSHRC 2441, 2442–44 (Dec. 1994) (ALJ) (finding
penalty had no effect on ability to continue in business in light of operator’s future business
prospects). Therefore, I determine that Rock Express has not demonstrated by the
preponderance of the evidence that the proposed penalties would affect its ability to remain in
business.
Thus, the remaining issues before me are: (1) whether MSHA has jurisdiction over the
Galion A550 Grader; (2) whether the cited conditions constitute violations of the Secretary’s
mandatory health and safety standards; (3) whether the record supports the Secretary’s assertions
regarding gravity and negligence underlying each violation; and (4) whether the proposed
penalties are appropriate.
For the reasons set forth below, Citation No. 6587838 is MODIFIED to a section 104(a)
citation, remove the unwarrantable failure designation, and reduce the level of negligence to
“moderate.” In addition, Order No. 6587840 is AFFIRMED and amended to a section
104(d)(1) citation, as a matter of law.

I note that the Secretary contested the significance, not the validity, of this financial
information, after I admitted Resp’t Ex. 1. (Tr. 161:6–12, 165:7–8; Sec’y Br. at 32. )
6

36 FMSHRC Page 2698

III.
A.

BACKGROUND AND FINDINGS OF

Pit Operations at CR 332

Rock Express operated the CR 332 sand and gravel pit on leased property near Angora,
Nebraska. (Gov’t Ex. 1; Tr. 150:12–19, 154:11–15, 185:22–25.) A quarter-mile access road
connects the mine to a series of gravel roads that leads to a state highway.7 (Tr. 27:10–18,
172:21–23.) The mine access road is the “only access in and out of [the gravel pit].”
(Tr. 33:13–14.) The access road leads to a roadway that loops around the gravel pit.
(Tr. 27:20–25.) This loop creates a more efficient traffic pattern allowing trucks to receive their
payload while avoiding cumbersome turnarounds. (Tr. 33:16–25, 195:1–3.) At points where the
loop runs adjacent to the pit, Rock Express erected berms as necessary.8 (Tr. 34:3–8.)
Rock Express operated the CR 332 mine seasonally and had begun operations only “a
couple weeks prior” to the inspection. (Tr. 74:11–12.) Rock Express alternated between
crushing and hauling rock every few days as business conditions required. (Tr. 158:4–5.)
Henderson last operated the CR 332 mine on Thursday and Friday of the week prior to the
inspection in this case. (Tr. 38:1–3.) Among the equipment used on the mine site were a
Dresser 540 loader and a Galion A550 road grader. (Gov’t Ex. 11; Tr. 91:4–11, 94:7.) A few
other pieces of mining equipment were “piled up” at the end of the quarter-mile mine access
road.
(Tr. 25:3–7.)
As the mine manager, Henderson was in charge of health and safety at the mine site and
had ultimate responsibility for maintenance of equipment safety. (Gov’t Ex. 1; Tr. 37:11–15,
75:17–24, 165:16–18.) Henderson was present at the mine on a daily basis when mine
equipment was operating, often with just one other miner. (Tr. 76:3–7; 110:16–21.) The mine
had no history of injuries. (Tr. 145:19–21.)
B.

MSHA’s Inspection

At approximately 7:30 a.m. on Monday, July 8, 2010, Inspector Daniel H. Scherer
arrived at CR 332 for a routine E01 inspection. (Tr. 20:5–22.) Inspector Scherer became an
authorized representative with the right to conduct inspections in 2007. (Tr. 13:21–15:4.) His
prior experience included 16 years as an underground miner where he operated various types of
mobile equipment, such as loaders, designed for use in underground mines. (Tr. 15:8–19:5.) He
did not become a full-time special investigator until 2011, after the inspection. (Tr. 13:11–13.)
Upon arrival Scherer found no one at CR 332, so he called Henderson to inform him that he was
there to perform an inspection. (Tr. 34:21–25.) Henderson told Scherer that no one was
available to accompany him. (Tr. 35:16–22). Scherer then began to visually inspect the mine.
(Tr. 38:5–9.)
Mine Manager Henderson stated that an irrigation company owns the gravel roads in
part and that, despite “no trespassing” signs, these roads are open to the public. (Tr. 174:11–19.)
7

“Berm means a pile or mound of material along an elevated roadway capable of
moderating or limiting the force of a vehicle in order to impede the vehicle’s passage over the
bank of the roadway.” 30 C.F.R. § 56.2 (emphasis in original).
8

36 FMSHRC Page 2699

Beginning his inspection at the mouth of the access road, Scherer observed that the
Dresser 540 wheel loader was located in the pit, while the Galion A550 road grader was parked
at the entrance to the pit. (Gov’t Ex. 11; Tr. 90:5, 109:8–13.)
1.

Dresser 540 Loader

Scherer walked through CR 332 while observing roadways and equipment, including the
Dresser 540 Loader. (Tr. 38:5–9.) Rock Express had used this Dresser 540 loader at CR 332 for
approximately three years. (Tr. 203:16–17.) Scherer testified that the seat belt for the Dresser
540 Loader was frayed along both the upper and lower edges, oil soaked, brittle-looking, aged,
and weathered. (Tr. 39:15–19, 43:5–12; Gov’t Ex. 3.) The fraying was approximately one half
inch at deepest, while fraying in the one-fourth- to one-half-inch range spanned “probably 3
inches long.” (Tr. 46:20–47:2.) Scherer also testified that some manufacturers warn that oil
causes the material to deteriorate. (Tr. 48:19–21.) According to Scherer, most equipment
manufacturers also “put out literature” advising replacement of belts showing “fraying, cuts,
tears, [or] oil soaking.” (Tr. 49:2–6.)
Scherer stated that seat belt fraying can result in ejection of one miner from the loader.
(Tr. 64:12–15, 64:19–65:12, 71:10–20.) Scherer also explained that in case of ejection, “mining
history shows [miner operators are] often run [over] by the piece of equipment that they’ve been
operating and are crushed and it’s a fatal injury.” (Tr. 65:1–66:25) In Scherer’s opinion, the belt
had been in this condition for months, if not longer. (Tr. 73:19–22, 75:2–3.) Henderson offered
no explanation for the seat belt’s condition at the time of inspection. (Tr. 73:17–24.)
Scherer also noticed that one of the loader’s pair of tether straps was not connected.
(Gov’t Ex. 2; Gov’t Ex. 4; Tr. 39:20–40:2, 56:16–22.) This pair of tether straps ensures the seat
assembly, including the seat belt, stays anchored within the roll-over protection system
(“ROPS”) in case of roll-over. (Tr. 54:16–24.) In addition, both of the tether straps showed oil
soaking and “some cuts.” (Tr. 39:20–40:2.) Rock Express had been cited for not properly using
tether straps on a different loader just over a year prior to this inspection. (Gov’t Ex. 8; Tr.
79:6–11.)
Scherer testified that a properly functioning operator restraint system would secure the
operator and limit injury in case of roll-over or collision. (Tr. 54:2–8.) Scherer considered the
tether straps to be part of the seat belt assembly. (Tr. 55:7–10.) Based on his observations,
Scherer issued Citation No. 6587838 alleging, “the seat belt was not replaced when necessary to
assure proper performance” and “one of the tether straps was disconnected from the seat
assembly.” (Gov’t Ex. 2; Tr. 38:18–25.) He also designated this citation as both S&S and an
unwarrantable failure on the part of Rock Express. (Id.; Tr. 77:16–23.)
2.

Galion A550 Grader

Inspector Scherer then examined the Galion A550 Grader. When Scherer came to the
grader, he found the seat belt tied behind the seat. (Gov’t Ex. 9; Gov’t Ex. 10; Tr. 98:1–16.)
Henderson told Scherer at the time of inspection that he felt he did not need to wear a seat belt
when operating the grader and that Scherer was “overstepping.” (Tr. 107:8–12.) According to

36 FMSHRC Page 2700

Scherer, Henderson said, “I’m the only person who operates that road grader and I don’t – why
would I wear that thing? I don’t wear it.” (Tr. 94:20–22.) Henderson responded to the
Secretary’s interrogatories by stating: “[t]he correct quote would have been ‘I do not use the
seat belt because I have to stand so I get a better view of the blade.’ I am not a tall person!!”
(Gov’t Ex. 16.) Henderson also admitted he did not have a harness and safety line. (Tr.
99:9–16.) A little over a year prior to the citation, a Rock Express employee admitted that he did
not use a seat belt when operating a loader, resulting in a similar citation. (Gov’t Ex. 13; Tr.
112:16–16.)
Rock Express used the grader to repair and maintain the pit’s rough, uneven roads.
(Tr. 106:16–20.) According to Scherer, this working environment creates the intrinsic hazard
that the grader could tip over and eject the operator from the machine, which could result in
crushing or other fatal injures. (Tr. 100:6–21, 101:14–102:1, 106:18–19.) The access road at
CR 332 requires continual refurbishment because it lies in a drainage area—“a gully between the
hills.” (Tr. 24:2–11, 200:4–201:10.) Indeed, Rock Express had already repaired the road three
times that season alone. (Tr. 202:14–17.) Compounding the need for frequent repair,
channels—cut by drainage water and measuring four feet wide by two feet deep—run
intermittently along the length of the quarter mile access road. (Tr. 32:7–20.) In normal
operations, Scherer testified that graders will “flex and go and yaw and stuff” as its wheels
encounter ruts and potholes. (Tr. 103:16–24.)
Based on Henderson’s admission and his own observations, Scherer issued Order No.
6597840, alleging that Henderson “had operated the grader without wearing a seat belt for an
extended period of time.” (Gov’t Ex. 9.) He designated this order as both S&S and an
unwarrantable failure on the part of Rock Express. (Id.; Tr. 106:9–11, 110:24–111:10.)
IV.
A.

PRINCIPLES OF LAW

Regulatory Interpretation

First, the Commission determines whether or not a regulation is ambiguous. Walker
Stone Co. v. Sec’y of Labor, 156 F.3d 1076, 1080 (10th Cir. 1998). A regulation is ambiguous
when its meaning is open to “plausible and divergent interpretations.” Daanen & Janssen, 20
FMSHRC 189, 192 (Mar. 1998). The Commission “ascertain[s] the meaning of regulations not
in isolation, but rather in the context in which those regulations appear.” Wolf Run Mining Co.,
32 FMSHRC 1669, 1681 (Dec. 2010) (citing RAG Shoshone Coal Corp., 26 FMSHRC 75, 80 &
n.7 (Feb. 2004)). 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 a
meaning would lead to absurd results.” Jim Walter Res., Inc., 28 FMSHRC 579, 587 (Aug.
2006). Second, where the meaning of the regulation is ambiguous, the Commission determines
whether the Secretary’s interpretation of the regulation is reasonable and thus entitled to
deference. Mach Mining, LLC, 34 FMSHRC 1784, 1806 (Aug. 2012), aff’d, 728 F.3d 643 (7th
Cir. 2013).

36 FMSHRC Page 2701

B.

Fair Notice

The Commission’s test for notice is “whether a reasonably prudent person familiar with
the mining industry and the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416
(Nov. 1990). A wide variety of factors are relevant in determining whether an operator had
adequate notice of regulatory requirements, such as “the text of the regulation, its placement in
the overall regulatory scheme, its regulatory history, the consistency of the agency’s
enforcement, and whether MSHA has published notices informing the regulated community with
ascertainable certainty of its interpretation of the standard in question.” Lodestar Energy, Inc.,
24 FMSHRC 689, 694–95 (July 2002) (citations omitted).
C.

Significant and Substantial

An S&S violation is one “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety and health hazard.” 30 U.S.C. § 814(d)(1).
A violation is S&S “if, based on the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury of a reasonably
serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
test:

To establish an S&S violation, the Secretary must prove the four elements of the Mathies
(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) (approving the Mathies criteria); Austin
Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (same).
The Commission has also provided further guidance in applying the Mathies test. The
Commission has held that an inspector’s judgment is an important element in an S&S
determination. Mathies, 6 FMSHRC at 5. 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., 6 FMSHRC 1834, 1836 (Aug. 1984). Moreover, the Commission clarified
that “the 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 n.13 (Aug. 2012) (emphasis added) (citations omitted), aff’d sub nom., Peabody
Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014). Finally, the Commission
specified that the evaluation of the reasonable likelihood of injury should be made “in terms of
continued normal mining operations.” U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).

36 FMSHRC Page 2702

D.

Unwarrantable Failure

In Emery Mining, the Commission determined that an unwarrantable failure is
“aggravated conduct constituting more than ordinary negligence.” 9 FMSHRC 1997, 2001 (Dec.
1987). Unwarrantable failure is characterized by such conduct as “reckless disregard,”
“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003–04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc., 52 F.3d at 136 (approving the Commission’s unwarrantable failure test).
Whether conduct is “aggravated” in the context of unwarrantable failure may be
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); 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). These 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, 22 FMSHRC at 353. 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. Id.
E.

Civil Penalty

Although the Secretary porposes penalties, the Commission assesses penalties for
violations of the Mine Act de novo. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May
2000). When assessing a civil penalty, section 110(i) of the Mine Act requires that I consider six
criteria, 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 business, the gravity of the violation, and the demonstrated
good faith of the operator in attempting to achieve rapid compliance. 30 U.S.C. § 820(i). The
criteria are not required to be given equal weight. Thunder Basin Coal., 19 FMSHRC 1495,
1503 (Sept. 1997).
V.
A.

LEGAL ANALYSIS AND CONCLUSIONS OF LAW

Citation No. 6587838 — Seat Belt Maintenance Violation — Dresser 540 Loader

Inspector Scherer issued Citation No. 6587838 for the condition of a seat belt and tether
strap in the Dresser 540 Loader, pursuant to section 56.14130(i). Section 56.14130(i) provides
as follows: “[s]eat belts shall be maintained in functional condition, and replaced when necessary
to assure proper performance.” 30 C.F.R. § 56.14130(i). The Secretary argues that Rock

36 FMSHRC Page 2703

Express violated this standard because it either (1) failed to replace the lap belt when necessary
to assure proper performance or (2) failed to maintain one of the tether belts in functional
condition. (Sec’y Br. at 17.)
1.

Lap belt

The Secretary claims Scherer’s visual observations of dirt and oil stains, fraying, and cuts
sufficiently demonstrate the lap belt was functionally impaired and in need of replacement to
assure proper performance. (Sec’y Br. at 18.) In making the determination that the belt was
functionally impaired and needed to be replaced, Scherer relied on literature that suggests
replacing seat belts in similar condition to the belt found in the Dresser 540 Loader. (Sec’y Br.
at 17; Tr. 49:2–6.) However, Scherer admitted that the “[literatures’ recommendations] depend[]
on the individual belt manufacturer,” and he was unsure if he ever read literature from the
manufacturer of the lap belt in question. (Tr. 49:2–13.) Moreover, Scherer failed to document
existing literature. Because Scherer’s determination regarding the lap belt’s functionality relies
on undocumented literature that his own testimony indicates may not be applicable here, I do not
credit Scherer’s conclusion that Rock Express failed to replace the lap belt when necessary to
assure proper performance. Cf. Ron Coleman Mining, Inc., 21 FMSHRC 935, 936 (Aug. 1999)
(ALJ) (finding little probative value in the assertions of an inspector who failed to provide
adequate documentation from the seat belt manufacturer).
Other than Scherer’s testimony, the Secretary presented no evidence that suggests fraying
and oil soaking would impair the function or proper performance of the lap belt or seat belts of
similar condition. Cf. Id. at 936 (dismissing citation alleging a section 56.14130(i) violation
because MSHA failed to show mud and dirt imbedded in a seat belt impeded the seat belt’s use
by failing to test the functionality of the belt). Here, it is not apparent that “quarter [to] halfinch” fraying or dirt and oil stains render the seat belt not functional.9 Cf. Ammon Enters.,
30 FMSHRC 799, 814 (July 2008) (ALJ) (holding visual observation of a 0.75 inch tear on a
four-inch-wide seat belt to be insufficient to demonstrate the belt was not functional).
As the record before me does not establish whether the lap belt was functionally impaired or in
need of replacement, I conclude the Secretary has not demonstrated by a preponderance of the
evidence that Rock Express failed to maintain the seat belt in a functional condition or replace it
when necessary to assure proper performance.10
In his post-hearing brief, the Secretary misquotes Mine Manager Henderson as
stipulating that “the seat belts on the loader were severely frayed.” (Sec’y Br. at 18.) The
transcript shows Henderson said he was unaware the seat belt was severely frayed in a context
that indicates his disagreement with the Secretary’s assertions. (Tr. 170:4–11.)
9

SAE J386, which paragraph (h) of section 56.14130 incorporates by reference,
requires replacing frayed or heavily worn seat belts. Thus, the lap belt may violate section
56.14130(h). Still, failure to comply with section 56.14130(h) does not necessarily indicate
replacement is “necessary to assure proper performance” pursuant to section 56.14130(i). 30
C.F.R. § 56.14130(i) (emphasis added); cf. Daanen & Janssen, Inc., 18 FMSHRC 1796, 1803
(continued...)
10

36 FMSHRC Page 2704

2.

Tether Strap

The Secretary also asserts that the disconnected tether belt establishes the cited violation
because tether belts, if present, are part of a seat belt for purposes of section 56.14130(i). (Sec’y
Br. at 19.) For the reasons that follow, I determine section 56.14130(i) to be ambiguous and
accord deference to the Secretary’s reasonable interpretation. See generally Mach Mining, LLC,
34 FMSHRC at 1806. Based on that interpretation, I also conclude that the disconnected tether
belt violated section 56.14130(i).
The starting point of regulatory interpretation is the language of the regulation. Dyer v.
United States, 832 F.2d 1062, 1066 (9th Cir. 1987). As the Secretary reads the standard, “seat
belt” may refer to the “‘total system . . . which transfers the seat belt force to a machine.’”
(Sec’y Br. at 19 (quoting SAE J386 (1997).) Alternatively, “seat belt” could refer to a specific
part of the total system such as the physical lap belt worn in the seat. Given these two plausible
interpretations, I determine the regulation to be ambiguous. See generally Daanen & Janssen,
Inc., 20 FMSHRC at 192–93 (concluding that ambiguity exists when a regulation’s meaning is
open to “plausible and divergent” interpretations).
Where the meaning of the regulation is ambiguous, I must defer to the Secretary’s
reasonable interpretation. See Mach Mining, LLC, 34 FMSHRC at 1806. Here, the Secretary
argues tether straps are part of a seat belt for purposes of section 56.14130(i) because tether
straps are part of the operator restraint system. (Sec’y Br. at 19.) Thus, the Secretary interprets
“seat belt” to mean operator restraint system.11 The Secretary further defines operator restraint
system as the “total system composed of the seat belt assembly . . . and extension (tether) belts, if
applicable, which transfers the seat belt force to a machine.” (Sec’y Br. at 19 (quoting SAE J386
(1997).) For the reasons below, I determine the Secretary’s interpretation to be reasonable.
First, the Secretary’s interpretation is consistent with the language of the regulation.
Looking at the text of the regulation, I note that section 56.14130 does not provide a definition of
“seat belt” that excludes tether belts. I also determine that definitions in the SAE J386 do not
bind the Secretary. Although paragraph (h) incorporates “the requirement of SAE J386,”
30 C.F.R. § 56.14130(h), the definitions in SAE J386 are not requirements for purposes of
paragraph (h) because they “do not state mandatory requirements with which an operator must
comply.” Daanen & Janssen, Inc., 18 FMSHRC at 1801. Indeed, the portion of SAE J386
10 (...continued)

Oct. 1996) (ALJ) (determining that a missing label establishes a violation of section
56.14130(h) but does not impair functionality), aff’d, 20 FMSHRC 189 (Mar. 1998).
Moreover, the Secretary neither alleged a violation of section 56.14130(h) nor sought to plead
that in the alternative.
I note that the Secretary, through MSHA, uses “seat belts” as shorthand for “operator
restraint system” when it states the express purpose of the final rule amending section 56.14130
is “to update its requirements for operator restraint systems (seat belts). . . .” Seat Belts for OffRoad Work Machines and Wheeled Agricultural Tractors at Metal and Nonmetal Mines, 68 Fed.
Reg. 36,913, 36,913(2003) [hereinafter “Seat Belt Rule”].
11

36 FMSHRC Page 2705

containing definitions is separate from portions discussing technical requirements. As the
definitions in SAE J386 are not plainly incorporated into the regulation, I determine that the
Secretary’s interpretation is not plainly inconsistent with the language of the regulation even if
definitions in SAE J386 may indicate otherwise.12 See generally Plateau Mining Corp. v.
FMSHRC, 519 F.3d 1176, 1192 (10th Cir. 2008) (indicating the Secretary’s interpretation of his
own regulation is entitled to deference unless “‘plainly erroneous or inconsistent with the
regulation.’” (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997))).13
Second, the Secretary’s interpretation is consistent with the safety-promoting purposes of
the Mine Act. See generally Dolese Bros. Co., 16 FMSHRC 689, 693 (Apr. 1994) (requiring a
safety standard to be interpreted to further the objectives of the Mine Act). The Secretary’s
interpretation requires MSHA to consider all components that transfer seat belt forces when
determining whether a seat belt is functional. Indeed, a lap belt in optimal condition cannot
perform its function of securing a miner within a machine and the ROPS if the miner is strapped
to a seat that itself is ejected from the machine. As Scherer testified, “tether straps are designed
to ensure the seat assembly stays anchored within the ROPS . . . so [the miner and seat assembly]
don’t get ejected together or bounce around together.” (Tr. 54:16–23.) There is little sense in
securing a miner to a seat without securing that seat to the machine. Thus, the Secretary’s broad
interpretation allows MSHA to inspect seat belts as they actually function to affect miner safety.
Accordingly, I defer to the Secretary’s interpretation of the standard.
Separate from the issue of regulatory interpretation is whether the regulated party has
received fair notice of the Secretary’s interpretation of the regulation. Wolf Run Mining Co., 32
FMSHRC 1669, 1682 (Dec. 2010). MSHA previously issued Citation No. 6327197 to Rock
Express for a violation of section 56.14130(h) in another loader because of missing tether straps.
(Gov’t Ex. 8.) Because paragraph (h) and (i) both refer to seat belts, 30 C.F.R. § 56.14130, this
citation put Rock Express on notice that MSHA considers tether straps as seat belts for purposes
of section 56.14130. Moreover, I note that MSHA promulgated a final rule amending section
56.14130 in 2003 with the express purpose “to update its requirements for operator restraint
systems (seat belts) . . . .” Seat Belt Rule, 68 Fed. Reg. at 36,913. This language indicates “seat
belt[]” is shorthand for operator restraint system, and notifies the regulated community of the
Secretary’s interpretation. I therefore determine that Rock Express had adequate notice of the
Secretary’s interpretation of the regulation.
Because I have determined tether belts to be part of seat belts for purposes of section
56.14130, I must determine whether Rock Express failed to maintain the grader’s tether strap in

SAE J386 does not define seat belt, but it does provide a definition of seat belt
assembly that implies seat belts are in a separate category, and thus distinct, from tether belts.
12

I recognize that the SAE J386 states tether belts “may” rather than “shall” be used to
transfer seat belt forces, but the SAE J386 also states tether belts “must” meet force requirements
in all operating positions. This is consistent with the Secretary’s interpretation that tether straps
must be maintained in functional condition when present.
13

36 FMSHRC Page 2706

functional condition.14 I recognize that the regulation requires maintenance, which is different
than continuous performance. See generally Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301,
1302 (D.C. Cir. 2000) (indicating that “properly maintained” means something different than
“continuously functioning”). Here, the Secretary provided evidence that the tether strap was
disconnected at the time of inspection. (Gov’t Ex. 4.) Likewise, I determine that the Secretary
reasonably inferred the condition of the tether strap was the same during Rock Express’s
operations prior to the inspection as it was on the day of the inspection. Looking at the transcript
of the hearing and Rock Express’s pleadings and briefs, I note that Rock Express never
contended that the condition of the tether strap was different prior to the inspection. Moreover,
Inspector Scherer observed the condition of the tether belt while the Dresser 540 Loader was
located inside the pit, he found the loader’s tracks on a feed ramp in CR 332, and Rock Express
had been operating for a couple of weeks prior to the inspection. (Gov’t Ex. 11; Tr. 53:6–12,
74:11–13, 90:5.) As Inspector Scherer testified, tether belts keep miners secure when other
components of the operator restraint system fail, and disconnected tether belts cannot serve this
function. (Tr. 54:16–25, 56:23–57:2.)
Accordingly, I conclude that Rock Express violated section 56.14130(i) by failing to
keep the tether belt strap connected to the seat.
3.

Gravity and S&S

Rock Express’s violation of section 56.14130(i) establishes the first element of the
Mathies test for an S&S violation. The second element asks whether the violation contributed to
a discrete safety hazard inasmuch as the violation provides a measure of danger to safety. Here,
the discrete safety hazard is the risk of the miner and seat assembly getting ejected from the
machine together or being bounced around in the cab together. (Tr. 64:8–10.) Inspector Scherer
explained that the violation contributes to this hazard because a disconnected tether strap cannot
secure the seat assembly within the machine if the anchoring points fail. (Tr. 54:16–25.)
Therefore, the Secretary has 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 Commission clarified 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 at 1742 n.13 (emphasis
added). In other words, the hazard must be reasonably likely to result in an event in which there
is an injury. U.S. Steel Mining Co., 6 FMSHRC at 1836. Here, the hazard identified is a miner
strapped to a poorly secured seat assembly being ejected from the machine or bounced around in
the cab. (Tr. 64:8–10.)

Scherer additionally testified that the tether belt was frayed, dirty, and greasy.
(Tr. 78:11–12.) For reasons discussed supra Part V.A.1, I determine that these visual
observations are insufficient to establish the tether belt is not functional for purposes of section
56.14130(i).
14

36 FMSHRC Page 2707

I credit Scherer’s testimony that anchoring bolts can be reasonably expected to fail in the
context of continued normal mining due to a violent roll over or a tip-over. (Tr. 54:18); see also
U.S. Steel Mining Co., 7 FMSHRC at 1130 (indicating that an evaluation of the reasonable
likelihood of injury should be made in the context of continued normal mining operations);
Mathies, 6 FMSHRC at 5 (Jan. 1984) (noting that an inspector’s judgment is an important
element in an S&S determination). The Secretary also provided evidence that Rock Express
regularly operated the Dresser 540 Loader to climb the feed ramp in the vicinity of a skidsteer
loader, which subjected it to the risk of a violent rollover or collision. (Tr. 52:24–53:12; Sec’y
Br. at 23.) Further, Henderson admitted Rock Express uses the loader to fill washouts on the
access road when it is in poor condition. (Tr. 171:14.) Inspector Scherer credibly testified that
ejection from a machine is reasonably likely to cause crushing, blunt force, or even fatal injuries.
(Tr. 65:1–9.) In addition, he stated that bouncing around the cab is reasonably likely to cause the
miner to lose control of the machine, causing an even more injurious accident. (Tr. 66:7–12.)
Indeed, MSHA records show miners suffer fatal injuries when they are not properly secured
within the machine. (Gov’t Ex. 5; Gov’t Ex. 6.)
Further, the condition of the anchoring bolts does not diminish the seriousness of the
disconnected tether strap because the presence of redundant safety measures may indicate
recognition of the significant dangers associated with the operator restraint system. Cf. Buck
Creek Coal, Inc., 52 F.3d at 136 (indicating that an operator’s assertion that redundant safety
measures eliminate a serious risk “defies common sense” because “the precautions are
presumably in place . . . precisely because of the significant dangers. . . .”); see also AMAX Coal
Co., 19 FMSHRC 846, 850 (May 1997) (noting that the presence of alternative fire safety
equipment does not negate a significant risk of fire).
In view of the above, I therefore determine that the Secretary has met his burden of
proving that reasonably serious injuries were reasonably likely to occur and has thus satisfied the
third and fourth elements of Mathies. Because I have determined that the Secretary has met his
burden of proving the four elements of the Mathies test, I conclude that the Secretary has
established this violation was S&S.
4.

High Negligence and Unwarrantable Failure

The Secretary asserts Rock Express’s conduct constitutes high negligence and designated
the violation as an unwarrantable failure. Here, the Secretary contends that the the disconnected
tether strap was obvious, that the condition was dangerous, that Henderson knew or should have
known about this violation because he was the mine manager responsible for health and safety
and operated the loader 30% of the time, and that Respondent was on notice that greater efforts
were necessary for compliance. (Sec’y Br. at 25–26.) An operator’s conduct constitutes high
negligence where the operator “knew or should have known of the violative condition or
practice, and there are no mitigating circumstances.” 30 C.F.R. 100.3(d) at Table X. I note that
MSHA previously issued Citation No. 6327197 to Rock Express for violations in a different
loader for missing tether straps. (Gov’t Ex. 8.) I therefore determine that the citation put Rock
Express on notice of the regulation’s requirement to use its vehicles’ tether straps, and that Rock
Express should have known a disconnected tether strap presents the same safety hazard as a

36 FMSHRC Page 2708

missing tether strap. I further determine that Rock Express should have known the tether strap
was disconnected because its condition was visible upon opening the loader door. (Gov’t Ex. 4;
Tr. 60:13–15.) Despite this notice, it appears Respondent took no steps to abate the violative
condition in this case.
An unwarrantable failure determination involves many of the same factors as negligence.
San Juan Coal Co., 29 FMSHRC 125, 136 (Mar. 2007) (recognizing that a finding of high
negligence suggests an unwarrantable failure). However, an unwarrantable failure determination
additionally requires “aggravated conduct constituting more than ordinary negligence.” Emery
Mining, 9 FMSHRC at 2001. Viewing the factors of aggravated conduct in the context of the
factual circumstances in this case, I note my determination that the violation was obvious, that
Rock Express had been put on notice that greater efforts are necessary for compliance, and that
Respondent appears to have taken no steps to abate the violative condition. The Secretary has
also demonstrated that the violation poses a high degree of danger by meeting his burden of
proving this violation to be properly designated as S&S. See discussion supra Part V.A.3.
However, other factors weigh strongly against an unwarrantable failure designation.
Nothing in the record demonstrates the extent of the violation, whether the violation existed for a
significant length of time, or whether Henderson had actual knowledge of the violation. Indeed,
the violation is limited to one of two tether straps, which together form a single component of the
operator restraint system. (Tr. 39:20–40:2.) As the Secretary has not proven any other failures
in the system, I determine the violation was not extensive. I also note that Scherer found the
tether strap resting on top of a fire extinguisher (Gov’t Ex. 4; Tr. 56:20–21) rather than buried
under other items or clutter. The placement of the strap therefore suggests the violation occurred
fairly recently. In addition, the Secretary has not provided pre-operation reports or other
documentation suggesting this violation was brought to Henderson’s attention. Given the
apparently short duration of the violation, I determine that Henderson did not have actual
knowledge of the violation.
Although Rock Express was negligent in failing to connect the tether strap to the seat, the
Secretary has not met his burden of proving that Respondent’s conduct was aggravated. I
recognize that this violation exposed miners to significant dangers and followed an earlier
citation for similar conduct. However, the short duration, limited extent, and lack of actual
knowledge convince me that Rock Express’s failure to connect the tether strap was not
aggravated conduct constituting more than ordinary negligence. Based on the evidence before
me and the factors weighing against the unwarrantable failure designation, I therefore determine
that Rock Express’s conduct does not rise to the level of unwarrantable failure. These same
factors somewhat mitigate Rock Express’s negligence in this case. Accordingly, I also
determine Respondent’s level of negligence to have been moderate.
Given my above determinations, Citation No. 6587838 is MODIFIED to remove the
unwarrantable failure determination and reduce the level of negligence to “moderate.” Because
a section 104(d)(1) citation requires the violation to be designated as both S&S and an
unwarrantable failure, see 30 U.S.C. § 814, Citation No. 6587838 is also MODIFIED to a
section 104(a) citation.

36 FMSHRC Page 2709

5.

Civil Penalty

Under section 110(i) of the Mine Act, I must consider six criteria in assessing a civil
penalty. 30 U.S.C. § 820(I). I have affirmed the Secretary’s S&S designation. However, for the
reasons discussed above, I have modified the citation to remove the unwarrantable failure
designation and reduce the level of negligence to moderate. See discussion supra Part V.A.
Because the violation was not an unwarrantable failure, I have modified Citation No. 6587838 to
a section 104(a) citation. Accordingly, Citation No. 6587838 is not subject to the statutory
minimum penalty of $2,000.00 for a section 104(d)(1) citation.
With regard to the remaining section 110(i) factors, nothing in the record suggests that
Respondent did not abate this violation in good faith. In addition, nothing in the record suggests
that the proposed penalty is inappropriate based on the size of the mine. Rock Express failed to
meet its burden of proof showing that the penalties would affect Rock Express’s ability to
continue business. See discussion supra, Part II. Looking at the mine’s history of violations, I
note that there were only six citations issued to Rock Express at CR 332 between April 2009 and
the issuance of Citation No. 6587838 in July 2010. (Gov’t Ex. 14.) Two of these six violations
involved section 56.14130. (Id.) Both of those violations were issued pursuant to section 104(a)
and designated S&S. (Id.) Rock Express’s four other citations were also issued pursuant to
section 104(a) and were non-S&S. Thus, this modest history of previous violations mitigates
against the Secretary’s proposed penalty. Considering the section 110(i) factors, especially as
they relate to Rock Express’s degree of negligence, I conclude that a penalty of $850.00 is
appropriate for Citation No. 6587838.
B.

Order No. 6587840 — Seat Belt Usage Violation
1.

Jurisdiction extends to the Galion A550 Grader

Rock Express claims MSHA did not have jurisdiction to inspect, enter, or issue Order
No. 6587840 regarding the Galion A550 Grader because Rock Express uses the grader on an
access road leading to CR 332, and not within the gravel pit itself. (Gov’t Ex. 16; Order Answer
at 2.) However, “whether a mine operator’s equipment is covered by the Mine Act is not
determined by its location but rather by its function. . . .” Jim Walter Res., Inc., 22 FMSHRC 21,
n.11 (Jan. 2000) (citing W.J. Bokus Indus., Inc., 16 FMSHRC 704, 708 (Apr. 1994)). The Mine
Act extends jurisdiction to include vehicles “used in . . . the work of extracting such minerals . . .
.” 30 U.S.C. § 802(h)(1); accord Nat’l Cement Co. of Cal., Inc., 573 F.3d 788, 795 (D.C. Cir.
2009) (“[S]ubsection (C) [of the Mine Act], which covers mining-related equipment, clearly
encompasses mining vehicles . . . .”). Other Commission ALJs have found that section 3(h)(1)
of the Act extends to equipment necessary for activities that are beyond the actual act of
extraction, but still part of the overall mining process. See Bonanza Materials, Inc., 15
FMSHRC 1355, 1357 (July 1993) (ALJ) (holding that jurisdiction extends to “peripheral
activities which are functionally integrated to any degree” to mining operations); see also Kaiser
Aluminum and Chem. Corp., 3 FMSHRC 2296, 2299 (Oct. 1981) (ALJ) (holding that the phrase
“used in” includes indirect usage for purposes of the Mine Act).

36 FMSHRC Page 2710

Rock Express used the grader to repair the access road, so it could get its trucks in and
out of the gravel pit. (Tr. 152:25–153:2.) Henderson testified that he could not reach CR 332 in
his pickup truck without repairing the access road. (Tr. 171:5–8, 200:16–19.) Indeed,
Henderson worked a different job near Alliance on the day of the inspection because the access
road was washed out. (Tr. 151:25–153:2.) Moreover, using the grader to repair the access road
is a regular part of operations at CR 332 inasmuch as Henderson used the grader to repair the
road three times that season alone. (Tr. 172:3–9; Gov’t Ex. 16.) Here, mineral extraction work
at CR 332 does not occur unless Rock Express uses the Galion A550 Grader to maintain the
access road. The regular and necessary use of the Galion A550 Grader for extraction purposes,
albeit indirect, indicates that the grader is an integral part of the extraction process. Thus, I
determine that the Galion A550 Grader is “used in” mining activity for purposes of the Mine
Act. Accordingly, I conclude that the Secretary properly asserted jurisdiction over the Galion
A550 Grader.15
2.

Violation

Scherer issued Order No. 6597840 for Mine Manager Henderson’s alleged failure to
wear a seat belt while operating the Galion A550 Grader under section 56.14130(g). Section
56.14130(g) provides that “[s]eat belts shall be worn by the equipment operator except that when
operating graders from a standing position, the grader operator shall wear safety lines and a
harness in place of a seat belt.” 30 C.F.R. § 56.14130(g). Although Scherer did not observe
Henderson operate the grader at CR 332, Henderson admitted to not wearing a seat belt
whenever he operated the grader. (Gov’t Ex. 16; Gov’t Ex. 17; Tr. 94:20–22, 107:8–10.)
Furthermore, Scherer found the seat belt tied together behind the seat, thus supporting
Henderson’s admission that he never used the seat belt. (Tr. 94:11–16.) While it is possible to
comply with 30 C.F.R. § 56.14130(g) in lieu of a seat belt by wearing a harness and lifeline
while standing, Scherer testified that the grader did not have this equipment. (Tr. 143:4–5; Gov’t
Ex. 17.) Without a seat belt or harness, any usage of the grader establishes a violation of section
56.14130(g). Given Henderson’s admission, I conclude that Rock Express violated section
56.14130(g).
3.

Gravity and S&S

Rock Express’s violation of section 56.14130(g) establishes the first element of the
Mathies test for an S&S violation. The second element asks whether the violation contributed to
a discrete safety hazard inasmuch as the violation provides a measure of danger to safety. Here,
I credit Scherer’s testimony that failing to wear a safety restraint exposes a miner to the risk of
slipping or falling out of the ROPS or vehicle, especially when standing. (Tr. 102:18–103:4.) I
therefore determine that the Secretary has met his burden of proof on the second element of
Mathies.

Because I have determined MSHA properly asserted jurisdiction over the Galion A550
Grader, I need not reach the issue of jurisdiction regarding the access road itself.
15

36 FMSHRC Page 2711

The third and fourth elements of Mathies ask whether the safety hazard is reasonably
likely to contribute to a reasonably serious injury. Henderson admitted he regularly stands while
using the grader on an access road in conditions that he could not cross with a pickup truck.
(Gov’t Ex. 16; Tr. 171:5–8, 200:16–18.) There are channels four feet wide and two feet deep cut
by drainage water running intermittently along the length of the quarter mile access road. (Tr.
32:7–20.) Scherer testified that moments of inattention or distraction can lead to the wheel going
off the edge of the access road, or going over a berm along the edge of the pit, which would
result in forces capable of ejecting an unbelted miner, even at typical operating speeds. (Tr.
106:5–8, 144:11–145:6.) Given this uneven ground, the evidence demonstrates that a miner is
reasonably likely to sustain injuries after being ejected from the machine. Cf. Bob Bak Constr.,
28 FMSHRC 817, 820 (Sept. 2006) (ALJ) (holding that failure to wear a seat belt on a slight
slope was S&S). Moreover, Scherer testified that MSHA Fatalgrams and accident reports show
miners are reasonably likely to be thrown from their equipment and run over, which would
“likely result” in a fatality. (Tr. 101:21–102:7.) Scherer testified that Rules to Live By, an
MSHA publication, shows seat-belt related accidents contributed to 60 or 70 percent of fatalities
during the 10 years prior to publication. (Tr. 78:23–79:3.) I therefore determine that the
Secretary has met his burden of proving that reasonably serious injuries were reasonably likely
to occur and has satisfied the third and fourth elements of Mathies.
Based on my determinations above, I therefore conclude that the Secretary properly
designated the violation as S&S.
4.

High Negligence and Unwarrantable Failure

The Secretary designated this violation as an unwarrantable failure and characterizes
Rock Express’s negligence as high. In support of his allegations, the Secretary points to
Henderson’s official capacity, his repeated failure to use a seat belt or harness, the high degree of
danger of operating this machine while standing with no restraint system or harness, and a
previous citation for violating section 56.14130(g) that he argues put Rock Express on notice
that greater efforts were needed for compliance. (Sec’y Br. at 30–31.)
Viewing the factors of aggravated conduct discussed in Consolidation Coal in the context
of the factual circumstances in this case, I find that the evidence before me supports the
Secretary’s unwarrantable failure designation. See Consolidation Coal, 22 FMSHRC 340, 353
(Mar. 2000).
Henderson’s testimony and responses to the Secretary’s discovery requests indicate that
his disregard for seat belt safety likely extended to every time he had used the grader, which
suggests the violation existed for a significant length of time. (Tr. 94:20– 22.) This repeated,
deliberate failure to wear a seatbelt on the grader also indicates that the violation was extensive.
(Id.) Further, Rock Express was put on notice that greater efforts were necessary for compliance
when MSHA issued a citation during the previous year for another section 56.14130(g)
violation. (Gov’t Ex. 13; Tr. 112:14–16.) In addition, Rock Express made no efforts to abate
this violative condition by instituting policies that ensure seat belt use. Instead, the operator tied
the seat belt behind the seat in deliberate violation of the regulation. (Tr. 94:11–14.) The
Secretary has also met his burden of proving this violation to be properly designated S&S, which

36 FMSHRC Page 2712

indicates a high degree of danger. See discussion supra Part V.B.3. The violation was obvious
and deliberately disregarded. I find this deliberate disregard especially troubling because the
need to wear a seat belt is not only a Mine Act requirement, but a general safety principle for all
who operate motor vehicles of any kind. Finally, Henderson’s admission indicates knowledge of
the violative condition. (Gov’t Ex. 16.)
I further note that several Commission Administrative Law Judges have found seat belt
violations to be unwarrantable in the presence of similar evidence, which I find persuasive. See
e.g., Portable Rock Prod. Co., 22 FMSHRC 973, 977 (Aug. 2000) (ALJ) (indicating that a
failure to wear a seat belt was unwarrantable because the requirement was discarded “with
impunity”); Ron Coleman Mining Inc., 21 FMSHRC at 938–39 (holding that a safety
coordinator’s violation was an unwarrantable failure considering his official capacity); Robert L.
Weaver, 21 FMSHRC 370, 375 (Mar. 1999) (ALJ) (holding that failure to wear a seat belt was
an unwarrantable failure violation because a prior seat belt violation provided notice). After
examining the facts of this case in the context of the relevant factors, I conclude that the
Secretary met his burden of proving that the violation was properly designated as an
unwarrantable failure and that Rock Express’s negligence was properly characterized as high.
5.

Civil Penalty

I take note of Rock Express’ small size and limited history of violations, as discussed
supra, Part V.A.5. I also note that Rock Express failed to meet its burden of proof showing that
the penalties would affect its ability to continue in business. See discussion supra Part II. In
addition, I have affirmed the Secretary’s allegations regarding the gravity of the violation and
Respondent’s degree of negligence. The complete failure to wear any sort of restraint placed
Henderson at risk of a fatal injury. More importantly, the conduct of Rock Express constitutes
more than ordinary negligence. Henderson is responsible for health and safety, yet showed a
complete disregard for seat belt safety. Lastly, I note nothing in the record suggests that Rock
Express failed to abate the violation in good faith. Because this is a section 104(d)(1) citation, I
am bound by the $2,000.00 statutory minimum.16 30 U.S.C. § 820(a)(3)(A). Nonetheless, given
the section 110(i) factors, especially as they relate to Respondent’s negligence, I conclude that
the Secretary’s proposed penalty of $4,000.00 is appropriate for Order No. 6587840.

Because Citation No. 6587838, which was issued as a section 104(d)(1) citation, was
amended to a section 104(a) citation, and there is no evidence of the issuance of any other
section 104(d)(1) citation within the previous 90 days prior to the issuance of Order No.
6587840, the latter must be reduced to a section 104(d)(1) citation by operation of law. 30
U.S.C. § 814.
16

36 FMSHRC Page 2713

VI.

ORDER

In light of the foregoing, IT IS ORDERED that Citation No. 6587838 is MODIFIED to
a section 104(a)(1) citation, removing the unwarrantable failure designation and lowering the
level of negligence from “high” to “moderate.”
It is further ORDERED that Order No. 6587840 is MODIFIED to a section 104(d)(1)
citation by operation of law but is affirmed in all other aspects. Rock Express is ORDERED to
PAY a penalty of $4,850.00 within 40 days of this Order.

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

Distribution:
Gregory Tronson, Esq., U.S. Department of Labor, Office of the Solicitor, Cesar E. Chavez
Memorial Building, 1244 Speer Blvd., Suite 216, Denver, CO 80204
Terry Jessen, Owner, Rock Express, Inc., P.O. Box 1140, Scottsbluff, NE 69361
/mlb

36 FMSHRC Page 2714

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania Avenue, NW, Suite 520N
WASHINGTON, DC 20004
TELEPHONE: 202-434-9953 / FAX: 202-434-9949

October 3, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA)
Petitioner,

CIVIL PENALTY PROCEEDINGS:
Docket No. WEST 2009-1323
A.C. No. 05-03836-192254

v.

Docket No. WEST 2010-38
A.C. No. 05-03836-195088
Docket No. WEST 2010-578
A.C. No. 05-03836-207148
Mine: Foidel Creek

TWENTYMILE COAL COMPANY,
Respondent.
Before: Judge Barbour

DECISION ON REMAND
On August 26, 2014, the Commission reversed in part the court’s underlying decision
(34 FMSHRC 2138 (August 2012)). The Commission found that in Docket No. WEST 2010578-M, the court erred factually with regard to Order No. 8460435.1 The Commission held that
the subject on-shift examination was conducted during a production shift. 36 FMSHRC (Aug.
2014) (slip op. 2-5). The Commission therefore reinstated the order and remanded the matter to
the court to determine whether the examination was inadequate as alleged and, if so, whether the
violation was a significant and substantial contribution to a mine safety hazard (“S&S”) and the
result of an unwarrantable failure by Twentymile Coal Company (“Twentymile”). Slip op. at 5.
THE ORDER
Order No. 8460435 states:
An inadequate on-shift examination was conducted
for the 8 Main North belt conveyor. The latest
beltline examination was conducted between 07:30
a.m. and 08:00 a.m. The hazards associated with
this order were not entered in the record books
1

The court had vacated the order based on its conclusion that the Secretary failed to
prove coal was produced during the shift for which the on-shift examination was conducted. 34
FMSHRC at 2171-72.

36 FMSHRC Page 2715

for either 8/10/09 [or] 8/11/09. The hazards of
the coal accumulations are in contact with
the return belt, as well as dried coal fines on the
hardware and belt roller clusters. The
conditions were cited in citation # 8460434
issued on 8/11/09. The violation resulted from
unwarrantable failure based on the extensive
accumulations which were obvious to anyone
concerned with safety.
Gov’t Exh. 1.
The order was issued on August 11, 2009, after Mine Safety and Health Administration
Inspector Randy Gunderson observed accumulations of coal and coal fines along the 8 Main
North Belt at Twentymile’s Foidel Creek Mine.2 Tr. 291-292. Gunderson’s description of the
accumulations is set forth in the court’s underlying decision and is incorporated by reference into
this remand decision. 34 FMSHRC at 2168. Significantly, the accumulations were extensive, so
much so that there were places where black accumulations were contacting the bottom belt of the
conveyor. Id. There also were dry coal fines on the belt structure and on the belt rollers. Id. In the
inspector’s opinion, the accumulations were “obvious.” Id. (citing Tr. 300). Further, and as
explained in the underlying decision:
Gunderson thought it likely that the
accumulations had come into existence at
a “progressive” rate. Tr. 300. “It could be a
week, a couple of days. It could be a
month.” Id. He based his belief on “[j]ust
experience.” Id.
34 FMSHRC at 2169.
2

The accumulations found by Gunderson are described in Citation No. 8460434, August
11, 2009. The citation states:
Coal accumulations have been allowed to exist
along the 8 North Main belt conveyor, from the
tail piece to the take-up. The accumulations of
coal have piled high enough to come in contact
with the return belt and rollers, ranging in depth
to 1' 8", 6' wide and 600 feet in length. Dry coal
fines have accumulated on the belt structure, and
around the roller clusters. This belt was in
operation just prior to this inspection. All coal
accumulations, both on the hardware and under
the belt, shall be cleaned, in their entirety, and
the area rock dusted.
Gov’t Exh. 2.

36 FMSHRC Page 2716

Equally important, Gunderson testified that on August 10, he cited the company for other
extensive accumulations of coal on the same section. In addition, he cited the company for
extensive accumulations of coal fines in a crosscut. 34 FMSHRC at 2169. He discussed the
August 10 citations with company management officials. Id.
After finding and citing the extensive accumulations on August 11, Gunderson also cited
the company for violating section 75.362(b), the standard requiring on-shift examinations for
hazardous conditions along belt conveyor haulageways. Gunderson believed the on-shift
examination on August 11 was inadequate in that the extensive accumulations Gunderson found
on August 10 and August 11 were not reported by the on-shift examiner and recorded in the
examination book. In Guderson’s opinion, the company’s failure to adequately conduct the onshift examination was an S&S violation of the standard and was the result of the company’s
unwarrantable failure to comply. Gov’t Exh. 1.

THE VIOLATION
In reversing the court, the Commission found that Twentymile’s August 11 “early
morning examination” (slip op. 4) was conducted during the “graveyard shift,” that coal was
produced during that shift, and that the on-shift examination was required to be adequate. Slip
op. 5. In considering the question on remand, the court concludes that the examination was in
fact not adequate and that Twentymile violated section 75.362(b). The court reaches this
conclusion because it finds logical and persuasive the testimony of Gunderson that the extensive
accumulations came into existence at a “progressive” rate. Tr. 300. Gunderson could not rule out
that the accumulations he observed along the belt on August 11 developed following the subject
on-shift examination, however, he thought it unlikely. Id. In the court’s view the accumulations
were so extensive, the only reasonable conclusion to draw from the evidence is that for the most
part they were present when the on-shift examination was conducted during the grave yard shift.
There is in fact nothing in the record to suggest a plausible reason for the extensive
accumulations other than a multi-shift failure to note them and clean them up.
Guderson speculated that the examiner did not report the accumulations because he
“wasn’t looking hard enough. ” Tr. 316. The accumulations were “obvious” (Tr. 300) and a less
generous but more reasonable conclusion to draw from the testimony is that the on-shift
examiner, who traveled the belt line when the accumulations were present, in fact, saw the
accumulations, but failed to report their presence. The court therefore finds that the presence of
the extensive accumulations during the examination and the failure to mention the hazard in the
on-shift examination report establishes that the on-shift examination was indeed inadequate and
that the violation occurred as alleged.

36 FMSHRC Page 2717

S&S and GRAVITY
The court described the legal frameworks for determining the S&S nature of a violation
and the gravity of a violation in its underlying decision and it incorporates the frameworks here.
34 FMSHRC at 2157-2158. Regarding the S&S nature of the violation, there was a violation of
section 75.362(b) thus satisfying the first Mathies criterion. The court further finds that the other
Mathies criteria have been met. The violation contributed to a discrete safety hazard in that
failure to report the accumulations meant the hazard of a fire along the beltline was not
eliminated. Obviously, the hazard posed serious dangers to miners working or traveling both
outby and inby the accumulations -- dangers from flames if the accumulations ignited and from
smoke and fumes caused by any ignition. Moreover, the hazard was reasonably likely to come to
fruition. The court accepts Gunderson’s testimony the accumulations included dry coal fines,
which “catch fire a lot easier than wet or damp coal fines” (Tr. 297) and that some of the
accumulations were actually in contact with potential ignition sources, the return belt and the belt
rollers. Gov’t Exh. 2; Tr. 295, 296, 298. That the resulting injuries in the event of an ignition
would likely have been reasonably serious, indeed even fatal, is beyond dispute. Thus, the
violation was S&S.
The violation also was very serious. The failure to report the accumulation meant that the
hazard it posed continued. It easily could have lead to one or more miners being injured or killed.
UNWARRANTABLE FAILURE AND NEGLIGENCE
The term “unwarrantable failure” is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). It is
characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,”
or “serious lack of reasonable care.” Id. at 2004-04; Rochester & Pittsburgh Coal Co., 13
FMSHRC at 193-194. Aggravating factors include the length of time a violation has existed, the
extent of the violative condition, whether the operator was on notice that greater efforts were
necessary for compliance, the operator’s efforts in abating the violative condition, whether the
violation posed a high degree of danger and the operator’s knowledge of the existence of the
violation. See Consolidation Coal Co., 22 FMSHRC 340-353 (March 2000); Mullins & Sons
Coal Co., 16 FMSHRC 192,195 (February 1994); Windsor Coal Co., 21 FMSHRC 997, 1000
(September 1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). The
circumstances of each case must be examined to determine if an operator’s conduct is
aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353.
The court finds that the violation was the result of Twentymile’s unwarrantable failure to
comply with section 75.362(b) and that in failing to comply, Twentymile was highly negligent.
The record establishes that Twentymile was on notice it had a problem with inadequate
examinations. I accept Gunderson’s unrefuted testimony that Twentymile was cited four times in
the previous 15 months for inadequate on-shift examinations and 16 times for inadequate preshift examinations. Tr. 332, 344. Gunderson stated that in his opinion the examiners were not
“doing a very good job.” Tr. 323. In the case of the subject violation, he understated their lack of

36 FMSHRC Page 2718

care. The accumulations were, as Gunderson testified, obvious and extensive. Tr. 300, 324. They
were virtually staring the examiner in the face. Yet, he ignored them. The result was that his
fellow miners faced a high degree of danger. In failing to comply with section 75.362(b), the
court finds the examiner and hence the company exhibited the degree of indifference and the
serous lack of reasonable care that is the mark of unwarrantable failure. Moreover, the
examiner’s lack of reasonable care equates to a high degree of negligence on the company’s part.
CIVIL PENALTY CRITERIA
The court set forth its findings with regard to the criteria of history of previous violations,
size of the operator, ability to continue in business and good faith abatement in its underlying
decision, and it incorporates those findings herein. 34 FMSHRC at 2184.
CIVIL PENALTY ASSESSMENT
ORDER NO. DATE
8460435
8/11/09

30 CFR §
75.362(b)

PROPOSED PENLTY
$4,000

ASSESSMEMT
$4,000

The violation was very serious and the company’s negligence was high. These findings
and the criteria referenced above warrant the assessment of the penalty proposed by the
Secretary.
ORDER
If it has not already paid the civil penalties previously assessed (34 FMSHRC at 2187),
within 30 days of the date of this decision on remand, Twentymile IS ORDERED to pay such
civil penalties in the amount of $15,262. Within the same 30 days, Twentymile IS ORDERED
to pay the civil penalty of $4,000 assessed above.
Further, if he has not already done so, within 30 days of the date of this decision on
remand, the Secretary IS ORDERED to modify and vacate the citations referenced for
modification and vacation in the court’s initial decision.
Upon payment of the civil penalties and upon modification and vacation of the citations,
this proceeding is DISMISSED.

/s/ David F. Barbour
David F. Barbour
Administrative Law Judge

36 FMSHRC Page 2719

Distribution: (Certified Mail)
Melanie Garris, U.S. Department of Labor, Office of Civil Penalty Compliance, MSHA, 1100
Wilson Blvd., 25th Floor, Arlington, VA 22209-3939
W. Christian Schumann, Esq.; Jerald Feingold, Esq., U.S. Department of Labor, Office of the
Solicitor, 1100 Wilson Blvd., Room 2220, Arlington, VA 22209-2296
Amanda Slater, Esq.; U.S. Department of Labor, Office of the Solicitor, MSHA Backlog, 1244
Speer Blvd., Suite 216, Denver, CO 80204
Christopher G. Peterson, Esq.; Page Jackson, Esq., Jackson Kelly, PLLC, 1099 18th Street, Suite
2150, Denver, CO 80202
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Ave, Suite
1500, Pittsburgh, PA 15222
/db

36 FMSHRC Page 2720

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

October 6, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) On Behalf
of Cameron Garcia,
Petitioner,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 2014-788-DM
MSHA Case No.: WE MD 14-17

v.
VERIS GOLD U.S.A., INC.,
Respondent.

Mine: Jerritt Canyon Mill Mine
Mine ID 26- 01621

DECISION DISSOLVING TEMPORARY REINSTATEMENT ORDER
On July 16, 2014, pursuant to section 105(c)(2) of the Federal Mine Safety and Health
Act of 1977 (“Act”) and 29 C.F.R. §2700.45, this court ordered the temporary reinstatement of
the Petitioner, Cameron Garcia, upon a finding that his Temporary Reinstatement Application
was “non-frivolous.” Sec’y of Labor o/b/o Cameron Garcia v. Veris Gold USA, 2014 WL
3725868, * 8-9 (ALJ)(July 2014).
On August 20, 2014, this court approved the terms of the parties’ Amended Joint
Agreement, which agreed to the temporary economic reinstatement of Cameron Garcia in lieu of
physical reinstatement.1 Within the Agreement, the parties stated:
The parties agree that the economic reinstatement shall remain in
place: (1) until such time as the Secretary declines to pursue a
discrimination proceeding on Mr. Garcia’s behalf; or, (2) if a
discrimination proceeding is brought by the Secretary, until the
disposition of the discrimination proceeding by the Commission;
or (3) an agreement of the parties. …
August 20, 2014 Decision Approving Temporary Economic Reinstatement Agreement, 2.

1

After reviewing the parties original Joint Motion, this court requested that parties
submit an amended motion with language pursuant to Vulcan Constr. v. FMSHRC, 700 F.3d 297,
310 (7th Cir. 2012) regarding the potential termination of Mr. Garcia’s temporary reinstatement.
The parties complied with the court’s request without delay or objection.

36 FMSHRC Page 2721

On September 30, 2014, MSHA’s Technical Compliance and Investigation Office issued
a letter to Mr. Garcia and the Respondent, stating that due to insufficient evidence, the Secretary
of Labor would not file a merits discrimination case with the Commission on Mr. Garcia’s
behalf. MSHA Determination Letter. On October 3, 2014 the Respondent filed a Motion to
Dissolve Mr. Garcia’s temporary reinstatement. Mot. to Dissolve. The Respondent stated that
they consulted with the Secretary on this matter and that the Secretary did not oppose the
dissolution of Mr. Garcia’s temporary economic reinstatement. Mot. to Dissolve, 1.
Several federal appellate courts have recently announced that for 105(c) discrimination
claims, “the temporary reinstatement provision ends when the Secretary’s involvement ends.”
Vulcan Constr. v. FMSHRC, 700 F.3d 297, 310 (7th Cir. 2012); See also North Fork Coal Corp.
v. FMSHRC, 691 F.3d 735, 744 (6th Cir. 2012) (holding that temporary reinstatement order must
be dissolved when the Secretary of Labor concludes there is no evidence of discrimination).
As such, binding precedent requires that this court’s July 16 Temporary Reinstatement
Order and the August 20 Temporary Economic Reinstatement Agreement be dissolved.
ORDER
This court’s July 16, 2014 Order directing the temporary reinstatement of Cameron
Garcia is hereby DISSOLVED. Furthermore, the terms and obligations of the August 20, 2014
Temporary Economic Agreement are TERMINATED effective September 30, 2014.2 Mr.
Garcia may elect to file a discrimination complaint on his own behalf with the Commission
within 30 days’ notice of the Secretary’s determination.3 30 U.S.C. 815(c) 3.

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

2

MSHA notified Mr. Garcia and the Respondent that it did not intend to pursue a 105(2)
complaint on September, 30, 2014. The parties’ August 20th Temporary Economic Agreement
stated that the temporary reinstatement would continue “until such time as the Secretary declines
to pursue a discrimination proceeding.” As such, the Respondent is obligated to compensate Mr.
Garcia per the terms of the Temporary Economic Reinstatement Agreement through September
29, 2014.
3

Mr. Garcia is directed, if he elects to file a Section 105 (c) (3) complaint, to file his
complaint by mail no later than October 30, 2014 to the: Federal Mine Safety and Health Review
Commission 1331 Pennsylvania Avenue, NW 520 N Washington, D.C. 20004-1710.

36 FMSHRC Page 2722

Distribution: (First Class U.S. Mail)
Cameron Garcia, 450 Castle Crest Dr., Silver Creek, NV 89815
Seema Patel, U.S. Department of Labor, Office of the Solicitor
90 Seventh Street, Suite 3-700, San Francisco, CA 94103
Peter Gould, Squire Patton Boggs (US) LLP
1801 California Street Suite, 4900 Denver, CO 80202

3
36 FMSHRC Page 2723

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Office of Administrative Law Judges
1331 Pennsylvania Avenue, N.W., Suite 520N
Washington, D.C. 20004

October 14, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JEFFERY HARRIS,
Petitioner,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 2014-935-DM
WE MD 14-22

v.
HANSON AGGREGATES MID-PACIFIC,
INC.,
Respondent.

Clayton Mine
Mine ID 04-00159

DECISION DISSOLVING TEMPORARY REINSTATEMENT ORDER
This temporary reinstatement proceeding is before me upon the Application for
Temporary Reinstatement brought by the Secretary of Labor (“Secretary”), on behalf of Jeffery
Harris, pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”).
30 U.S.C. § 815. The Secretary made his application on August 15, 2014, and Chief
Administrative Law Judge Robert J. Lesnick assigned this case to me on August 20, 2014.
On August 28, 2014, I issued an order approving the terms of the parties’ Settlement
Agreement and Joint Motion for Temporary Reinstatement. My August 28 Order temporarily -reinstated Harris and directed the Secretary to report to my law clerk regarding the status of his
investigation. According to the terms of the agreement, Harris’s temporary economic
reinstatement would terminate upon a finding by the Secretary that section 105(c)(1) of the Mine
Act has not been violated.
On October 9, 2014, MSHA’s Technical Compliance and Investigation Office issued a
letter to Harris and Hanson Aggregates Mid-Pacific, Inc. (“Hanson” or “Respondent”) stating
that due to insufficient evidence the Secretary would not file a merits discrimination case with
the Commission on Harris’s behalf. (MSHA Determination Letter at 1.)
Several federal appellate courts have recently determined that for section 105(c)
discrimination claims, “the temporary reinstatement provision ends when the Secretary’s
involvement ends.” Vulcan Constr. Materials, L.P. v. FMSHRC, 700 F.3d 297, 310 (7th Cir.
2012); see also N. Fork Coal Corp. v. FMSHRC, 691 F.3d 735, 744 (6th Cir. 2012) (holding that
temporary reinstatement order must be dissolved when the Secretary concludes there is no
evidence of discrimination). Thus, binding precedent requires that I dissolve my August 28,
2014, order.

36 FMSHRC Page 2724

WHEREFORE, it is hereby ORDERED that my August 28, 2014, order directing the
temporary reinstatement of Harris is hereby DISSOLVED. Furthermore, the terms and
obligation of the parties’ Settlement Agreement are TERMINATED effective October 9, 2014.
Harris may elect to file a discrimination complaint on his own behalf with the Commission
within 30 days’ notice of the Secretary’s determination.1 30 U.S.C. § 815(c)(3).

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

Distribution: (Via Electronic Mail & U.S. Mail)
Bruce L. Brown, Esq., U.S. Department of Labor, Office of the Solicitor, 300 Fifth Street,
Suite 1120, Seattle, WA 98104
(brown.bruce.l@dol.gov)
Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart PC, 1909 K Street, Suite 1000,
Washington, D.C. 20006
(Margaret.Lopez@ogletreedeakins.com)
Jeffery Harris, 3365 Gray House Lane, Stockon, CA 95206 (Via U.S. Mail Only)
/pjv

1

If Harris elects to file a section 105(c)(3) complaint, he is directed to file his complaint
by mail no later than November 10, 2014, to: Federal Mine Safety and Health Review
Commission, 1331 Pennsylvania Avenue, NW, Suite 520N, Washington, D.C. 20004

36 FMSHRC Page 2725

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

October 16, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE-2013-361
A.C. No. 01-03419-317249-01

v.
WARRIOR INVESTMENTS COMPANY,
INC.,
Respondent

Docket No. SE-2013-252
A.C. No. 01-03419-312649
Docket No. SE-2014-33
A.C. No. 01-03419-330771-01
Mine: Maxine-Pratt Mine

DECISION AND ORDER AFFIRMING BENCH DECISION
AND APPROVING SETTLEMENT
Appearances:

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the
Solicitor, Petitioner
J. D. Terry, Esq., Respondent

Before:
I.

Judge McCarthy
Statement of the Case

These cases are before me upon petitions for assessment of civil penalty 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 Birmingham, Alabama on April 3, 2014. Witnesses were
sequestered. After the hearing, the parties filed a Joint Motion to Approve Settlement and
Notice of Vacating Citation, which resolved all outstanding citations and orders left unresolved
at hearing.
Docket No. SE-2014-33 involves five citations, which the parties agreed to settle prior to
hearing, and one unresolved Section 104(g)(1) Order No. 8525679. At the hearing, the parties
agreed to file a post-hearing Settlement Agreement on the five settled citations, and joint
stipulation of facts and cross-motions for summary judgment on unresolved Order No. 8525679.
I left the record open for such filings. Tr. 269-74. After filing the joint stipulation of facts, the
parties agreed to settle that Order, as set forth in their Joint Motion. Specifically, the Secretary
decided to vacate that Order.

36 FMSHRC Page 2726

Docket No. SE 2013-361 involves a single 104(a) Citation No. 8524664 that the parties
resolved at the conclusion of the hearing. The outlines of the Settlement Agreement were placed
on the record and the undersigned left the record open for receipt of the written Settlement
Agreement. Tr. 267-69.
Docket No. SE-2013-252 involves a single Section 104(d)(1) unwarrantable failure
Citation No. 8524528 alleging a violation of 30 C.F.R. § 75.1501(a). 30 C.F.R. § 75.1501(a)
provides: “(a) For each shift that miners work underground, there shall be in attendance a
responsible person designated by the mine operator to take charge during mine emergencies
involving a fire, explosion, or gas or water inundation. 30 C.F.R. § 75.1501(a)(1) further
provides: “(1) The responsible person shall have current knowledge of the assigned location and
expected movements of miners underground, the operation of the mine ventilation system, the
locations of the mine escapeways and refuge alternatives, the mine communications system, any
mine monitoring system if used, locations of firefighting equipment, the mine’s Emergency
Response Plan, the Mine Rescue Notification Plan, and the Mine Emergency Evacuation and
Firefighting Program of Instruction.”
Specifically, Citation No. 8524528 alleges that on September 4, 2012, there was no one at
the Maxine-Pratt mine trained as a responsible person designated by the operator to take charge
during a mine emergency involving fire, explosion, or gas or water inundations. The gravity was
categorized as “reasonably likely,” the injury or illness that was reasonably expected to result
was alleged to be “lost workdays or restricted duty,” the violation was designated as “significant
and substantial, and the negligence was categorized as “high.”
At hearing, I issued a bench decision affirming Section 104(d)(1) Citation No. 8524528,
as written, and assessing the proposed penalty of $3,143. Having carefully reviewed the record,
I affirm my bench decision set forth below.
II.

Bench Decision Affirming 104(d)(1) Citation No. 8524528, As Written
“I'm going to find a violation. I'm going to affirm the
citation [Citation No. 852458] as written. I find that there
were no persons at the mine trained as responsible person
designated by the operator to take charge during a mine
emergency. I'm going to find that based on the credited
testimony of Inspector Weekly, that, in fact, there was a
statement made by Mr. Meadows that he didn't have training as
a responsible person at this mine. Mr. Meadows testified that he
had the training at another mine.
Also, there was an admission by Mr. Terry that, in fact, he
had not given the training because he had not gotten around to
it. Therefore, I would find that any responsible person training
that was given to the others was not effective under the Mine
Act. I find that the violation contributed to a discre[te] measure

36 FMSHRC Page 2727

of safety; i.e., the ability to get out of the mine in the event of an
emergency.
I find that the violation was significant and substantial. In
making this finding, I assume the existence of an emergency.
Specifically, I assume existence of a fire. I find that if a fire
occurred and there was not a responsible person designated to
direct the men out of the mine during the emergency, that that
would contribute to a hazard, the inability to escape that was
reasonably likely to result in serious injury as written, lost work
days or restricted duty; specifically, smoke inhalation.
Furthermore, I find that negligence is high. I base my
finding of high negligence on the admission by the Respondent
that it did not give the training and knew or should have known
that it should have been given.
Finally, I find that there is no evidence of mitigating
circumstances to reduce the negligence from high to a lower
level. I affirm the proposed penalty of $3,143.00.
We’ll adjourn for lunch . . . .
Tr. 177-79.
. . . . Prior to breaking for lunch I issued a bench decision
explaining why I was going to affirm the citation as written. While
I was walking to lunch I realized that I hadn’t specifically
explained my rationale for affirming the unwarrantable failure
order under (d) -- I’m sorry -- unwarrantable failure citation under
104(d)(1).
I hereby find that the citation as written was an
unwarrantable failure, that there was aggravated conduct that
constituted more than ordinary negligence; specifically, that there
was a serious lack of care on the Respondent's part for failing to
insure that there was an individual who had responsible person
training at this specific mine.
Addressing the seven factors that the Commission looks to
for an unwarrantable failure, I find that the duration of the
violation supports an unwarrantable failure finding. When
Superintendent Meadows became superintendent on May 8th of
2012, he had not received the responsible person training at this
mine, and that lasted until the date of the citation, which is

36 FMSHRC Page 2728

September 4th, 2012. Therefore, for several months it's been
established that there was no responsible person at the mine.
I find the violation was extensive.
There was no
responsible person trained for the entire mine at this mine under
the standard. Although Mr. Meadows, Superintendent Meadows
was trained at another mine as a responsible person, there's no
evidence presented and the Secretary has established through the
credible testimony of Inspector Weekly that there were no training
records, and through admissions by the Respondent's witnesses,
through the credited testimony of Inspector Weekly, that there was
no responsible person trained at this mine when the citation was
issued. Therefore, all of the other miners who received the training
that was given by Mr. Meadows prior to hi[s] receiving responsible
person training at this mine was ineffective. And I find that
constitutes an extensive violation because it covers the whole mine
without a responsible person trained in the event of an emergency
in regard to evacuation.
I further find that the Respondent knew or should have
known that a responsible person was not trained at this mine. The
unrebutted testimony of Inspector Weekly establishes that the
Respondent knew that the training should have been given and,
according to his testimony, Mr. Terry admitted that he knew the
training was required to be given but had not gotten around to that.
Mr. Terry was not called to rebut that testimony. Mr. Meadows
did not rebut that testimony because he did not recall the nature of
the conversation. So I find that the knowledge element supports
the unwarrantable failure finding, together with the duration of the
violation and the extensiveness of the violation.
I further find that the violation contributed to a high degree
of danger. Without a responsible person trained at this mine, I
credit Inspector Weekly's testimony that the miners may be
confused in the event of an emergency if there was a fire and they
were required to evacuate both as to who they had to take direction
from during the emergency and receiving the requisite training that
would affect their ability to escape. I assume the event of an
emergency, as I did in my S & S analysis. Therefore, I find the
failure to train a responsible person directly affects miners' ability
to escape in event of emergency.
I find the violation was also obvious because it's
specifically set forth in the regulations and the regulation requires
that a responsible person be designated and trained. I find that the
Respondent took no efforts to abate the citation before it was

36 FMSHRC Page 2729

written because it made no efforts to give the responsible person
training to Mr. Meadows. He had the training at another mine site
but did not have the training at this mine site.
The only factor that does not support an unwarrantable
failure finding is the notice factor. I find that MSHA did not give
the Respondent notice that greater efforts were necessary to
comply with 75.1501(a). However, I credit Inspector Weekly's
testimony that there was a PIL that was given to the industry
generally that put them on notice of this requirement.
Nevertheless, I don't find that specific notice required, and that
factor cuts against an unwarrantable failure finding.
Given that I've found a serious lack of care arising to more
than ordinary negligence based on the fact that six of the seven
factors establish an unwarrantable failure, I find the unwarrantable
failure and I affirm the citation as written.
Tr. 179-183.
Although my bench decision affirmed the proposed penalty of $3,143, I hereby make
clear I have evaluated the Secretary's proposed penalty in light of the principles announced in my
recent Big Ridge decision. Big Ridge Inc., 36 FMSHRC slip op. at 4-6 (July 19, 2014) (ALJ).
I find that the penalty proposed by the Secretary of $3,143 is consistent with the statutory criteria
set forth in section 110(i) of the Mine Act and with the public interest. 30 U.S.C. 820(i).
Accordingly, I assess a $3,689 civil penalty against Respondent for Citation No. 8524528.
III.

Joint Motion to Approve Settlement

I have reviewed the parties’ Joint Motion to Approve Settlement and Notice of Vacating
Citation for Docket Nos. SE 2013-361 and SE 2014-33. A reduction in penalties from
$11,854.00 to $4,896.00 is proposed under the Settlement Agreement.1
In Docket No. SE 2013-361, the parties request that Citation No. 8524664 be modified to
delete the significant and substantial designation and to reduce the negligence from “high” to
“moderate.”
In Docket No. 2014-33, the parties state that Order No. 8525679 has been vacated. The
Secretary’s discretion to vacate a citation or order is not subject to review. E.g., RBK Constr.
Inc., 15 FMSHRC 2099 (Oct. 1993). Citation No. 8525667 remains unchanged, but the parties
1

Pursuant to 29 C.F.R. 2700.1(b) and Federal Rule of Civil Procedure 12(f), I strike
paragraphs four and five from the motion as immaterial and impertinent to the issues legitimately
before the Commission. The paragraphs incorrectly cite and interpret the case law and
misrepresent the statute, regulations, and Congressional intent regarding settlement under the
Mine Act.

36 FMSHRC Page 2730

justify the reductions in penalties by stating there are legitimate factual and legal disputes
regarding gravity and negligence. The parties also request that Citation Nos. 8525669, 8525670,
and 8525671 be modified to reduce the negligence from “high” to “moderate.”
I have considered the representations and documentation submitted in this case, and I
conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i)
of the Act. Accordingly, I approve the parties’ Settlement Agreement as consistent with the
criteria set forth in section 110(i) of the Act and in furtherance of the public interest. The
settlement amounts are as follows:
SE 2013-0361
Citation No.

Assessment

Settlement

8524664

$6,115.00

$1,000.00

$6,115.00

$1,000.00

SE. 2014-0033
Citation No.

Assessment

Settlement

8525667

$540.00

$486.00

8525669

$946.00

$757.00

8525670

$1,795.00

$1,436.00

8525671

$946.00

$757.00

8527002

$460.00

$460.00

8525679

$1,052.00

$0.00

$5,739.00

$3,896.00
IV.

Order

For the reasons set forth above, Citation No. 8524528 is AFFIRMED, as written.
WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that Citation No. 8524664 be MODIFIED to delete the significant and
substantial designation and to reduce the negligence from “high” to “moderate.”
It is ORDERED that Citation No. 8525679 be VACATED.

36 FMSHRC Page 2731

It is ORDERED that Citation Nos. 8525669, 8525670, and 8525671 be MODIFIED to
reduce the negligence from “high” to “moderate.”
To the extent Respondent has not already done so, within 40 days of the date of this
decision, Respondent, Warrior Investments Company, Inc., is ORDERED TO PAY a total civil
penalty of $8,039, i.e., $3,143 for the litigated citation and $4,996 for the settled citations.2

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge

Distribution:
J.D. Terry, Attorney and Safety Director, Warrior Investment Co., Inc., 218 Highway 195,
Jasper, AL 35503
Thomas A. Grooms, U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite
230, Nashville, TN 37219

2

Payment should be sent to: Mine Safety & Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. This penalty reflects the
$3,143.00 penalty assessed in Docket SE 2013-0252 for Citation No. 8524528 and the settlement
agreement penalty of $4,896.00 for the Citations in Dockets SE 2013-0361 and SE 2014-0033.

36 FMSHRC Page 2732

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

October 17, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 2013-511
A.C. No. 44-07172-329197

v.
EXTRA ENERGY, INC.,
Respondent

Mine: Virginia Point No. 1 Surface Mine

DECISION AND ORDER
Appearances:

Anthony M. Berry, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Nashville, Tennessee for Petitioner
Nicholas Preservati, Esq. and Sarah Korwan, Esq., Preservati Law Offices,
PLLC, Charleston, West Virginia for Respondent

Before:

Judge McCarthy
I. Statement of the Case

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 Petitioner
charges Respondent, Extra Energy, Inc. (Extra Energy), with moderate negligence while
committing a significant and substantial (S&S) violation of 30 C.F.R. § 77.404(a), affecting one
miner.
The issues before me are whether Respondent violated the standard by failing to maintain
the steering linkage components on a large haul truck in safe operating condition, whether the
violation was significant and substantial because it was reasonably likely to result in a fatal
injury to one miner, whether Respondent’s negligence was moderate, and whether the proposed
penalty of $3,689 is appropriate.
Hearings were held on March 12 and April 18, 2014 in Bluefield, Virginia and Beckley,
West Virginia, respectively. During the hearings, the parties introduced testimony and
documentary evidence. Witnesses were sequestered.

36 FMSHRC Page 2733

For the reasons set forth below, I find that Citation No. 8203250 was properly issued, as
written, and I assess a civil penalty of $3689.
Based on a careful review of the entire record, including the parties’ post-hearing briefs
and my observation of the demeanor of the witnesses,1 I make the following:
II. Findings of Fact
A. Stipulations of Fact and Law
At hearing, the parties agreed to the following stipulations:
1. The Administrative Law Judge and the Federal Mine Safety and Health Review
Commission have jurisdiction to hear and decide these civil penalty proceedings pursuant
to Section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815.
2. Extra Energy, Inc., is the operator of Virginia Point No. 1 Surface Mine, Mine I.D. 44- 07172.
Operations of Extra Energy, Inc., are subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., as amended.
3. MSHA Citation No. 8203250 and all appropriate modification and continuation forms,
may be admitted into evidence for the purpose of establishing the accuracy of any
statements asserted therein.
4. Respondent produced 711,304 tons of coal in 2012 at the mine (Mine Identification
No. 44-07172).
5. Payment by Respondent of the proposed penalty of $3,689 will not affect the
Respondent’s ability to remain in business.
6. Inspector Mark Tuggle was an authorized representative of the Secretary. Tr. 12- 13.
Tr. 11-13.
B. Background Information
The cited standard provides that “[m]obile and stationary machinery and equipment shall
be maintained in safe operating condition and machinery or equipment in unsafe condition shall
be removed from service immediately.” 30 C.F.R § 77.404(a). The cited truck, a Caterpillar
777B model, is a large dump truck, often used for rock hauling in the pit mining process. The
1

In resolving conflicts in testimony, I have taken into consideration the demeanor of the
witnesses, their interests in this matter, the inherent probability of their testimony in light of
other events, corroboration or lack of corroboration for testimony given, experience and
credentials, and consistency, or lack thereof, within the testimony of witnesses and between the
testimony of witnesses.

36 FMSHRC Page 2734

truck measures 32 feet in length, 17 feet in width, and 16.1 feet in height. It is capable of hauling
a 320,000 pound load. Tr. 60, 66.
The steering system of the truck is controlled by a hydraulically-operated steering linkage
assembly, consisting of several rods and arms located on the underside of the truck. Tr. 75; Jt.
Ex. 2. The steering wheel controls steering cylinders on the left and right side of the steering
linkage located next to the front wheels. Tr. 75, 292. As the steering wheel is turned, a
proportioning valve sends hydraulic fluid into one cylinder, which forces that cylinder to push on
the linkage system and the opposing cylinder to pull, thereby supplying the force necessary to
turn the wheels of the truck. Tr. 78. If the steering wheel is turned in the opposite direction, the
fluid valve reverses direction and the hydraulic fluid flows accordingly. Tr. 76.
Two tie rods installed on each side of the bottom of the truck are an integral part of the
steering linkage assembly. Tr. 76; Jt. Ex. 2. The tie rods connect the left and right wheels so
that they turn simultaneously in alignment. Tr. 78. The tie rods have no hydraulic components
and do not push or pull the truck’s wheels. Tr. 76.
A pitman arm extends down from the steering box and connects to one end of each tie
rod. The opposite end of each tie rod is connected to either the left or right wheel via a steering
arm. Tr. 77. The tie rods are connected to the pitman and steering arms by ball joints. Tr. 8081; Jt. Ex. 2. Like a hip joint, a ball joint connects two ends, but allows a range of angular
motion. The ball joint connects the vertical components for the assembly with the horizontally
located tie rods. Tr. 79; Jt. Ex. 2.
The balls joints are comprised, in part, by a ball with a threaded rod at the bottom. The
ball rests within a socket connected to an arm. Tr. 79.2 The tie rod is connected to the steering
linkage assembly by a nut, which is tightened over the threaded rod at the bottom of the ball
joint. Tr. 79. According to Caterpillar’s 777B service manual, the nut must be torqued to 1,000
foot pounds. Jt. Ex. 2. After the nut is torqued, a cotter pin, or metal fastener with two prongs, is
inserted in a hole drilled horizontally through the threaded rod at the end of the ball joint, and
then through a notch on the castellated nut. Tr. 50-51.3 The cotter pin ensures that the nut
remains tightened according to specifications. Tr. 50,51.

2

Inside the socket there may be grease or rubber bushing to ensure that the ball can
move, as required, within the socket. Tr. 79. The parties’ testimony differs as to whether the
ball joints rest within a rubber bushing, or whether the socket is greased. Tr. 79, 302; Jt. Ex. 2.
Since that issue is not dispositive of whether the ball joint was working properly and the truck
was maintained in a safe operating condition, I need not resolve the conflict.
3

If the hole in the bolt and the notch on a nut do not allow a cotter pin to pass through,
the nut is furthered tightened until the hole and the notch line up. Once the cotter pin is inserted
through both the nut and bolt, the prongs are extended or flared backwards along the nut to
ensure that the nut does not loosen and the cotter pin does not slip out of the nut. Tr. 51, 140.

36 FMSHRC Page 2735

C. The Inspection at Issue
1. Background
On June 24, 2013, MSHA inspectors Mark Tuggle4 and Stephen Crouse5 arrived at the
Virginia Point No. 1 Mine site to conduct a ground plan inspection of an independent
contractor’s high wall mining operation. Tr. 33-34. Between noon and 12:30 p.m., while
sitting in his vehicle near the site, Tuggle noticed oil on the ground. Tr. 88. After observing a
Caterpillar 777B haulage truck make “several passes,” Tuggle identified the truck as the source
of the oil. Tr. 89.
Tuggle observed the truck from about 100 feet away and saw “differential wheel
movement” from the rear tires as the truck moved backward. Tr. 41, 88-89. Tuggle then
signaled for the driver, Franklin Hunt, to stop the vehicle. Tr. 90.6 Hunt pulled over to a nearby
berm and called maintenance foreman, Robbie Ray, via radio. Tr. 94, 248-49.7
2. Visual Inspection
After the truck was parked and the tires were chocked, Tuggle stooped down under the
vehicle to inspect the steering mechanism. Tr. 46. Tuggle instructed Hunt to turn the steering
wheel various ways so that Tuggle could observe the movement of the ball joints. Tr. 46-47.
During one turn, Tuggle measured an inch of vertical play between the ball and socket joint on
the left front side, using a standard-rule tape measure. Tr. 47. Tuggle’s contemporaneous notes
confirm this measurement. P. Ex. 2. Tuggle’s notes also confirm that “the nut is loose on the
4

Tuggle worked in mines intermittently between 1985 and 1990 and consistently
between 1991 and 2006. Tr. 30. Tuggle began work with MSHA in 2006. Tr. 30. Tuggle
received his Authorized Representative card in September 2007. Tr. 31. Tuggle also attended
the Mine Academy and earned a Bachelor’s Degree in Mining Engineering from Bluefield State
College. Tr. 31. Tuggle earned certifications in diesel mechanics and auto mechanics from
Southwest Virginia Community College. Id. Tuggle owned two trucking companies prior to the
inspection. Tr. 151. Tuggle routinely conducted inspections on trucks when he owned these
companies. Tr. 152.
5

Crouse is a surface coal mine safety and health inspector for MSHA. Tr. 161. Crouse
received his Authorized Representative card in January 2012 and attended the Mine Academy.
Tr. 161. Crouse has experience with heavy equipment and coal-truck maintenance. Tr. 161.
6

Hunt has occasionally driven the rock truck for Respondent during the past ten years.
Tr. 231-33. Hunt completed hazard training in connection with his truck operating duties. Tr.
232. Hunt testified that he can detect a loss of control from steering when it occurs. Tr. 233.
7

Ray is a certified mining foreman in Virginia and has been employed by Respondent
for five and one- half years as a maintenance foreman. Tr. 288. Ray routinely works on steering
systems on Caterpillar trucks. Tr. 290. Previously, Ray worked at Carter Machinery for seven
years as a field service technician. Tr. 288-89. While there, Ray maintained, inspected, repaired
and serviced hydraulic steering systems on Caterpillar 777 model trucks. See Tr. 287-89.
36 FMSHRC Page 2736

bottom of the ball joint and the nut has sheared the cotter pin keeper and allowed the nut to back
off.” Id.
Tuggle then called Crouse over to observe the ball joint movement. Tr. 48. Crouse went
under the truck, while Tuggle stood to the side and gave Hunt directions for turning the steering
wheel. Tr. 48. Crouse testified that he observed the nut on the ball and socket joint hanging
down about an inch, about to fall off, and in bad condition. Tr. 163, 171. Although Crouse did
not conduct a “full inspection” of the truck, Crouse testified that he would have issued a citation
for a section 77.404(a) violation because of the vertical movement in the ball joint and the loose
nut on the tie rod ball joint. Tr. 170-73. Crouse testified that the violative condition contributed
to the hazard of loss of control of the haul truck, particularly given the changing surface and
grade over which the truck was driven. Tr. 164-65, 168. Crouse testified that he would have
written the citation as highly likely, rather than reasonably likely, to result in a fatal injury. Tr.
166.
While waiting for maintenance foreman Ray to arrive, Crouse spoke with assistant
superintendent, Ritchie Bowman. Bowman told Crouse that Ray was coming with a dial
indicator to measure the play in the ball joint. Crouse told Bowman that a dial indicator was not
needed; it’s a no-brainer because the nut is about ready to fall off and the truck is not being kept
in safe operating condition. Tr. 173.
Ray arrived after Tuggle and Crouse examined the ball joint and steering assembly. Tr.
104-05. Ray brought a dial indicator to measure horizontal movement of the steering linkage.
Tr. 105-06. Crouse and Ray then went under the truck to check for play while Hunt turned the
steering wheel in various directions. Tr. 106. Tuggle credibly testified that while Ray was
making his own examination, Ray stated, “There’s no need to even measure this.” Tr. 105.
Crouse testified that Ray removed the nut with his hands after a couple turns. Tr. 173-74.
According to Tuggle, when Ray attempted to re-torque the nut onto the ball joint, he was unable
to do so because of excessive wear. Ray subsequently installed an entirely new joint assembly to
replace the old one. Tr. 149.
3. The Controverted Cotter Pin
Tuggle testified that the cotter pin on the ball joint at issue was sheared. Tuggle
testified that he was unable to see the ends of the cotter pin protruding from the joint assembly,
and the nut had slid down the threading on the rod at the end of the ball joint. Tr. 50. As noted,
the ends of a cotter pin should be frayed backward to prevent the cotter pin from falling out of
the nut and rod. Tr. 140. Based on his observations, Tuggle concluded that the ends were
sheared off and that the rest of the cotter pin remained within the hole that had been drilled into
the rod and the slot in the nut. Tr. 141. Tuggle testified that shearing can occur when the nut is
subject to excessive torque or downward force. Tr. 109.
Tuggle further testified that when Ray came to investigate the problem, Ray removed the
nut with his bare fingers, at which time Tuggle was able to see the sheared cotter pin. Tr. 100.

36 FMSHRC Page 2737

Tuggle testified that Ray then pulled the remaining pieces of the cotter pin out with needle-nosed
pliers, and threw the remnants on the ground. Tr. 100, 109, 120.
Crouse corroborated Tuggle. Crouse testified that when he investigated the tie rod and
ball joint, the cotter pin appeared to have been sheared. Tr. 163.
Ray testified that he could take and rock the nut back and forth and it was covered in oil
or grease and mud. He testified that the top of the nut was flush with the bottom of the steering
link. Tr. 334. Ray further testified that there could be no vertical movement on the ball stud
because the nut prevents it from coming up out of the center link. Tr. 334-35. Ray testified that
he and Respondent’s mechanic, Arvil Phipps, cleaned the grease and mud off the nut with rags,
and the cotter pin was still in the stud. Ray testified that he could see the round head of the cotter
pin sticking out between the cutouts of the nut where it was driven back in the groove. Tr. 33536. The following leading exchange then occurred on direct examination of Ray.
Q.

So the end was not sheared off?

A.

No.

Q.

And it was sticking out from the ball stud itself under the nut?

A.

It was recessed in the nut. That’s -- we drive it in and bend the opposite sides of
it down.

Q.

But it wasn’t completely in the ball stud?

A.

No. No. It was sticking out.

Q.

All right. And the other – what was the other -- the condition of the other end of
the cotter pin?

A.

It was bent down the backside of the ball stud.
....

Q.

So there is two legs on the end of this pin?

A.

It’s a split pin.

Q.

One was bent up and one was bent down?

A.

Yes.

Tr. 336.

36 FMSHRC Page 2738

Respondent’s mechanic Phipps, who had been in Respondent’s employ for one and onehalf years, testified that when he arrived to fix the ball joint, he removed the cotter pin with a
pliers and a hammer. Tr. 269. Phipps testified that the cotter pin was not sheared and was in one
piece. Tr. 269-70. Phipps further testified that after he removed the cotter pin, he tightened up
the nut, but inspector Tuggle was still not satisfied, so a whole new assembly was installed. Tr.
269-70.
4. Issuance of Citation No. 8203250
At 3:36 p.m., Tuggle issued Citation No. 8203250 for a § 74.404(a) violation. Tr. 35.
The violation was designated S&S because the gravity was reasonably likely to result in a fatal
injury affecting one miner. Negligence was designated as moderate. P. Ex. 1. Tuggle testified
that Respondent should have been aware of the hazardous condition of the ball joint during the
pre-operational inspection of the truck, and that there were no mitigating circumstances. Tr. 64,
Tr. 67-68. The proposed penalty is $3,689.
D. Conflicting Testimony about the Potential Effect of a Loose Nut on a Ball Joint with
an Inch of Vertical Play
1. Petitioner’s Testimony
Tuggle testified that the potential hazard resulting from a loose nut and inch of vertical
play in the ball joint was comprised steering and loss of control of the truck should the ball joint
slip. Tr. 53,59. Specifically Tuggle testified as follows:
Q.

Okay. Now, as for the reasonable likely – reasonable likelihood, what was the
hazard that you contemplated?

A.

That the truck would actually lose the tie rod, the ball joint would actually come
apart, the wheel stability would be lost. There would still be partial steering due
to the hydraulic jacks, but the steering itself would be compromised. And the
roads, even though they were wide in certain areas, they were passing cars, -- or
not cars, pickup trucks and service trucks, water trucks. They were actually
passing where the miners were on foot walking back and forth from the highwall
miner to the Porta John, their cars and the bus. And if they lost any control in it,
then there is a chance that it would run over or kill somebody, because one of
these trucks -- there is multiple videos you can go on msha.gov, and you can
actually look up on Google, where these trucks have run over similar pickup
trucks, and they’re flat as a pancake.

Q.

And what do you believe made that reasonably likely?

A.

Is because the nut was ready to fall off, and this truck was loaded coming down
steeper grades. Fully loaded, and, you know, with a – it’s three – excuse me, it’s
close to 324,000 pounds loaded.

36 FMSHRC Page 2739

Q.

Okay.

A.

So coming down the steep grade, if you lost it down a steep grade fully loaded,
and you’re trying to rely on just a single jack to steer your wheels, the chance is
that that -- you’re not going to be able to steer it.

Q.

Now, did you witness this vehicle operating loaded?

A.

Yes, I did.

The Court:

Did you measure the grade?

The Witness: No, I did not measure the grade. It was steep on the right side as it come
into the pit, but as an engineer, I would guess it between ten and twelve
degrees.
Tr. 59-60. On rebuttal, Tuggle further testified that the haul truck was driven at speeds between
12 and 15 miles per hour (mph) while loaded, and greater than 20 mph when unloaded. Tr. 40001.
Crouse’s testimony about the hazard of losing control of the vehicle under continued
normal mining conditions corroborated Tuggle’s testimony that such a loss of control would
result in injury or fatality to the driver or to other miners in the vicinity. Tr. 164-67.
Tuggle further testified that during training at the Mine Academy, MSHA instructs
inspectors to consult a manual, which Tuggle referred to as the “Fleet Commercial” or the
“Commercial Vehicle Program Manual,” to aid in determining when a vehicle is in safe
operating condition. Tr. 57-58, 84-85.8 According to Tuggle, the manual provides that a vehicle
with any vertical play in a ball joint is to be removed from service. Tr. 84. Based on his
experience in the trucking industry prior to working for MSHA and his training at the Mine
Academy, Tuggle credibly testified that vertical play in a ball joint constitutes an unsafe
operating condition requiring that the truck immediately be placed out of service. Tr. 154-55.
With regard to his negligence designation, Tuggle testified that an inadequate preoperational inspection had been performed on the haul truck. Tuggle observed other vehicle
8

The manual was not submitted into evidence. Tr. 85. I take administrative notice of the
North American Standard Out-of-Service Criteria, issued by the Commercial Vehicle Safety
Alliance. The manual provides that a vehicle is to be taken out of service if any of its ball and
socket joints exhibit “any motion, other than rotational, between any linkage member and its
attachment point of more than 1/8 inch (3.2mm) measured with hand pressure only” or if any tie
rod exhibits “any looseness in any threaded joint.” Commercial Vehicle Safety Alliance, North
American Standard Out-of-Service Criteria, at 44 (revised April 1, 2010). This manual is relied
on and cited by the United States Department of Transportation. 49 C.F.R. Pt.
385.4(b)(1)(2013); 79 F.R. 27766, May 15, 2014).

36 FMSHRC Page 2740

inspections earlier that day that were conducted with poor lighting and there was only one person
present to inspect the steering system. Tr. 64. Tuggle testified that a proper inspection of the
steering system requires two persons, one to observe the ball joints for play, and another to turn
the steering wheel from side to side to reveal any play. Tr. 129.
2. Respondent’s Testimony
Ray testified that a ball stud could not be removed, even if the nut on the bushing was
missing. Tr. 307. Rather, in order to remove the tie rod ball joint from its socket, the cotter pin
must first be removed. Tr. 304. According to Ray, an impact wrench is required to remove the
nut from the ball stud. He testified that manual removal is impossible. Tr. 301, 305. Ray also
testified that a properly installed ball stud cannot be dislodged without the application of
considerable force. Tr. 304. Ray testified that removing the ball stud from the socket in the
wishbone assembly generally requires the use of a 20-ton hydraulic jack. Id. After such jack is
applied to the joint, the ball is raised from the assembly and hit with a hammer to remove the ball
joint from the socket. Tr. 304, 307.
Respondent’s safety and compliance director, Philip Hale, referred to the Caterpillar
777B's steering jacks as a “failsafe system.” Tr. 199.9 In Hale’s view, the steering jacks are
responsible for moving the tires as the truck turns, and the loss of a tie rod would not result in a
hazard since the tie rod only ensures that the wheels turn uniformly, not that they turn at all. Tr.
199.
Respondent’s truck operator, Gregory Cole, testified that he alone performed a preoperational check on the cited truck at 6:00 a.m. on the day of Tuggle’s inspection. Tr. 206, 222223.10 The pre-operational checklist in evidence does not mention any safety concerns. R. Ex.
1. Cole drove the truck from about 6:00 a.m. until 1:30 p.m. that day, and he did not notice any
steering difficulties. Tr. 214, 225. Cole testified that if any steering difficulty had occurred, he
would have pulled the truck over immediately and examined it, per company policy. Tr. 214.
Cole testified that at the time of the inspection, the mine roads over which the truck was driven
did not contain sharp turns or steep grades. Tr. 213-4.11
9

Since 2010, Hale has been a safety and compliance office for ArcelorMittal Mines, the
owner of the property where Respondent operates. Prior to holding this position, Hale was an
inspector for MSHA for five years. Tr. 191.
10

Cole had been employed by Respondent for about five years as a heavy equipment
operator and received annual safety training refresher courses. Id. Cole was responsible for
daily pre-operational examinations of the vehicles and machinery that he operated. Id. Cole also
had been a truck driver for ten years prior to employment with Respondent. Id. Cole holds a
commercial driver’s license and has several years of experience operating the model truck at
issue. Tr. 204-06.
11

Hale testified that the average grade at the mine site was between seven and eight
percent. Tr. 196. Hale also testified that a flyover photo of the mine site showed the steepest
(continued…)

36 FMSHRC Page 2741

Driver Hunt testified that there was a five to six percent grade along the route driven on
June 24, 2013. Tr. 236. Hunt further testified that the turns of the steering wheel that Tuggle
asked him to perform during the inspection were sharper than the turns usually encountered at
the mine site. Tr. 245.
E. Respondent’s Post-Inspection Video Evidence
Respondent introduced a flash drive containing two videos of the cited Caterpillar 777B
haul truck, which was identified by the serial number 1747 on the outside of the driver’s cab
window. Tr. 360.
The first video is two minutes and thirty-six seconds long. It is identified on the flash
drive as “195” and it was received in evidence as R. Ex. 2. This video shows the truck being
driven off site, on flat terrain, with the right side tie rod disconnected. Tr. 360; R. Ex. 2. Ray
estimated that the truck in the video was driven at about five to ten mph over terrain with rocks,
similar to that at the mine site. Tr. 364, 369. Tuggle testified, on rebuttal, that the terrain in the
video was less steep than the terrain present at the mine site. Tr. 400.
I find the video to be of little probative value to Respondent’s defense. The video was
taken off site. The truck in the video is not loaded. Mine roads and curves are not being
navigated in the video. Moreover, the operator is aware of the filming and could compensate for
a detached tie rod.
Throughout the video, the camera pans away as the haul truck makes a turn, or the turn
is executed behind another large vehicle. During the truck’s initial turn in the video, the front
left tire starts to turn before the right front tire. Thereafter, the right front tire appears to turn
more quickly to “catch up.” Tr. 397; R. Ex. 2 at 00:55-00:58. For much of the video, one is
unable to see the front tires of the truck. R. Ex. 2 at 01:05-01:24.
At one point in the video, the massive truck is driven behind a bus and another vehicle,
and the front tires are not visible as the truck backs up to make a turn. R. Ex. 2 at 01:24-01:41.
The camera pans away completely at one point while the truck is making this maneuver. R. Ex.
2 at 01:43. Thereafter, when the truck is straightened out, the left side is driven over wooden
cribbing on the ground. R. Ex. 2 at 01:53-01:56. At this point, the video pans away and zooms
in and out. R. Ex. 2 at 01:55.
Later in the video, the right front tire is driven over wooden cribbing and that tire
distinctly wobbles. R. Ex. 2 at 02:11-02:16. Tuggle testified that this wobbling resulted from
the detached tie rod on the right front tire. Tr. 399-400. Thereafter, the camera pans away and
one is only able to see the back of the truck before the video camera is turned off. R. Ex. 2 at
02:30, 02:36.
11

(…continued)
grade between seven and eight percent and the modal grade at about four percent. Tr. 197. Cole
testified that although the mine has “some steep grades,” they were not present when the citation
was issued. Tr. 213-14.

36 FMSHRC Page 2742

The second video is labelled “1644.” This video is three minutes and 55 seconds long.
R. Ex. 3. This video shows the process of ball stud removal. Tr. 309; R. Ex. 3. A 20-ton Air
Over hydraulic jack is placed on wooden cribs and lined up with the ball joint stud. Tr. 311; R.
Ex. 3 at 00:01-01:38. The jack applies force against the ball stud and causes it to pop loose from
the assembly. Tr. 311; R. Ex. 3 at 01:10-01:26.
A driver then gets into the cab and maneuvers the truck around a relatively flat area. R.
Ex. 3, 02:25-03:23. The viewer only sees the right side, or driver’s side of the truck for a
significant segment towards the end of the video. R. Ex. 3, 03:20-03:50. As the truck reverses
and turns, the left front tire is somewhat out of alignment and the video stops. R. Ex. 3 at 03:4803:52.
III. Analysis and Disposition
A. The Violation of Section 77.404(a)
Section 77.404(a) imposes two duties upon an operator: (1) to maintain machinery and
equipment in safe operating condition, and (2) to remove unsafe equipment from service.
Derogation from either duty violates the standard. Peabody Coal Co., 1 FMSHRC 1494, 1495
(Oct. 1979).
The large haul truck cited by inspector Tuggle was mobile equipment. It is undisputed
that such mobile equipment was in service when cited. The dispute is whether the truck was
maintained in safe operating condition. I find that the truck was not maintained in safe
operating condition and was not removed from service. Accordingly, Respondent derogated
both duties. I find the violation.
Equipment is in unsafe operating condition under section 77.404(a) when a reasonably
prudent person familiar with the factual circumstances surrounding the alleged hazardous
condition, including any facts peculiar to the mining industry, would recognize a hazard
warranting corrective action within the purview of the applicable regulation. Ambrosia Coal &
Construction Company, 18 FMSHRC 1552, 1557 (Sept. 1996) (citing Alabama By-Products
Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (applying identical standard in underground coal
mines). Applying this test, I find that a reasonably prudent person familiar with driving a large
and often-loaded haul truck over uneven, curved and graded mine roads, would recognize that an
inch of vertical play in a ball joint and a loose nut on the ball joint constitutes failure to maintain
the truck in safe operating condition, free from hazards that require corrective action. Had a
pre-operational inspection been completed, with one person monitoring the steering linkage and
another moving the steering wheel, the defects would have been noticed by a reasonably prudent
person.
I credit Tuggle’s testimony that there was an inch of vertical play between the ball and
socket joint on the left front side when Hunt turned the wheel. Tuggle used a standard-rule tape
measure. Tr. 47. Tuggle’s contemporaneous notes confirm this measurement and confirm that
the nut was loose on the bottom of the ball joint and had sheared the cotter pin keeper, allowing

36 FMSHRC Page 2743

the nut to back off. P. Ex. 2. Crouse essentially corroborated Tuggle’s testimony.
Specifically, Crouse testified that he observed the nut on the ball and socket joint hanging down
about an inch, about ready to fall off, and in bad condition. Tr. 163, 171. I credit Crouse’s
testimony that while waiting for maintenance foreman Ray to arrive, Crouse told assistant
superintendent Bowman that a dial indicator was not needed; it’s a no-brainer because the nut is
about ready to fall off and the truck is not being kept in safe operating condition. Tr. 173. I
further credit Tuggle that when Ray arrived with the requisite tools to measure the play and make
his own examination, Ray chose not to and admitted, consistent with Crouse’s no-brainer
opinion, that “[t]here’s no need to even measure this.” Tr. 105. Ray did not deny this. Further,
Crouse credibly testified that Ray removed the nut with his hands after a couple turns. Tr. 17374. Accordingly, I find an inch of vertical play in the ball joint and a loose nut on the ball joint.
The Commission has recognized that movement in steering linkage ball joints alone can
rise to the level of a hazardous defect. See LaFarge North America, 35 FMSHRC 3497, 3500
(applying section 56.14100(c), which concerns defects that make continued operation hazardous,
and remanding to determine amount of movement in ball joints and whether such amount
constitutes a hazardous defect). I find that an inch of vertical play in the ball joint is sufficient
to constitute a hazardous defect. Tuggle convincingly testified that he was trained at the Mine
Academy to use the “Commercial Vehicle Program” as source criteria for vertical play in the ball
joint and that any vertical movement requires that the vehicle immediately be removed from
service. Tr. 57. The North American Standard Out-of-Service Criteria manual, issued by the
Commercial Vehicle Safety Alliance, provides that a vehicle is to be taken out of service if any
of its ball and socket joints exhibit “any motion, other than rotational, between any linkage
member and its attachment point of more than 1/8 inch (3.2mm) measured with hand pressure
only” or if any tie rod exhibits “any looseness in any threaded joint.” Commercial Vehicle Safety
Alliance, North American Standard Out-of-Service Criteria, at 44 (revised April 1, 2010). Since
this manual was relied on by Tuggle pursuant to his training at the mine Academy, I find it
provides useful guidance for whether the inch of vertical play in the ball joint constituted a
hazardous defect making continued operation of the haul truck unsafe. Further, I emphasize that
Tuggle was an experienced MSHA inspector, with specific skill and training in the trucking
industry, and therefore his opinion, based on his training, that an inch of vertical play in the ball
joint was sufficient to constitute a hazardous defect requiring the haul truck’s removal from
service, is entitled to substantial weight. Cf., Harlan Cumberland Coal Co., 20 FMSHRC 1275,
1278-79 (Dec. 1998); Buck Creek Coal Co. v. FMSHRC, 52 F.3d 133,135 (7th Cir. 1995).
Accordingly, I conclude that the inch of vertical play in the ball joint constitutes a hazard making
continued operation of the haul truck unsafe and requiring its removal from service.
I further credit Tuggle’s testimony that the nut at the bottom of the ball joint was loose
and ready to fall off, had sheared the cotter pin keeper, and was removed by Ray with his bare
hands. Tr. 50. Tuggle’s contemporaneous notes confirm his testimony to this effect. P. Ex. 2.
Crouse corroborated Tuggle. Tr. 163, 171, 173-74. Although Ray and Hale testified that a
loose nut on the ball joint did not constitute an unsafe operating condition, they never addressed
whether play in the ball joint constituted such a condition. Tr. 199, 295. Moreover, I discount
their testimony and find Tuggle’s testimony more persuasive. In describing the hazard, Tuggle
testified “[t]hat the truck would actually lose the tie rod, the ball joint would actually come apart,

36 FMSHRC Page 2744

the wheel stability would be lost. There would still be partial steering due to the hydraulic jacks,
but the steering itself would be compromised . . . .” Tr. 59. Tuggle's testimony that he
observed the haul truck’s tires out of alignment before he issued the citation supports the
inference that a loose ball joint can compromise steering. Tr. 88-89. The video evidence offered
by Respondent further bolsters rather than refutes the contention that a loose or disconnected ball
joint in a tie rod compromises steering control, which can be hazardous. Tr. 397; R. Ex. 2 at
00:55-00:58; see also R. Ex. 2 at 02:11-02:16 (right front tire is driven over wooden cribbing and
tire distinctly wobbles). Tuggle credibly testified that the wobbling of the front right wheel in
the video as the truck rode over the wooden crib resulted from the detached tie rod on the right
front tire. Tr. 399-400.
In sum, based on my review of the entire record, I find that the Secretary has proven by a
preponderance of the evidence that Respondent violated Section 77.404(a) by failing to maintain
the haul truck in safe operating condition, and by failing to remove it from service.
B. The Violation of Section 77.404(a) was Significant and Substantial
The Mine Act describes an S&S violation as one “of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other mine safety or health
hazard.” 30 U.S.C. § 814(d)(1). The Commission has held that a violation is S&S “if, based on
the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
To establish an S&S violation under National Gypsum, the Secretary must prove the four
elements of the Commission’s subsequent Mathies test: (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. See Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote
omitted); accord Buck Creek Coal, supra, 52 F.3d at 135 (7th Cir. 1995) (recognizing wide
acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir.
1988) (approving use of Mathies criteria). An evaluation of the reasonable likelihood of injury is
made assuming continued normal mining operations. U.S. Steel Mining Co. (U.S. Steel III), 7
FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC
1573, 1574 (July 1984).
For the reasons explained above, I have found the underlying violation of mandatory
safety standard 77.404(a).
With regard to the second Mathies factor, the violation created a discrete safety hazard or
measure of danger to safety. My finding of a violation a fortiori requires a finding of a discrete
measure of danger to safety as the standard violated requires a failure to maintain mobile
equipment (the haul truck) in safe operating condition. Ergo, if the truck is not maintained in
safe operating condition there is necessarily a discrete measure of danger to safety.

36 FMSHRC Page 2745

Furthermore, the Secretary need only identify a safety hazard associated with the putative
S&S violation. Highland Mining Co., 34 FMSHRC 3434, n. 5 (Dec. 2012). Although the
parties focused much attention on the discrete hazard of loss of control caused by a detached tie
rod, the record evidence establishes that one inch of vertical play in the ball joint and the loose
nut at the bottom of the ball joint contributed to the discrete hazard of compromised steering and
loss of control of the haul truck. Tr. 59; Tr. 85. As noted, I have found that there was one inch
of vertical play in the ball joint, which required the truck’s removal from service according to
MSHA’s experienced inspectors, MSHA Academy training, and guidance from the Commercial
Vehicle Safety Alliance, North American Standard Out-of-Service Criteria. In addition, I have
found that the nut at the bottom of the ball joint was loose, ready to fall off, and had sheared the
cotter pin keeper. Further, I have credited Tuggle’s testimony over testimony from
Respondent’s witnesses that these hazards would compromise wheel stability and steering.
Tuggle's pre-citation observation that the tires were out of alignment bolsters my findings that
the loose ball joint compromised wheel stability and steering. The video evidence offered by
Respondent does more to bolster than refute my finding of the danger of a loose or disconnected
ball joint that could result in a detached tie rod and compromise wheel stability, alignment and
steering control. Tr. 397, 399-400; R. Ex. 2 at 00:55-00:58; see also R. Ex. 2 at 02:11-02:16.
There is clearly different and unaligned wheel movement in the video, and the tire with the
detached tie rod exhibits wobbly motion. Tr. 397, R. Ex. 3; 0:55-:58, 1:53-1:56; Tr. 399-400.
Accordingly, I find that the second Mathies factor is satisfied.
Regarding the third Mathies factor, the Secretary demonstrated a reasonable likelihood
that the hazard contributed to by the violation, i.e., loss of control of the large haul truck on the
mine roads, was reasonably likely to result in an injury during continued mining operations.
During continued mining operations, a large haul truck driven at speeds between 12-15 mph over
uneven, curved and graded mine roads, with an inch of vertical play in a ball joint and a loose
nut on the ball joint was reasonably likely to result in loss of control of the truck and injury to the
driver, injury to another driver during collision with another vehicle, or injury
to another miner travelling on foot in the vicinity of haul truck operations. The driver of the
truck or a passing vehicle was clearly exposed to injury from collision or loss of control of the
truck due to failure to maintain the truck in safe operating condition. Further, the credited
testimony from inspectors Tuggle and Crouse establishes that other miners travelling in passing
vehicles or on foot were exposed to post-collision injury from loss of control of the truck. Tr.
59, 62-63, 164, 167. In these circumstances, an injury was reasonably likely to occur during
continued operation of the large haul truck over mine property with defective components on the
steering linkage assembly.
Concerning the fourth Mathies factor, I find a reasonable likelihood that any such injury
would be of a reasonably serious nature. The loss of control hazard contributed to by the failure
to maintain the large haul truck in safe operating condition was reasonably likely to result in a
collision and concomitant serious or fatal injury to the truck driver, miners in a colliding vehicle,
or miners struck on foot. The Caterpillar 777B is a very large rock haul truck, measuring over
16 feet high and capable of carrying a load of over 320,000 pounds. A collision with another
vehicle or miner likely would be serious or fatal. Accordingly, the Secretary has shown a

36 FMSHRC Page 2746

reasonable likelihood that an injury resulting from the hazard contributed to by the violation was
reasonably likely to be serious or fatal.
C. Respondent’s Negligence was Appropriately Designated as Moderate
The Respondent challenges Tuggle’s moderate negligence designation. The level of
negligence is properly designated as moderate 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,
Table X. The level of negligence is properly designated as low when there are considerable
mitigating circumstances surrounding the violation. 30 C.F.R. § 100.3, Table X (emphasis
added).
Based on the testimony and briefs, I do not find considerable mitigating circumstances
that would justify reducing the negligence designation from moderate to low. Respondent
highlights none. Further, the lack of adequate procedures for investigating defects in steering
linkage assembly components during Respondent’s pre-operational inspection supports a
moderate negligence designation. In this regard, the pre-operational inspection should have
included two individuals. The record establishes that that there is no way to measure or observe
play in the ball joint without one miner manipulating the steering wheel and another checking the
tie rod and ball joints for movement and play. In these circumstances, I find that the Secretary
properly designated the level of negligence as moderate.
D. Civil Penalty
I have evaluated the Secretary's proposed penalty in light of the principles announced in
my recent Big Ridge decision. Big Ridge Inc., 36 FMSHRC slip op. at 4-6 (July 19, 2014)
(ALJ). I find that the penalty proposed by the Secretary is consistent with the statutory criteria in
section 110(i) of the Mine Act. 30 U.S.C. 820(i). Accordingly, I assess a $3,689 civil penalty
against Respondent.
IV.

ORDER

For the reasons set forth above, I AFFIRM Citation No. 8203250, as written. It is
ORDERED that the operator pay a civil penalty of $3,689 within 30 days of this decision.12

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge

12

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

36 FMSHRC Page 2747

Distribution:
Nicholas Preservati, Esq. and Sarah Korwan, Esq., Preservati Law Offices, PLLC, P.O. Box
1431, Charleston, West Virginia 25325
Anthony Berry, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North,
Suite 420, Nashville, Tennessee 37219

36 FMSHRC Page 2748

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
TH
721 19 STREET, SUITE 443
DENVER, CO 80202-2536
TELEPHONE: 303-844-3577 / FAX: 303-844-5267

October 29, 2014
CONTEST PROCEEDINGS

HECLA LIMITED,
Contestant

Docket No. WEST 2012-353-RM
Order No. 8605614; 11/16/2011

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

Docket No. WEST 2012-354-RM
Order No. 8605622; 12/14/2011
Lucky Friday Mine
DECISION AND ORDER

Appearances:

Laura E. Beverage, Esq., Karen L. Johnston, Esq., Jackson Kelly PLLC,
Denver, Colorado for Contestant.
Matthew L. Vadnal, Esq., Katherine M. Kasameyer, Esq., Office of the
Solicitor, U.S. Department of Labor, Seattle, Washington and San
Francisco, California for Respondent.
Susan J. Eckert, Esq., Santarella & Eckert, LLC, Littleton, Colorado for
Intervenor United Steelworks Local No. 5114.

Before:

Judge Manning

This case is before me upon notices of contest by Hecla Limited of two orders of
withdrawal issued under section 103(k) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 813(k). Hecla operates the Lucky Friday Mine, an underground silver, zinc, and lead
mine near Mullan, Idaho. An MSHA inspector issued Order No. 8605614 following a fall of
ground that occurred on November 16, 2011 and Order No. 8605622 after a fall of ground that
occurred on December 14, 2011. MSHA terminated both orders on June 12, 2013. The issue in
these cases is whether the Secretary abused his discretion when he maintained Order No.
8605614 after he issued Order No. 8605622 even though the second order closed the entire mine.
The United Steelworkers Local 5114, through counsel, intervened in these cases. The
Steelworkers also filed a compensation case seeking compensation under the fourth sentence of
section 111 of the Mine Act, Docket No. WEST 2012-466-CM. Although my resolution of the
issues before me in the present contest cases will also affect the compensation case before me,1

1

Upon agreement of the parties, the record developed in these contest cases will be
incorporated by reference into the record for the compensation case.

36 FMSHRC Page 2749

this decision does not resolve all issues in the compensation case, which is set for hearing in
January 2015.2
The parties introduced testimony at a hearing held in Coeur d’Alene, Idaho. Hecla and
the Steelworkers filed principal post hearing briefs. At hearing, the Secretary did not take a
position concerning the termination of Order No. 8605614, but reserved the right to file a reply
brief if Hecla contested the validity of either Order No. 8605614 or Order No. 8605622. Instead,
the Secretary opted to file a full post hearing brief titled as a reply brief. I accepted the
Secretary’s submission as a late brief in chief.
For the reasons set forth below, I find that the appropriate standard of review is whether
the Secretary’s actions were arbitrary and capricious and I find that, under the facts presented,
the Secretary did not violate that standard by maintaining Order No. 8605614 after he issued
Order No. 8605622.
I. SUMMARY OF EVIDENCE3
On November 16, 2011, a fall of ground occurred in the Lucky Friday Mine. At 2:25 a.m.
that same day, Ron Jacobsen, Field Office Supervisor of the Boise, ID Field Office, verbally
issued Order No. 8605614 pursuant to section 103(j) of the Mine Act. The order identified the
affected area as the “54 Ramp from the 5700 intersection from the spray chamber cut out to the
down ramp of the old day box cut out and the 5900 main haulage from 100 feet from the
intersection of the lateral on the 5900 level to 30 feet before the chevron.” Ex. G-1 at 1-2. At
1:05 p.m., Inspector Scott Amos issued modification No. 8605614-01, modifying Order No.

2

The fourth section of section 111 states:

Whenever an operator violates or fails or refuses to comply with any order issued
under section 103, section 104, or section 107 of this Act, all miners employed at
the affected mine who would have been withdrawn from, or prevented from
entering, such mine or area thereof as a result of such order shall be entitled to full
compensation by the operator at their regular rates of pay, in addition to pay
received for work performed after such order was issued, for the period beginning
when such order was issued and ending when such order is complied with,
vacated, or terminated.
30 U.S.C. § 821(emphasis added). It appears that this sentence of section 111 has never been the
subject of any litigation before the Commission.
3

I accept, rely upon, and incorporate by reference the 65 factual stipulations agreed upon
and submitted on July 29, 2014, as Proposed Factual Stipulations by the parties and the
intervenor.

36 FMSHRC Page 2750

8605614 to a section 103(k) order that allowed miners to begin repairs of the affected area,
excluding the 54 ramp area.4
On November 20, 2011, Inspector Rod Gust issued modification No. 8605614-03 to
permit the installation of three stress gauges in the 5900 main haulage drift. The 5900 haulage
drift was the primary access to the active mining area of the mine at this time. The Lucky Friday
Mine is a deep mine; the 5900 level is 5900 feet below the surface. The stress gauges were
intended to monitor changes in pressure that may lead to a fall of ground. On December 2, 2011,
Gust issued modification No. 8605614-04 to allow the mine to restore utilities through the 5900
drift where the fall occurred. Mine management had to monitor the three installed stress gauges
on a shift to shift basis.
MSHA approved Hecla’s proposal to install a steel liner through the affected area of the
5900 haulage drift. The steel liner was intended to protect miners in that area from any falls of
ground. On December 14, 2011, at approximately 7:40 p.m., a rockburst occurred in the 5900
pillar, injuring seven miners who were installing the steel liner. MSHA issued Order No.
8605622, a section 103(j) order that removed all miners working in the 5900 main haulage.
Order No. 8605622 encompassed all underground areas of the mine including the area affected
by Order No. 8065614. On December 15, 2011, Amos issued modification No. 8605622-01,
modifying Order No. 8605622 to a section 103(k) order that required the operator to obtain prior
approval for all actions taken to recover and restore operations anywhere in the Mine.5
On December 21, 2011, Inspector Ronald Eastwood issued Citation No. 8565565
alleging that the mine operator worked in the face of Order No. 8605614 by failing to perform
the required stress gauge reading directly before the rockburst. Hecla contested this citation,
4

On November 17, 2011, MSHA also issued modification No. 8605614-02 to allow
Hecla to scale, bolt, and repair through the fall at the 5900 haulage way and the 5700 sublevel of
the 54 ramp.
5

On December 16, 2011, Inspector Scott Amos issued modification No. 8605622-02 to
allow essential repair work in the #2 shaft and Inspector Rodric B. Breland issued modification
No. 8605622-03 to allow service work on the pumps at the 2800 and 5300 level pump stations.
On December 20, 2011, Inspector Ronald Eastwood issued modification No. 8605622-04,
requiring the mine to write and submit an abatement plan for each violation. On February 14,
2012, Breland issued modification No. 8605622-06 to prohibit all access to the 54 ramp between
levels 5500 and 5900. On February 17, 2012, Breland issued modification No. 8605622-07,
which allowed Hecla to commence the Silver Shaft “Clean Down Procedure.” On February 22,
2012, Breland issued modification No. 8605622-08 to allow the removal of mobile equipment
out of areas that may flood. On July 30, 2012, Breland issued modification No. 8605622-09 so
the operator could inspect the 54 ramp between the 5500 and 5900 levels. On August 9, 2012,
Breland issued modification No. 8605622-10 to allow the operator to drive a bypass around the
5900 main haulage drift. On January 4, 2013, Inspector Keith Palmer issued modification No.
8605622-11, allowing the operator to access the 54 Ramp to perform ground support
maintenance from the 5500 Sublevel to the 5900 level. On February 7, 2013, Breland issued
modification No. 8605622-12 and modified the affected area for the order to the 5900 level Idrift pillar and the haul road leading North and South from the pillar to the chain link barricades.

36 FMSHRC Page 2751

which was originally set to be adjudicated at the instant hearing, but the parties reached a
settlement of Citation No. 8565565 a few days before the hearing.6 The citation was not vacated
and I approved the settlement.
On December 20, 2011, Inspector Ron Jacobsen issued Citation No. 8690610 under
section 104(a), requiring that Hecla remove concrete debris from the shaft sets in the Silver
Shaft. The stated termination deadline was 1:00 p.m. on December 20, 2011, but Citation No.
8690610 was later modified to extend the termination deadline to 12:00 p.m. on December 30,
2011. On January 5, 2012, Inspector Steven Kidwell issued Order No. 8599596, taking the entire
Silver Shaft out of service. Active repairs of the Silver Shaft require all utilities to be shut off,
leaving the entire mine with no power, no water, and no compressed air. The Silver Shaft was
also the Mine’s primary escapeway. As a result, no mining or repair work was possible
underground until the shaft was cleaned and inspected to the 5900 level. Hecla had to install a
Galloway7 in the shaft to clean cementatious material from the walls of the entire shaft. MSHA
did not allow the Silver Shaft to be returned to service until all work was completed. The shaft
was not reactivated until MSHA issued modification No. 8599596-10 on February 26, 2013.
In addition to Citation No. 8690610, an impact inspection as well as a regular inspection
resulted in MSHA issuing numerous citations and orders at the Mine. Hecla had to abate these
violations before the 103(k) orders could be terminated. The lengthy abatement process required
to address the numerous conditions cited by MSHA contributed to Order Nos. 8065614 and
8065622 existing for an uncommonly long period of time for section 103(k) orders.
Hecla determined that repairing the 5900 haulage drift was not feasible and MSHA
approved its plan to build a new drift in an adjacent area to bypass the old drift. Modification No.
8605622-10. On April 2, 2013, Inspector Keith Palmer issued modification No. 8605622-13 to
allow the operator to construct sand walls on the North and South sides of the rockburst area in
the 5900 haulage drift and subsequently backfill the area. On June 12, 2013, Stembridge issued
modification Nos. 8605614-07 and 8605622-14, terminating Order Nos. 8605614 and 8605622.
II. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
The only issue before me in this hearing is whether MSHA acted in an arbitrary or
capricious manner when it maintained Order No. 8605614 upon issuing Order No. 8605622.
Although Hecla advances several arguments concerning the relationship between Order No.
8605614 and Order No. 8605622, my review in this contest proceeding is limited to ascertaining
6

The Steelworkers rely upon this citation and the fact that MSHA terminated Order No.
8605614 on June 12, 2013, as the basis for its claim that miners are due compensation until that
date under the fourth sentence of Section 111 of the Mine Act. The Steelworkers maintain that
by permitting miners to work in the 5900 drift without taking a required reading of the stress
gauges, Hecla violated or failed to comply with the terms of Order No. 8605614.
7

A Galloway is a multidecked work platform that is suspended in a mine shaft.

36 FMSHRC Page 2752

if MSHA’s action was arbitrary or capricious.8 The matter before me is Hecla’s contest of Order
Nos. 8605614 and 8605622, both of which are 103(k)9 orders. The Act does not specify a
standard of review for such orders. Section 103(k) awards MSHA broad discretion to effectively
address potentially dangerous, post-accident situations in mines. S. Rep. No. 95-181, at 29
(1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 617 (1978). The wide grant of authority
under the Act and the expertise of MSHA in dealing with dangers in mines suggest that a 103(k)
order merits a narrow standard of review. See West Ridge Resources, Inc., 31 FMSHRC 287,
301-02 (Feb. 2009) (ALJ). The appropriate standard of review for 103(k) orders is an arbitrary
and capricious standard. Pattison Sand Co., LLC v. Federal Mine Safety and Health Review
Com'n, 688 F.3d 507, 512-513 (8th Cir. 2012); Pinnacle Mining Co., 33 FMSHRC 2207, 2232
(Sept. 2011)(ALJ); Performance Coal Co., 32 FMSHRC 1352, 1357 (Sept. 2010) (ALJ). Hecla,
moreover, did not directly challenge either order, but rather the agency’s action of maintaining
Order No. 8605614 after it issued Order No. 8605622.
Based upon the evidence before me, I find that MSHA’s action was not arbitrary or
capricious. The Commission “is not to substitute its judgment for that of the agency” under the
narrow scope of review of the arbitrary and capricious standard. Motor Vehicle Mfrs. Ass'n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-44 (US 1983). The Secretary “must
examine the relevant data and articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice made.’” Id at 43 (citing Burlington
Truck Lines v. United States, 371 U.S. 156, 168 (US 1962). The Secretary’s action is arbitrary
and capricious if the Secretary:
has relied on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the agency, or is so
8

In addition to arguing that the Secretary’s actions were arbitrary and capricious, Hecla
also argues that withdrawal of miners from the affected area complied with section 103(k), Order
No. 8605622 superseded and mooted Order No. 8605614, Order No. 8605622 terminated Order
No. 8605614 as a matter of law, and that Order No. 8605622 made it impossible for Hecla to
comply with Order No. 8605614. Although I considered these arguments with respect to the
arbitrary or capricious standard of review, these arguments will also be addressed in the
compensation case.
9

Section 103(k) of the Act states:

In 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, and the
operator of such mine shall obtain the approval of such representative, in
consultation with appropriate State representatives, when feasible, of any plan to
recover any person in such mine or to recover the coal or other mine or return
affected areas of such mine to normal.
30 U.S.C. § 813(k).

36 FMSHRC Page 2753

implausible that it could not be ascribed to a difference in view or the product of
agency expertise.
Id. A party that seeks to prove that agency action is arbitrary and capricious carries “a heavy
burden indeed.” Wisconsin Valley Improvement v. FERC, 236 F.3d 738, 745 (D.C. Cir. 2001)
(citing Transmission Access Policy Study Group v. FERC, 225 F.3d 667, 714 (D.C. Cir. 2000).
Hecla did not fulfill its burden to show that MSHA’s decision to maintain Order No. 8605614
when it issued Order No. 8605622 was arbitrary or capricious.
There was a rational connection between MSHA’s decision to maintain Order No.
8605614 after issuing Order No. 8605622 and the particular facts that arose. The Secretary
claims that he retained Order No. 8605614 to focus upon the affected area because it was
dangerous and the cited conditions were not corrected. (Tr. 82-84). Although Breland testified
that certain aspects of Order No. 8605622 superseded aspects of Order No. 8605614,10 Breland,
Amos, and MSHA’s assistant district manager Kevin Hirsch all agree that conditions in the area
affected by Order No. 8605614 were not corrected and Order No. 8605614 was therefore not
terminated. (Tr. 86, 109, 170). The Secretary believes and the testimony of all three of his
witnesses reflects that the area targeted by Order No. 8605614 presented a greater danger than
other areas of the mine. Hirsch testified that at the time MSHA issued Order No. 8605622, it was
not clear whether Order No. 8605622 would be terminated before or after Order No. 8605614.
(Tr. 230). Hirsch’s argument may seem academic since Order No. 8605622 encompassed the
entire mine, but it reflects that MSHA believed at the time that maintaining Order No. 8605614
kept a “spotlight” on the most dangerous area of the mine, ensuring that it would not be
overlooked and accessed by miners. (Tr. 83). MSHA issued each order, moreover, under separate
MSHA event numbers.
Practically, MSHA could have modified Order No. 8605622 to highlight the 5900 area;
maintaining Order No. 8605614 was not the only way to address the cited area. After MSHA
issued Order No. 8605622, the only modifications it issued to Order No. 8605614 simply
corrected a numbering error in the modification chain and terminated the order. Every
modification that concerned efforts within the mine was made to Order No. 8605622, including
modification 8605622-13, which exclusively addressed the area controlled by Order No.
8605614. Although these actions are inconsistent with the Secretary’s position that Order No.
8605614 needed to be maintained to control the area in and around the 5900 haulage drift, they
do not render MSHA’s decision to maintain that order arbitrary or capricious. Reviewing courts
should “not substitute our own judgment for that of the agency[.]” Wisconsin Valley
Improvement, 236 F.3d at 745. Numerous inspectors from different field offices inspected the
Lucky Friday Mine after the rockburst of December 14, 2011 and six different inspectors issued
modifications to Order Nos. 8605614 and 8605622. There was miscommunication between
Hecla and MSHA about how the orders affected each other as both Superintendent Doug Bayer
10

MSHA acknowledged that the issuance of Order No. 8605622 made it impossible for
Hecla to comply with many of the requirements set out in Order No. 8605614, as modified.
Hecla could no longer monitor the stress gauges in the 5900 drift or enter that drift for any
purpose. As detailed in footnote eight, Hecla relies on this fact in making many of its arguments.
I find that these arguments are not determinative in these contest cases but will be relevant when
considering the application of fourth sentence of section 111 in the compensation case.

36 FMSHRC Page 2754

and Vice President of technical services John Jordan believed that Order No. 8605614 was moot
and terminated. (Tr. 300, 370). In this confusing situation, it was rational for MSHA to maintain
Order No. 8605614 to show both MSHA and Hecla employees that the area addressed by Order
No. 8605614 was especially dangerous. Miners were less likely to enter the area and inspectors
were less likely to mistakenly modify a 103(k) order without considering the conditions
addressed by Order No. 8605614. The Secretary did not offer an explanation that runs counter to
the evidence before it; MSHA sought to protect miners by highlighting a dangerous area, which
maintaining Order No. 8605614 accomplished.11
My decision today is confined to the facts and issues before me. It does not address many
of the issues required to resolve the compensation case before me.
III. ORDER
For the reasons set forth above, I AFFIRM Order Nos. 8605614 and 8605622.12 I hold
that the Secretary’s decision to maintain Order No. 8605614 after the issuance of Order No.
8605622 was not arbitrary or capricious.

/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge
Distribution:
Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th St., Suite 2150, Denver, CO 80202
(Certified Mail)
Matthew L. Vadnal, Esq., and Patricia Drummond, Esq., Office of the Solicitor, U.S.
Department of Labor, 300 Fifth Avenue, Suite 1120, Seattle, WA 98104-2397 (Certified Mail)
Susan J. Eckert, Esq., Santarella & Eckert, LLC, 7050 Puma Trail, Littleton, CO 80125
(Certified Mail)

11

My holding in this case is based my consideration of the two section 103(k) orders of
withdrawal. The issuance of Citation No. 8565565 alleging that Hecla worked in the face of the
first section 103(f) order does not alter my holding that the Secretary’s actions were not arbitrary
or capricious.
12

The parties do not dispute that the Commission has jurisdiction to review 103(k) orders
and has the authority to either affirm or vacate 103(k) orders. The Secretary and the
Steelworkers, however, argue that the Commission lacks the authority to modify 103(k) orders. It
is unnecessary to reach this issue because I affirmed the 103(k) orders at issue here.
36 FMSHRC Page 2755

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

October 31, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING:
Docket No. WEST 2012-1042
A.C. No. 45-03628-28844

v.
RONALD SAND & GRAVEL,
Respondent.

Mine: Ronald Sand & Gravel
DECISION

Appearances:

Sean Allen, Esq., U.S. Department of Labor, Office of the Solicitor, 1244
Speer Boulevard, Suite 216, Denver, Colorado, on behalf of Petitioner
Louie Gibson, Ronald Sand & Gravel, 1221 S. Thorp Highway,
Ellensburg, Washington, on behalf of Respondent

Before:

Judge Barbour

In this proceeding arising under the Federal Mine Safety and Health Act, 30 U.S.C. §
801, et seq. (2012), the Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health
Administration (“MSHA”) alleges that Ronald Sand and Gravel (“Ronald”) in 11 instances
violated various mandatory safety, training, and reporting standards for the nation’s metal and
nonmetal mines.1 The Secretary further alleges that six of the 11 purported violations were
significant and substantial contributions to mine safety hazards (“S&S” violations2), that 10 of
1

The standards are set forth at 30 C.F.R. Part 56 (safety), 30 C.F.R. Part 46 (training),
and 30 C.F.R. Part 50 (reporting).
2

An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). A
violation is properly designated S&S “if, based upon the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co. 3 FMSHRC
822, 825 (Apr. 1981). 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 the Mathies criteria).

36 FMSHRC Page 2756

the 11 were caused by Ronald’s moderate negligence, and that one was caused by its low
negligence. Further, the Secretary asserts that the inspector who cited the alleged violations made
correct gravity findings. The Secretary proposes penalties ranging from $243.00 to $100.00. In
the aggregate, the proposed penalties total $1,553.00.
After the Secretary’s petition was filed, Louie Gibson, Ronald’s owner and operator,
answered on behalf of the company. The Commission’s Chief Judge assigned the case to the
court, and the court ordered the Secretary’s counsel to contact Gibson to determine whether the
case could be settled. After several discussions with Gibson, counsel advised the court that the
company wanted a hearing and the case was noticed for hearing in Ellensburg, Washington. On
November 15, 2013, counsel stated that he intended to call a witness who, due to fears of
physical retaliation, preferred to testify remotely, e.g., via the telephone. Counsel also requested
that the hearing take place in a facility with full security, including metal detectors. During a
subsequent conference telephone call with counsel and Gibson, the court discussed the
possibility of transferring the hearing to the federal or county courthouse in Yakima,
Washington, both of which are subject to full security protocols. The parties agreed to the
transfer, even though it meant deferring the date of the hearing. The parties also agreed to the
court’s suggestion that another attempt be made to settle the matter. The court appointed a
settlement counsel. After much back and forth, the settlement counsel reported his efforts had
failed. Therefore, the case was heard in Yakima on July 15, 2014. At the hearing, Gibson
represented the company.
TESTIMONY OF GREGORY (“GREG’) NICHOLS
Gregory (“Greg”) Nichols lives more than 500 miles from Yakima. He was sworn in and
testified via the telephone.3 Nichols stated that he has 30 years or more of mining experience, but
that his career with Ronald was short. It began on March 9, 2012, when the company advertised
a job for an equipment operator. Nichols came to the mine to apply. Tr. 19, 21. Nichols was
hired and began work on Monday, March 12. He worked a full day on Monday. He did not work
on Tuesday, March 13. He worked a half day on Wednesday, March 14, and then, he quit (his
version), or he was fired (Ronald’s version). Tr. 21-22.
Nichols described the mine as primarily a rock crushing facility at which basalt rock is
loaded from an excavator into a crusher and crushed to size. Tr. 23, 36-37. According to Nichols
the equipment at the site consists of an “impact mill[4], a rolls [(sic.)], a screen deck and
some . . . conveyor belts.” Id. Nichols maintained that prior to beginning work he was not given
any newly employed experienced miner training. Id. Nor was he given a tour of the mine site. Tr.
24. He testified that he did not receive any instructions in recognizing electrical hazards. Id.
Emergency medical procedures were not reviewed with him. He was not advised about the
3

The court took the Secretary’s concerns at face value. In allowing Nichols to testify
remotely, the court recognized the detriments of remote testimony, but chose to err, if at all, on
the side of security.
4

The “impact mill” was frequently referred to as “the crusher” and the
“impactor/crusher.”

36 FMSHRC Page 2757

mine’s evacuation plan or the health and safety aspects of the tasks to which he would be
assigned, and he was not advised of his rights under the Mine Act. Id. Nichols stated that he was
never asked to sign any training forms and that he was never given any site specific hazard
awareness training. Id.
Nichols recalled that on his first work day, Gibson asked him to crawl inside the impact
mill to repair some plates, a task that required welding. Tr. 25. The metal plates protected the
mill from being damaged by rock during the crushing process. Tr. 25-26. Nichols maintained
that the entire time he worked on and in the mill, it was not locked or tagged out. Tr. 26-25.
Nichols stated that he expressed concern about this to Gibson and that Gibson responded that
Nichols would “know when to get out [of the mill] when [he] heard the machine start.” Tr. 27.
As best Nichols could recall, the key for the mill’s motor was in its ignition, at the top of the
mill. Tr. 29, 30, 60. Had the key been turned in the ignition, Nichols was “pretty sure” the engine
driving the mill would have started, and if the mill went into gear, Nichols stated that it would
“have ate me up.” Tr. 30, see also Tr. 31.
Nichols also maintained that while he was welding inside the mill, Gibson and his helper
crawled over the outside of the machine changing some of the mill’s outer plates. Tr. 27-28. The
vibrations from their work and from the welding caused dust and debris to fall on Nichols, some
of which landed on his face. Id. Nichols was also concerned about the pinch points to which he
was subject inside the mill. He stated that if the interior barrel of the mill rolled while he was
inside, his hands could be caught in the moving parts. Tr. 32-33.
Nichols testified that he worked inside the mill for “an hour or so” before the mill was
activated and started crushing.5 Tr. 56. He testified that after he got out of the mill and it started
running, he greased a bearing on one of the conveyor belt rollers and freed some jammed rollers.
Tr. 33-34. He believed that the moving bearing and its mechanism were not guarded. Tr. 34.
Nichols stated, “You could just crawl up on the bearing and get to the grease surface and grease
that bearing while it was running. And you were just . . . inches from the rolls while you’re
greasing it.” Tr. 34-35 see also Tr. 74. Nichols estimated that the bearing required greasing every
15 to 20 minutes. Tr. 35, 74.

5

According to Nichols, after the mill started, the push for production was constant:
[W]e pretty much crushed eight hours . . . nine
maybe. [A]s soon as we got the crusher working
we didn’t stop. We didn’t even stop to talk . . . .
[I]t was all hand signals, go do this, go do that . . .
dig that out, get that conveyor tracked and
running again. We’re crushing, we’re not
shutting down.

Tr. 55; see also Tr. 73-74.

36 FMSHRC Page 2758

After production started, Nichols recalled Gibson feeding rock into the mill with the
excavator. Nichols described the work environment as harsh. He and Scott Dunsing, the other
miner on the job, worked,
for eight hours straight in 28-degree weather with
the snow blowing sideways and the dust going
everywhere all over [Gibson’s] truck, all over
[Nichols’] car, all over us. It was horrible.
Tr. 56.
Nichols testified that while working at the mine he never was provided with safety
glasses or other eye protection, despite the fact the “dust and stuff was really bad.” Tr. 41. Nor
was he provided with ear protection. He always carried his own ear plugs. Tr. 42. Further, there
were no toilet facilities at the mine. Tr. 43.
During his first day on the job, Nichols, who had his own hard hat, did not wear it.
Rather, he wore a wool hat to stay warm. Tr. 38. Nichols recalled that Dunsing wore a baseball
cap. Gibson wore a hard hat, but intermittently. Tr. 38. In Nichols’ opinion, it was hazardous to
go without a hard hat because when the mill was operating, fly rock “pop[ped] out of the top
of . . . [the mill’s] feeder.” Tr. 39. The fly rock could travel 20 to 25 feet. Nichols believed that
both he and Dunsing were exposed to the fly rock. Tr. 40. He estimated that the fly rock
averaged two to three inches in diameter. Id., 80. He stated that when the mill was operating,
rocks were “coming out of the sky like meteorites.” Tr. 80. He also described the rocks as, “like
bullets coming down on top of you.” Id. Nichols maintained that Gibson told him to stand away
from the mill because of the fly rock. Tr. 81.
During his brief time as an employee of Ronald, Nichols lived at the mine in the
generator shack (also referred to as the “well house”). Tr. 54. According to Nichols, there was no
port-a-potty at the well house, nor anywhere else at the mine. Nichols claimed he “made do”
with a bucket and some timbers. Tr. 75-76.
Nichols maintained that on his third day (Wednesday), several problems arose with
defective equipment, and Nichols described Gibson as not “in a very good mood.” Tr. 44. After a
controversy between the two over whether or not Nichols knew how to operate a grease gun,
Nichols said to Gibson, “I can’t work for you,” and Nichols prepared to leave the mine. Tr. 45.
Nichols claimed that he reminded Gibson that Gibson owed him money for the time he had
worked and that he decided to wait around for Gibson to pay him. Id. While he was waiting,
Dunsing appeared. Nichols testified that Dunsing was “pretty much crying that [Gibson had]
yelled and screamed at him and called him all these words and . . . [Dunsing] asked . . . if I could
give him a ride home. And I told him, [s]ure[.]” Tr. 46.

36 FMSHRC Page 2759

Nichols stated that before leaving the area he had another run-in with Gibson, one that
caused Nichols to pay a visit to the county sheriff. Nichols testified:
[Gibson] was telling me he was going to turn me
in for driving on a suspended license . . . And I
went to the town hall and talked to the sheriff
there about [Gibson] threatening me . . . but
it was out of the sheriff’s jurisdiction . . . . So he
just told me . . . .You can drive if you want,
just go back to Wenatchee and get out of here.
Tr. 47.
After meeting with the sheriff, Nichols stated:
I was waiting around to get my pay. And it
took a while so I went back to the mine . . .
and there was a bunch of guys there, all
[Gibson’s] friends . . . and I’m sure
[Gibson] told them about me.
Tr. 47.
According to Nichols, at some point before he left the county, Gibson called Nichols
“a few names” (Tr. 47), and on Wednesday, December 14, an unnamed employee of Gibson’s
allegedly told Nichols never to come back to the area where the mine was located, that if he
returned, he would be killed. Tr. 48. Nichols testified that the threat prompted him to call MSHA
and report conditions at the mine that Nichols believed to be hazardous. Nichols stated:
[T]he employee told me never to come back to
this valley or he’d shoot me. And he told me
he was going to call the police on me for driving
on a suspended license.
After he threatened me . . . [t]hat’s when I called
MSHA.
Tr. 52-53.
Also, on that Wednesday, Nichols sent a text to Gibson confirming that he was quitting,
that he was, as he put it, “done running [the] crusher.” Tr. 64. According to Nichols, Gibson
responded, “You coward, get your ass back up here . . . come back up to the mine.” Tr. 66.
Nichols replied to Gibson, “I guess some people have to learn the hard way.” Tr. 67. When asked
by Gibson what he meant, Nichols stated:
That means . . . [y]ou’re going to learn that you can’t
go do that to people and stick people in that

36 FMSHRC Page 2760

position and treat people that way. That’s what
that text means.
Tr. 67.
Gibson testified that when he called MSHA (Tr. 47-48), he told the person who answered
that he wanted an inspector to “come out [to the mine] and see . . . . what [Gibson] put [his]
employees through.”6 Tr. 65
TESTIMONY OF INSPECTOR DEAN BROOKS
Nichols’ call led MSHA to send its inspector, Dean Brooks, to the mine. However, before
traveling to the mine, Brooks went to Nichols’s home where he and Nichols talked about
Nichols’s experiences at the mine and about conditions there. Tr. 49. Then, on March 16, Brooks
inspected the mine. Tr. 95.
Brooks testified that he has worked for MSHA for approximately nine years. He
estimated that approximately 80% of his time has been spent inspecting mines. Tr. 90. Brooks
stated that prior to his March visit he inspected Ronald’s operation approximately four or five
times. Tr. 92, 112. He described the mine as “set up on the side of a hill.” Tr. 92. Brooks recalled
the overall mine site as being approximately 300 feet long by 140 feet wide. Tr. 92. He believed
that the area had been cleared by using an excavator and a bulldozer. Id. In addition to the
crushing plant, there were areas for parking equipment and stockpiling product. Id.
Brooks testified that his March 16 visit to the facility was ordered by his supervisor in
response to Nichols’ “hazardous condition” complaint. Tr. 95. Upon arriving at the mine, Brooks
determined that mining activity had taken place. According to Brooks, rock had been crushed,
sized, and sorted. Although Brooks agreed that mining activity occurred “sporadically,” the
stockpiles of product indicated to Brooks that the mine “had been in production.” Tr. 98. Brooks
also noted that haul trucks were used at the mine, as were excavators, a water truck, and pickup
trucks. Tr. 97. Upon arriving, Brooks met with Gibson. Tr. 108. At the time, mining was not in
progress, but maintenance activities were underway. Id.
The March 16 inspection resulted in the issuance of several citations for violations of
mandatory safety, training, and reporting standards. During the course of his testimony, Brooks
described the conditions that lead him to issue each of the citations. Tr. 106-258.
TESTIMONY OF INSPECTOR MICHAEL NELSON
Michael Nelson is an MSHA inspector and accident investigator. Tr. 260-261. Nelson has
been with MSHA since 2009. Nelson testified that he has inspected “[p]robably hundreds” of
sand and gravel crushing operations. Tr. 261. On March 6, 2012, ten days before Brooks’ visit,
6

Nichols also stated, “My motivation for calling MSHA [was] that it was [a] highly
dangerous crushing plant and no one needed to be exposed to that place.” Tr. 86.

36 FMSHRC Page 2761

Nelson conducted a compliance assistance visit at the Ronald facility. Tr. 262, 263. The plant,
which was not yet in operation, was partially set up. Nelson went to the facility because the
company was installing a new crusher. Tr. 262-263. Nelson stated that the purpose of his visit
was to “point out violative conditions or practices” with regard to the new operation and give the
company an opportunity to correct potential violations before work began. Tr. 263. Nelson
maintained that he pointed out several possible violations with regard to guarding on the crusher.
Tr. 264. He also believed he spoke with someone about lock out/tag out procedures, although he
could not recall if Gibson was involved in the discussion. Tr. 265, 270.
LOUIE GIBSON
Louie Gibson testified on behalf of the company. He maintained that everything Nichols
alleged was a lie. Tr. 272. According to Gibson, Nichols was motivated to lie because he was
fired and he wanted to “get back” at Gibson. Id. Gibson pointed out that Nichols only contacted
MSHA after he was let go. Id.
CITATION NO.
8566007

DATE
3/16/2012

30 C.F.R. §
56.12016

The citation states:
The portable crusher/screen plant, electrically
powered equipment that was being worked on
was not properly locked out before beginning
work. Two miners were observed installing
guards and doing other maintenance around the
plant and while the main power-supply gen-set
was locked out, no tags were placed to indicate
who had put them there or why the generator
was locked out. Were an accident to occur
because proper lock-out/tag-out procedures were
not followed a serious injury could result.
Gov’t Exh. 3.
Brooks testified he issued the citation because the company had not “follow[ed] proper
lock out/tag out procedures.” Tr. 106. In Brooks’ opinion the company’s failure subjected its
miners to the hazards of becoming entangled in the equipment or of being injured by rocks
coming off the conveyor. Id. Such accidents could be fatal. Id.
Brooks stated that lock out/tag out procedures “are taken extremely seriously by MSHA
because of the seriousness of injuries that occur” when they are not followed. Id. He found,
however, that an accident was “unlikely.” Gov’t Exh. 3. Because the mine is small, there were
few miners exposed to the hazard, and the miners all knew one another and where each miner
worked. Tr. 107. Brooks therefore believed that the likelihood of a miner being hurt due to the
violation “was pretty slim.” Id.

36 FMSHRC Page 2762

Nonetheless, in Brooks’ view, Gibson should have known about the miners’ failure to
follow proper lock out/tag out procedures because the standard is “fairly plain,” the condition
was “fairly obvious” and Gibson had a training program covering lock out/tag out requirements
and was familiar with the requirements. Tr. 109.
Gibson asked Brooks if any names were written on the sides of the locks, and Brooks
stated that he could not recall. Tr. 114, 127.
THE VIOLATION, ITS GRAVITY, AND THE COMPANY’S NEGLIGENCE
Section 56.12016 requires that before mechanical work is done on electrically-powered
equipment, “[p]ower switches shall be locked out” and “suitable warning notices shall be posted
at the power switch and signed by the individuals who are to do the work.” Brooks’ testimony
and his contemporaneous notes establish that work was being done on the electrically powered
crusher and although the electricity to the plant was locked out, no signed tags were in place
warning that work was being done on the plant and identifying those doing the work. Gov’t Exh.
3 at 2. In other words, the power switch for the crusher was not properly tagged out. Tr. 106.
The violation was very serious in that a failure to follow proper lock out/tag out
procedures could lead to the power being restored while maintenance work was ongoing and
when a miner was in the vicinity of the plant’s moving parts. A miner easily could be seriously
injured or killed. Tr. 106. However, as Brooks explained and found, such an accident was
unlikely. Id. Gov’t Exh. 3 at 2. The fact that very few miners worked at the mine and that the
miners were aware of one another’s presence and assigned tasks significantly reduced the
chances power would be mistakenly restored to the plant. Tr. 106.
The violation was the result of moderate negligence on Ronald’s part. Brooks
acknowledged the company trained its miners in lock out/tag out procedures. Tr. 109.
Nonetheless, the court accepts Brooks’ characterization of the lack of signed warning notices as
“fairly obvious.” Tr. 109. Gibson should have recognized the violation and corrected it. He did
not. Thus, he, and through him, the company, failed to meet the standard of care required.
CITATION NO.
8566008

DATE
3/16/2012

30 C.F.R. §
56.20008

The citation states:
At the mine-site . . . toilet facilities readily accessible
to mine personnel and truck drivers was [(sic)] not
provided. There is a crushing plant set up and at
least one miner works on-site, running the plant,
doing maintenance or loading trucks, sometimes
for 8-hours or more at a time. The nearest toilet
is located in a private residence approximately
400 yards away. The renters have dogs that run

36 FMSHRC Page 2763

free and whether the toilet there is available is
uncertain. Were a miner to have an accident
because conveniently located and accessible
sanitary facilities did not exist an injury could
result.
Gov’t Exh. 5.
According to Brooks, during the course of the inspection on March 16, he asked Gibson
if there was a port-a-john at the mine. Brooks stated that Gibson responded:
he didn’t think he needed to have one . . . because he owns
a . . . [nearby] house . . . . And that he has permission to go in
there and use the bathroom. And I think at that time I asked
him who lives in the house and he said there’s renters there
but they won’t mind. And then . . . I made a note that there
were a couple of dogs running around the house. And this
is some distance from the mine site . . . 400 yards.[7]
And there wasn’t much of a path going across the field[.]
Tr. 119.
In the inspector’s view, the conditions did not meet the requirements of the standard,
which provides that toilet facilities be “compatible with the mine operations and . . . [that they
be] readily accessible to mine personnel.” 30 C.F.R. §56.20008(a). Brooks’ finding that there
was no “readily accessible” sanitary facility at the mine was based on the fact that there was no
port-a-john at the mine, that the rental house was approximately 400 yards away, and that the
renter’s dogs were not leashed. Tr. 121. Brooks concluded that although the condition was
unlikely to result in an injury (Tr. 122-123), Gibson should have known that the off-site house
did not meet that standard and therefore that the company, through Gibson, was moderately
negligent. Tr. 124, Gov’t Exh. 5.
THE VIOLATION, ITS GRAVITY, AND THE COMPANY’S NEGLIGENCE
Brooks was a credible witness and the court finds the conditions, which are restated in his
contemporaneous notes, existed as he described. See Gov’t. Exh. 5. Further, the court agrees with
Brooks that the “arrangement” to use the bathroom at the rental house did not comport with the
standard in that the bathroom was not “readily accessible.” Even if the house was 100 yards from
the mine, as suggested by Gibson (Tr. 125), the presence of the unleashed dogs hindered miners’
access to the bathroom. The court also agrees with Brooks that the violation was unlikely to
cause an accident. Gov’t Exh. 5. The violation was not serious, and the court further agrees with
the inspector that Ronald’s negligence was “moderate.” Id., Id. at 2. The court has no doubt that
7

When asked on cross examination if the rental house was approximately 100 yards from
the mine, rather than 400 yards, Brooks responded that he “didn’t think so.” Tr. 125.

36 FMSHRC Page 2764

Gibson genuinely believed the house was suitable and in compliance, but, as the court has found,
the presence of the unleashed dogs alone should have alerted him to his error.
CITATION NO.
8566009

DATE
3/16/2012

30 C.F.R. §
56.15004

The citation states:
A miner was observed doing maintenance work around
the crusher/screen plant at the Parke Road mine site
when he was not wearing safety glasses or other eye
protection. He was doing maintenance at the time and
using tools where there could be impact or abrasion.
The plant which normally produces crushed rock was
down for maintenance at the time. This is a windy
location and there is dust that gets blown around and
fly rock is generated by the crusher, screens and
loading operations. When questioned, the miner stated
he didn’t like wearing eye protection as it’s too hard
to keep clean and admitted he didn’t always wear
safety glasses when running the plant. Were a miner
to be struck in the eye because he was not wearing
eye-protection a serious injury could result.
Gov’t Exh. 6.
Brooks testified that he issued the citation because during the inspection he saw miners
who were not wearing eye protection while working in a location where there might be a hazard
to the miners’ eyes.8 Tr. 127, 136. The miners were Gibson and another man who was working
with him.9 They were engaged in maintenance and repair work. Brooks also noticed dust being
picked up by the wind where the men were working. He believed that the dust posed a hazard to
the men’s unprotected eyes. Tr. 128, 139. Brooks therefore cited the company for a violation of
section 56.15004, a mandatory safety standard requiring persons to wear safety glasses when in
or around an area of a mine where a hazard exists which could cause injury to their unprotected
eyes. By failing to wear eye protection, the miners exposed themselves to the possibility of a
foreign object striking one or both of their eyes. Tr. 127-128. Brooks testified that he asked
Gibson why he was not wearing eye protection, and Gibson responded that “he didn’t like
wearing eye protection as [it was] too hard to keep clean.” Tr. 129. Brooks stated that Gibson
also told him that he didn’t always wear safety glasses when running the plant. Id.
8

Brooks stated he was alerted to look for possible violations of section 56.15004 by
talking to Nichols about working conditions at the mine. Tr. 136.
9

Although the citation and Brooks’ notes restrict the allegation to one unnamed miner,
Brooks in his testimony made clear that he saw two miners who in his opinion violated the
standard.

36 FMSHRC Page 2765

Brooks found the condition to be S&S. He explained that he did so because he saw the
miners working in conditions that could have resulted in scratched corneas “or worse.” Tr. 134.
Brooks also feared that chips from rocks flying off the crushing equipment could lodge in the
miners’ eyes, although Brooks admitted that he did not see any fly rock while the men were
working around the equipment. Tr. 132.
He believed that the company was moderately negligent in not requiring the miners to
wear safety glasses. Brooks stated that Gibson “didn’t do everything in his power to make sure
that everyone on that site was wearing safety glasses.” Tr. 135. Brooks felt that most people
would think there was an eye protection problem at the mine given the dust and other flying
material. Tr. 136.
THE VIOLATION, ITS S&S NATURE, ITS GRAVITY,
AND THE COMPANY’S NEGLIGENCE
The citation charges the company violated section 56.15004, and the evidence more than
proves the violation. Brooks’ testimony that the area where the miners were working was very
dusty was not refuted, and the court finds it to be a fact. Nor was his testimony contradicted that
the miners were not wearing safety glasses even though the dust posed a hazard to their
unprotected eyes. Tr. 128, 139. On the basis of these facts, the court finds a violation of section
56.15004.
The court further finds that the violation was both S&S and serious. The court has found
a violation of section 56.15004. The court further finds that the discrete health hazard presented
by the violation was damage to the eyes of the miners who chose not to wear eye protection. As
Brooks observed, scratched corneas or worse could have been the result. Tr. 134. The court
concludes that assuming continued maintenance activities in the blowing dust, it was reasonably
likely that the lack of eye protection would cause at least one scratched cornea. This is especially
true as the court credits Brooks’ testimony that Gibson said that he did not like to wear safety
glasses because they were too hard to keep clean and that he did not always wear them when
running the plant. Tr. 129. The impairment of vision that would result is a serious injury. The
fact that a serious injury could result from the violation means that the violation itself was
serious as well as S&S.
The court further finds that the company’s negligence was high. Brooks maintained that
Gibson “didn’t do everything in his power to make sure that everyone on that site was wearing
safety glasses.” Tr. 135. This is undoubtedly true, and the evidence supports finding that Gibson
was still more culpable. He was one of the miners who worked in the swirling dust without
safety glasses. Tr. 129. As the on-site manager, he was called to a high standard of care, one that
he utterly failed to meet.
CITATION NO.
8566013

DATE
3/20/2012

36 FMSHRC Page 2766

30 C.F.R. §
46.6(a)

The citation, as modified, states:
This violation occurred on 3/12/12. A miner
working at the mine was put to work doing
maintenance and repair procedures and other
activities without first being given new miner
training. Two other miners were working at
the mine at the time. The [Mine Act] declares
that an untrained miner is a hazard to himself
and others. Were an accident to occur because
a miner was not trained a serious injury
could result.
Gov’t Exh. 7.
As previously described, Brooks met with Nichols at Nichols’ home. Tr. 138-139, 142.
During the course of their meeting, Nichols told Brooks that before he started working at the
mine, he was not given any training. Tr. 144-146. Following their talk, Brooks visited the mine
and issued a citation alleging the company violated section 46.6(a) by putting Nichols to work
without first giving him newly employed experienced miner training as required by the
regulation. Tr. 142-143; Gov’t Exh. 7. Brooks issued the citation despite the fact that the
company maintained records purporting to show that Nichols had in fact been trained. Brooks
identified a document titled “New Task Training Record/Certificate.” Gov’t Exh. 9; Tr. 146. The
form states that it pertains to Nichols. Brooks testified that he saw the form at the mine although
he could not recall when. Tr. 146. The form, which is dated March 12, 2012, indicates the
subjects covered during the purported training and the time spent on training for each specified
piece of equipment. Gov’t Exh. 9. Brooks noted that the form lists all of the equipment at the
mine site and indicates that Nichols was trained on everything listed. Tr. 147; See Gov’t Exh. 9.
However, Brooks also noted that although the form has a space titled “Miner’s Initials,”
Nichols’s initials do not appear anywhere on the document.10 Tr. 148.
In addition, Brooks identified a document entitled “Site-Specific Hazard Awareness
Training Record/Certificate.” Gov’t Exh. 9 at 2. Brooks noted that the document is signed by
Gibson and that it indicates Nichols was given site-specific training for 45 minutes on March 12.
Tr. 148-149. Further, Brooks identified a document titled, “New Miner Training
Record/Certificate,” which is signed by Gibson and which indicates that Nichols received almost
14 hours of training on March 12. Gov’t Exh. 9 at 3. Adding up all of the training that the forms
indicate was given to Nichols on March 12, Brooks calculated that Nichols received 21 hours of
training.11 Tr. 150. Brooks was skeptical the forms reflect the truth. Brooks stated:
[Nichols] says he only worked between nine and
14 hours total. And he described much of that time
10

Brooks acknowledged that there is no regulatory requirement that miners initial or
otherwise sign such a form. Tr. 148.
11

The three certificates actually indicate that a total of 1,300 minutes, or approximately
21½ hours, was devoted to training Nichols on March 12. Gov’t Exh 9 at 1-3.
36 FMSHRC Page 2767

being spent inside the crusher or working around
the plant while the plant was running. So
I don’t see how he could have possibly received this
much training. And certainly not on [March 12] . . . .
So, something’s not right.
Tr. 150.
Although Brooks agreed it is theoretically possible to give a miner 21 hours of training in
a day, he stated that he found it “unlikely.” Tr. 150. However, Brooks also agreed that it is
permissible to give training on several pieces of equipment at the same time and that there is
nothing in the regulations stating how long the training must be. Tr. l58. The regulations simply
require that the training must be “adequate.” Id. Given the possibility of the overlap in hours,
Brooks could not “say for sure if [Gibson] did or didn’t provide the training.” Tr. 159.
Gibson, on the other hand, was adamant that he gave Nichols the required newly
employed experienced miner and site specific training. He stated, “[T]hat’s exactly what we
done.” Tr. 160. He testified he provided Nichols with an introduction to the mine that was site
specific, he gave Nichols a tour of the mine, he instructed him on recognizing and avoiding
electrical hazards, he reviewed the mine’s emergency medical procedures with Nichols, he
reviewed the mine’s emergency evacuation plans, he talked to Nichols about traffic patterns and
control of mobile equipment, and he spoke with Nichols about hazardous materials on the work
site. Tr. 274-275. According to Gibson, all of the training was given on March 12 while the
crusher was being set up. Tr. 276. But, when asked if he gave Nichols instructions on his
statutory rights under the Act, Gibson candidly stated he did not. Tr. 275. (He tartly commented
that Nichols “knew those evidently.” Id.) Nor did he explain the company’s rules for reporting
hazards. Id. (“I don’t think I did. I don’t think I understand that one.” Id.)
Brooks found that the violation was reasonably likely to result in fatal injuries to Nichols.
Gov’t Exh. 7; Tr. 153. He stated that an untrained miner is a “hazard to himself and others.” Id.
He noted that Nichols had been exposed to the various hazards that he, Brooks, had found, while
Nichols worked as an untrained miner.12 Brooks thought it reasonable to expect a fatal injury to
12

Brooks listed the hazards as:
The [hazard] of objects getting in his eyes. The
hazard of being inside the [crusher] without it
being properly locked out. The hazard of the
tags being missing on the main generator. The
[hazard] of fly rock when he was down on the
ground. The [hazard] of not having a port-a-john
in place . . . .[and the hazard caused by] guards
that were missing.

Tr. 153.

36 FMSHRC Page 2768

occur as a result of the lack of training. Tr. 155, Gov’t Exh. 7. Brooks was especially concerned
about the company’s alleged failure to follow required lock out/tag out procedures while Nichols
was inside the crusher and about Nichols being struck by fly rock when working near the crusher
or being entangled in the crusher’s rolls. Tr. 156.
Brooks believed the company was moderately negligent. Gibson had a training plan in
place, as well as policies regarding training. Brooks did not think that Gibson had intentionally
denied Nichols training. Rather, he believed that the need to train Nichols had been
“overlooked.” Tr. 157.
THE VIOLATION, ITS S&S NATURE, ITS GRAVITY,
AND THE COMPANY’S NEGLIGENCE
Section 46.6(a) requires an operator to provide a newly employed experienced miner with
specific training before the miner begins work. Seven areas of required training are detailed: (1)
an introduction to the work environment; (2) recognition and avoidance of electrical and other
hazards; (3) a review of emergency medical procedures; (4) instructions in the health and safety
aspects of the tasks to be assigned; (5) instruction on the statutory rights of miners; (6) a review
and description of the line of authority of supervisors and miners’ representatives and their
responsibilities; and (7) an introduction to the rules and procedures for reporting hazards. 30
C.F.R. §46.6(b)(1)-(7). The court concludes the evidence establishes a violation of the standard,
but that the violation was not as extensive as the Secretary contends.
The Secretary’s allegation, as expressed in the citation, appears to be that Nichols was put
to work without being given any new miner training. Gov’t Exh. 7. The court finds that the
evidence is insufficient to make such a finding. The burden of proving the allegation is on the
Secretary, and although Nichols testified he was given no training (Tr. 24), Gibson was certain
that this was not so, that Nichols was provided with training. Tr. 160, 174-175. For his part,
Brooks admitted that he “could not say for sure” if the required training was or was not provided.
Tr. 159. The court finds the evidence on the issue of the company failing to provide all required
training before Nichols was put to work to be at best in equipoise, which means the Secretary
failed to carry his burden.
However, subsumed within the allegation of an all-encompassing violation of the
standard, is the allegation that particular parts of the standard were violated, and here Gibson’s
admissions support finding a limited violation. Section 46(b)(5) requires that a newly employed
experienced miner be instructed on the statutory rights of miners under the Act. Gibson admitted
that Nichols was not trained in this regard. Tr. 275. Section 46.6(b)(7) requires that a newly
employed experienced miner be introduced to the company’s rules and procedures for reporting
hazards. Gibson also admitted that Nichols was not trained in this regard. Id. Therefore, the court
finds that in these two instances, Ronald violated section 46.6(a).
The court also finds that the violation was neither S&S nor serious. In neither instance
were the hazards contributed to by the violation reasonably likely to lead to injuries of a
reasonably serious nature. It is important to recognize that Nichols was a knowledgeable,
experienced miner, not a starry-eyed neophyte. Nichols was familiar with the Mine Act and
MSHA’s role in enforcement. He knew how to report hazards to the agency and he also knew if

36 FMSHRC Page 2769

he chose to do so, he could report them to Gibson. It is therefore unlikely the violation would
have led to any injuries at the mine.
The court further finds that the company’s negligence was low. As Brooks
acknowledged, the company had a training plan and training policies in place. Tr.157. The court
agrees with Brooks that Gibson’s failure to instruct Nichols on his statutory rights and his failure
to introduce Nichols to the company’s rules and procedures for reporting hazards was not
intentional. Tr. 157. Gibson was in a hurry to begin crushing, and the court believes that Brooks
was probably correct when he stated that Gibson “overlooked” his duty to fully comply with
section 46.6(b). Tr. 157. Thus, while the record supports finding that Gibson did not meet the
standard of care required of him, it also supports finding that he was not far off the mark.
CITATION NO.
8566010

DATE
3/20/2012

30 C.F.R. §
56.12016

The citation states:
A violation occurred on 3/12/21012. Miners were
reported to have been working inside and around
exposed moving parts of the . . . horizontal
impactor/crusher without it being properly locked
out. Power to the crusher is provided by a diesel
drive motor (direct drive) that is started with an
electric starter. According to a witness, the key
was in the ignition at the time and the functional
starting mechanism was beyond the immediate
physical control of the miners doing the work.
Were an accident to happen because the crusher
was not adequately locked out while miners were
working inside, a serious injury could result.
Gov’t Exh. 10.
Section 56.12016 requires in part that “Electrically powered . . . equipment be
deenergized before mechanical work is done on such equipment.” It also requires that “[p]ower
switches . . . be locked out or other measures taken which shall prevent the equipment from
being energized without the knowledge of the individuals working on [the equipment].”
According to Brooks, who based the alleged violation upon what Nichols told him, the company
violated the standard by leaving the key for starting the crusher in the ignition while Nichols was
working inside the equipment. Tr. 165. Brooks stated:
He told me that the key was in the ignition while
he was working inside. And that he didn’t have

36 FMSHRC Page 2770

control over the starting mechanism for that
particular unit while he was inside it.
Tr. 166.13
As Brooks understood it, Nichols was “doing maintenance and repairs to the inside
portion of the . . . [crusher].” Tr. 166. Brooks assumed that Gibson ordered Nichols to work
inside the machine where Nichols was exposed to a “significant hazard.” Tr. 166. With the key
in the ignition, the impactor’s starting mechanism was not disabled. Because the unit could be
started with the key, the standard was violated. Id. To comply with the standard, the key should
have been “pulled out of the ignition and [been] in [Nichols’] possession.” Tr. 168. If someone
turned the key while it was in the ignition, the equipment’s drive motor would start, its clutch
mechanism would divert the drive motor’s energy to the v-belts, and the crusher would begin to
turn. Tr. 174. At that point, Nichols would have been “dragged forward on the conveyor belt,”
caught in the mechanism, and seriously injured or killed. Tr. 175; see also Tr. 171. Recognizing
that he based the alleged violation solely upon what Nichols said, Brooks added that he found
Nichols credible because, “he knew enough about mining . . . to convince me that he was
credible in the events that he was describing.” Tr. 179.
Brooks concluded that a very bad accident was “reasonably likely” to befall Nichols
because there was nothing to prevent one from happening. Tr. 180. Brooks also found that the
operator, through Gibson, was moderately negligent in allowing the violation. He noted that
Gibson is qualified to train miners and that as a qualified trainer, he is supposed to know the
requirements of the law. Tr. 182. He should have known that a miner cannot go into a crusher
without the crusher’s key in his or her pocket. Id. Brooks described the hazard created by the
violation as “pretty obvious.” Tr. 183. However, he did not believe that Gibson intended to
expose Nichols to harm. Tr. 183.
THE VIOLATION
Brooks was clear that he based the alleged violation solely upon what Nichols told him.
Tr. 178. He found Nichols credible in this regard, and so does the court. As Brooks stated,
Nichols’ story was not “a story most people would make up.” Id. Moreover, Gibson did nothing
to rebut Brooks’ version of the facts. Although at the time of the alleged violation another miner
was working on site, Gibson did not offer testimony by the miner as to the location of the key.
Nor did he otherwise refute Brooks’ testimony. The court therefore finds that on March 12, 2012,
Nichols was working inside the crusher and the key to the diesel motor that powered the
equipment and caused it to move was in the motor’s ignition. There was nothing to “prevent the
[crusher] from being energized without the knowledge of the person working on [or in] it.”
Section 56.12016. Ronald clearly violated the standard, as Brooks found.
13

Brooks was asked if he really believed that Nichols was working inside the crusher.
Brooks replied that he did. Brooks stated, “[H]e told me he was in there. And I don’t have any
reason not to believe him.” He observed that it was “not a story most people would make up.”
Tr. 178.

36 FMSHRC Page 2771

S&S AND GRAVITY
Brooks found the violation was S&S and reasonably likely to result in a fatal injury to
Nichols. Gov’t Exh. 10. The court agrees. There was a violation. There was a discrete safety
hazard contributed to by the violation, in that with the key in the ignition, the compactor could
have been started unbeknownst to Nichols, who being unable to quickly escape, easily could
have been maimed or killed. Tr. 175, see also Tr. 171. There also was a reasonable likelihood the
hazard contributed to (the inadvertent starting of the crusher while Nichols was inside) would
result in an injury. First, as mining continued and Nichols worked inside the crusher, he was not
visible to anyone starting the crusher’s motor. Second, the rush to start production at the facility,
increased the likelihood the crusher would be started without a careful determination of Nichols’
whereabouts. Once the key was turned and the crusher began operating, Nichols would have
been in dire danger of dismemberment or death. Taken together these factors establish the S&S
nature of the violation.
Moreover, when considered in the context of the result of the injuries that were likely to
occur (dismemberment or death) due to the violation, the court concludes that the violation was
very serious.
NEGLIGENCE
Brooks found that the company was moderately negligent in allowing the violation
(Gov’t Exh. 10, Tr. 183), but the court, having considered the evidence, finds that the company’s
negligence was high. For all intents and purposes, Gibson was acting for the company. He was
present when the violation took place. He placed one of his employees in a location and in a
situation that easily could have led to the employee’s serious injury or death. These factors mean
that Gibson, and hence the company, failed to meet the high standard of care expected of him.
Moreover, there were no mitigating circumstance. Gibson knew where Nichols was and he knew
or should have known where the key was located. Further, Gibson was qualified to train his
miners in the safety procedures called for by the Act and its regulations. Tr. 182. He was aware,
knew, or should have been aware of what section 56.12016 requires. Despite this, he allowed the
very serious violation to take place under his nose.
CITATION NO.
8566015

DATE
3/20/2012

30 C.F.R. §
56.14107(a)

The citation states:
This viola[tion] occurred on 3/12/2012 and was
reported to MSHA during a hazard complaint
investigation. A miner accessed an elevated
platform next to the . . . crusher to grease the
shaft bearing while the shaft was running. The
grease fittings were located near the exposed
shaft end and shaft bearing and while there the
miner was close (within 12 inches) to the

36 FMSHRC Page 2772

unguarded rotating drum roller. Were a miner
to contact the moving parts a serious injury
could result. The Operator stated that they
only do this when the plant is shut down and
locked out.
Gov’t Exh. 12.
Shortly after Nichols wrote the citation for the violation of the lockout procedures
(Citation No. 8566010), he wrote Citation No. 8566015, alleging a violation of section
56.14107(a) Tr. 189; Gov’t Exh. 12. The standard provides that all moving machine parts must
be guarded against contact.14 Nichols told Brooks that on March 12 he encountered an
entanglement hazard when he was directed to climb on the crusher and stand inches from its
moving parts so he could grease a bearing while the crusher was operating.15 Tr. 193. There was,
according to Nichols, no guard on the crusher’s roller and its bearing.16 Tr. 195. When the
machine is operating the shaft in which the bearing is located spins. Tr. 193. Gov’t Exh. 12 at 5.
To grease the bearing, Nichols had to stand on a platform adjacent to the unguarded and spinning
bearing and shaft.Tr. 191-192. This put him inches from the moving parts (Tr. 198) and exposed
Nichols to the hazard of becoming entangled in the parts. Tr. 192. Once he was caught by the
moving bearing or shaft, Nichols could have been drawn into the roller’s pinch point. Id. Brooks
believed Nichols would have been lucky to only lose an arm. Tr.193. Brooks stated that he was
not surprised Nichols reported the condition because, in fact, the mine was not a safe place to
work. Tr. 199. Brooks maintained that if Nichols had not told him about the condition, he still
would have cited it based on what he saw when he inspected the mine. Tr. 194. He described
what he observed as an “exposed moving machine part next to an area [which] somebody could
access.” Tr. 195.
Brooks believed that working close to the moving parts made inadvertent contact
reasonably likely to occur. Tr. 193. It would take only a “momentary lapse of consciousness” for
Nichols to place his hand on the shaft or for Nichols to slip and fall onto the parts. Tr. 193. In
addition, Nichols said that Gibson instructed him to grease the bearing of the shaft. Tr. 196.
14

30 CFR §56.14107(a) states in full:
Moving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains,
drive, head, tail, and take-up pulleys, flywheels,
couplings, shafts, fan blades; and similar
moving machine parts that can cause injury.

15

Brooks wrote “within 12 inches” on the citation. Gov’t Exh. 12. Nichols testified the
distance was within six inches. Tr. 193, 198. When determining the existence of the violation
and the hazard it presented, the court finds the difference in the measurements immaterial.
16

Brooks chose to believe Nichols because he “saw other things [at the mine] that
confirmed [Nichols’s] honesty.” Tr. 235. Brooks saw fresh grease in the vicinity of the bearing.
Tr. 195. He also found that the moving parts lacked a guard, just as Nichols maintained. Id.

36 FMSHRC Page 2773

Therefore, in Brooks’ opinion, Gibson should have known about the lack of a guard. It was
visually obvious and other moving machine parts were guarded. Id.
Nelson maintained that during the compliance assistance visit, he specifically told Gibson
the area needed to be guarded. Tr. 266. Gibson, however, disputed Nelson’s account. Gibson
asserted that the unguarded area about which Brooks and Nelson testified was not the area cited
by Brooks. Tr. 268.
To abate the condition the company installed remote grease lines, thus eliminating the
need for a miner to be adjacent to the moving parts. Tr. 197. Gibson also eliminated the platform
where Nichols stood and retrained miners about exposure to moving parts. Id.
THE VIOLATION
The record fully supports finding the company violated section 56.14107 as alleged.
Brooks faithfully reiterated what Nichols told him, and what Nichols said was confirmed by
what Brooks saw. Tr. 195. The court finds that a miner could come within a few inches of the
unguarded moving parts and that the parts could cause a serious injury if they were contacted by
the miner. The court concludes that the cited area should have been guarded. It was not.
S&S and GRAVITY
The violation was both S&S and serious. The first element of the Mathies test was
established in that the company violated the standard. The second element – that is a discrete
measure of danger to safety contributed to by the violation – also was met. The lack of a guard to
prevent access to the moving parts meant that a miner was subject to a severe injury should the
miner become entangled in the parts. The third element – a reasonable likelihood that the hazard
contributed to will result in an injury – was established as well. The work assigned to Nichols put
him within inches of the unguarded moving part. While there is no evidence his footing was
insecure or that he was otherwise likely to slip, the court takes judicial notice of the fact that
being so close to the unguarded, moving parts meant that Nichols’clothing or hand was likely to
contact the moving parts. A small move in the wrong direction, a dropped tool, or simply a
moment of inattention, and Nichols would have been caught. Finally, Brooks’ testimony clearly
established that the fourth element of the Mathies test was met and that the violation was serious.
Brooks noted, and there is really no dispute, that once entangled in the moving parts, Nichols
would have been lucky if he only lost an arm. Tr. 193.
NEGLIGENCE
Brooks found the company was moderately negligent, and the court agrees. As Brooks
testified, Gibson should have known of the violation. Gibson assigned Nichols to grease the
equipment. Tr.196. Nelson and Gibson clashed over whether Nelson advised Gibson the area
needed to be guarded, and the court finds there is insufficient corroborative evidence to
determine who is correct. Tr. 266, 268. Therefore, the court concludes that the evidence does not
establish the company was on actual notice guarding was required. The court finds, as Brooks
testified, that other moving machine parts were guarded as required (Tr. 196) and notes there is

36 FMSHRC Page 2774

no evidence that the company habitually failed to comply. Nonetheless, the lack of a guard was
visually obvious. Had the company exercised the care required by the circumstances, a guard
would have been in place.
CITATION NO.
8566011

DATE
3/20/2012

30 C.F.R. §
56.15004

The citation states:
This violation occurred on 3/12/2012. At
least 2 [m]iners were reported to have been
seen working around and inside the . . .
crusher where there was dirt and airborne
dust and possible metal fragments that could
be knocked loose and present a hazard to the
face and eyes. They were hard-face welding
and replacing worn metal plates at the time.
Safety glasses or goggles were not being
worn and reportedly not provided on-site.
Were an accident to occur because the
miners were not wearing eye protection
when working in a hazardous location a
serious injury could result.
Gov’t Exh. 13.
Brooks issued the citation for an alleged violation of mandatory safety standard C.F.R.
§56.15004.17 When asked why, Brooks replied, “Nichols told me that he had observed miners
working on [the] impact crusher without wearing safety glasses.” Tr. 202. He further stated,
“[T]hey weren’t wearing eye protection. That’s what the violation is.” Tr. 203. Brooks
emphasized that Nichols told him when he, Nichols, was working at and in the crusher, dirt and
debris were “raining down on him.” Tr. 203. In addition, when the crusher was operating there
was a hazard to unprotected eyes from fly rock and dust. Tr. 204. The dust was especially
prevalent when the crusher was started, something that Brooks also observed at other crusher
installations. Id. Nichols described the dust as “very bad,” and he told Brooks that other miners
commented about the problem. Tr. 205. Brooks stated that he too believed that the dust was
excessive, that during his inspections of the site Brooks had seen thick, airborne dust “numerous
times.” Tr. 206.
17

30 C.F.R. §56.15004 states:
All persons shall wear safety glasses, goggles,
or face shields or other suitable protective
devices when in or around an area of a mine
or plant where a hazard exists which could
cause injury to unprotected eyes.

36 FMSHRC Page 2775

Given the hazards presented by the dust and the other things in the air, Nichols concluded
that miners who did not wear safety glasses subjected their eyes to injury from foreign objects.
Tr. 204. As for himself, Nichols testified that he “wouldn’t think of working around a place like
that without safety glasses.” Tr. 206. Brooks stated that earlier he had seen miners who were not
wearing eye protection at the site and that this bolstered his belief that Nichols was telling the
truth. Id. He also noted that he had seen Gibson at the site without eye protection. Tr. 209.
In Brooks’ opinion, the lack of eye protection was likely to lead to a disabling eye injury.
Tr. 207. Brooks also found that the failure to wear eye protection was “fairly obvious” and that
the company was moderately negligent in allowing the condition to exist. Id. In his
contemporaneous notes, Brooks wrote that a miner said that he asked Gibson for safety glasses
and that Gibson did not respond. Tr. 208, Gov’t Exh. 4 at 11.
THE VIOLATION, ITS S&S NATURE, ITS GRAVITY,
AND THE COMPANY’S NEGLIGENCE
The court finds the violation existed as charged. It is true that the government’s
allegations are based solely upon what Brooks was told by Nichols – that two miners who were
working in and under the crusher were exposed to airborne dirt and dust particles but did not
wear safety glasses. Tr. 202, 203; Gov’t Exh. 13 at 3. However, in the court’s opinion, Brooks’
testimony of what he saw and experienced at the mine fully corroborates what Nichols reported.
Tr. 204, 206, 209. The court therefore finds that on March 12 two miners were working inside
and around the impactor/crusher, and that the eyes of both miners were subject to injury from
airborne dirt and dust fragments in that neither miner was wearing safety glasses in violation of
section 56.15004.
The violation was both S&S and serious. The Mathies requirements have been met. There
was a violation. The failure to wear safety glasses while working in an environment where the
atmosphere contained airborne dirt and dust particles created a discrete safety hazard, that is the
danger of an eye injury or injures from the particles getting into the miners’ eye or eyes. Given
the prevalence of the airborne particles, especially the dust (see Tr. 204, 205, 206), it was
reasonably likely an eye injury or injuries would occur. Further, a scratched cornea or worse can
cause lost time at work. Such injuries are therefore reasonably serious, and the violation itself
was serious.
The court also agrees with Brooks that the violation was the result of the company’s
moderate negligence. The fact that the miners were not wearing eye protection was obvious. The
lack of compliance by the miners should have been noted and corrected. It is fair to state that the
company did not meet the standard of care required by the circumstances.
CITATION NO.
8566012

DATE
3/20/2012

30 C.F.R. §
56.15002

The citation states:
A violation occurred on 3/12/2012. At least one miner
was reported to be working around and on the crusher/

36 FMSHRC Page 2776

screen plant where the hazard of flying or falling rock
was apparent, without having a hard hat on. The
miner was observed standing on the elevated service
deck next to a screen and adjacent to the rolls crusher.
He was wearing a soft ball-cap type hat. He was also
walking and working around other plant locations
where a similar hazard existed. Were a miner to be
struck on the head when not wearing a hard-hat a
serious injury could result.
Gov’t Exh. 14.18
Brooks testified that he issued the citation because Nichols told him that he, Nichols, and
his co-worker, Dunsing, were working on a platform adjacent to the screen deck of the crusher
and that Dunsing was not wearing a hard hat. Tr. 211-212. Brooks understood from Nichols that
rather than a hard hat, Dunsing was wearing a soft baseball-type cap. Tr. 215. He also understood
that Dunsing worked without a hard hat for “several hours.”Id.
By virtue of being adjacent to the screen deck, Brooks believed that Dunsing was in
danger of being hit in the head by fly rock. Tr. 213. Brooks testified that the rock would have
come out of the crusher or would have been “kicked out” by the crusher’s rollers. Tr. 214. He
further observed that when Dunsing climbed off the platform, he would have been even more
exposed to dangerous fly rock than he was when standing on the platform. Tr. 214.
Because of the size of some of the fly rock (up to three inches in diameter. Tr. 116),
Brooks found that it was reasonably likely Dunsing would have been killed if he were hit on the
head. Tr. 215.; Gov’t Exh. 14. He testified that it was “fairly obvious” Dunsing was working
without a hard hat, and he found that the company was moderately negligent. Tr. 216.
THE VIOLATON
The court finds that the Secretary failed to prove the violation. Obviously, Brooks did not
see Nichols and/or Dunsing working without a hard hat on March 12. Rather, the allegation of a
violation is based solely upon what Nichols told Brooks happened on March 12. Nichols’
motives in reporting the alleged violations were not altruistic, to say the least. Nichols had been
fired, and he was angry at his former employer. Moreover, Nichols did not appear to testify, but
rather, and at the Secretary’s request, offered testimony over the telephone, an arrangement that
made it difficult to judge his credibility. The court therefore concludes that allegations based
solely on events related by Nichols require at least some corroboration, and unlike other alleged

18

30 C.F.R. §56.15002 states:
All persons shall wear suitable hard hats
when in or around a mine or plant where
falling objects may create a hazard.

36 FMSHRC Page 2777

violations based on Nichols’ rendition of events, the Secretary in this instance offered no reliable
corroborating evidence.
The Secretary tried but failed to provide such evidence. Brooks testified that he thought
he remembered that during his inspection, he saw Dunsing working without a hard hat. However,
Gibson then reminded Brooks that Dunsing was fired one week before Brooks arrived at the
mine. Tr. 221. Upon being reminded, Brooks stated that he “guessed” he had not seen Dunsing
working without a hard hat. Tr. 221.
Brooks also testified that when he spoke with Dunsing on the telephone, Dunsing told
Brooks he did not want to “cooperate” with Brooks. Tr. 222. Dunsing said that Brooks was being
“used by an employee who got fired because he didn’t know how to do his job correctly.” Tr.
223. Whether or not the statement is true, Dunsing’s response highlights why it was necessary
for the Secretary to corroborate Nichols’ allegations.
CITATION NO.
8566017

DATE
3/21/2012

30 C.F.R. §
56.14107(a)

The citation states:
On the Pioneer 40x48 portable rolls/screen plant,
[t]he tail-pulley for the conveyor was not guarded
on the west side. Miners work in the area when
the plant is being run, however the pulley is
partially guarded by its position behind the
frame and no miners work close by. Were a
miner to contact the moving parts through
the triangular 20-inch by 24-inch opening a
serious injury could result.
Gov’t Exh. 16.
Brooks testified that he issued the citation because the company failed to guard a moving
pulley at the front of the mine’s rolls crusher. Tr. 228; see Gov’t Exh. 16 at 4. Brooks explained
that nothing was in place to prevent a miner from contacting the moving part.19 Tr. 228. Brooks
feared that a miner could inadvertently touch the pulley, become entangled in it, and be
permanently disabled (“[A]t the least it would probably tear your arm off.” Tr. 230) or be killed.
Tr. 229, 230. However, he also believed that an injury or a fatality was “unlikely,” because, as he
testified, “nobody generally works around” the area. Tr. 230. The only real exposure to the
hazard came when the pulley’s bearings had to be greased (Id.), and while there was some
evidence that miners greased the pulley when the crusher was running, Brooks noted that
19

The pulley is clearly visible in Government Exhibit 16 at 4. Brooks drew a box in blue
around the unguarded area. Gov’t Exh. 16 at 4; Tr. 229; see also Gov’t Exh. 12 at 5 (area circled
in red); Tr. 229-230.

36 FMSHRC Page 2778

Nichols did not report that miners had to continuously grease it.20 Tr. 230-232. In addition to
inadvertently extending a hand into the pulley’s pinch point, it was possible, according to
Brooks, for a miner to trip on the rocks at the base of the crusher and fall into the pinch point. Tr.
231.
Brooks found that the lack of a guard was due to the company’s moderate negligence.
Gov’t Exh. 16; Tr. 233. The unguarded area was visually obvious. Tr. 233. He also speculated
that holes in the frame of the crusher below the unguarded area were an indication that a guard
had once been affixed to the frame. Id. On cross examination, Gibson asked Brooks why an
MSHA inspector who was at the mine the previous week did not cite Ronald for the violation.
Brooks replied, “I don’t know, you’ll have to ask him.” Tr. 234; see also Tr. 239.
THE VIOLATION, ITS GRAVITY,
AND THE COMPANY’S NEGLIGENCE
The court finds that the violation existed as charged. The cited pulley was a moving
machine part. The pulley could have been contacted rather easily in that, as Brooks testified,
there was nothing to block access to it. Tr. 228; see Gov’t Exh. 16 at 4 (area within hand drawn
blue box). Moreover, the evidence establishes that miners at least occasionally had to work in the
vicinity of the opening and grease the pulley. Tr. 230-232. While the remote fitting meant that a
miner greasing the pulley was unlikely to contact the moving pulley while greasing it, the miner
could, as Brooks feared, trip or slip on rocks at the base of the crusher and fall forward toward
the pulley in such a way that the miner’s hand, arm, and/or clothing would have been caught. Tr.
231. The pulley should have been guarded.
Brooks thought that the unguarded pulley was unlikely to cause a disabling injury (Gov’t
Exh. 16), and the court agrees. The very limited exposure of miners to the hazard supports
Brooks’ opinion. Because of the limited exposure, the court finds that this was not a serious
violation.
The court further finds that the company’s negligence in allowing the violation was low.
Brooks noted that the lack of a guard was visually obvious. Tr. 333. However, the remote grease
fitting to some extent disguised the fact that a potential hazard lurked beyond the fitting, which
may be why an MSHA inspector who visited the mine prior to Brooks may not have issued a
citation for the lack of a guard.21 Tr. 234, 239. Taken in its totality, the evidence suggests that the
violative condition was easy to miss.

20

The extent of even this limited exposure was put into question when Brooks agreed
with Gibson that there was a remote grease fitting for the pulley. Tr. 239. Brooks maintained,
however, that some exposure remained because the fitting was “not remoted very far.” Id.
21

On the other hand, the “inspection” to which Gibson referred may have been Nelson’s
compliance assistance visit, a courtesy visit during which citations were not issued. The matter
was not clarified, and it is impossible to know.

36 FMSHRC Page 2779

CITATION NO.
8566018

DATE
3/21/2012

30 C.F.R. §
56.14107(a)

The citation states:
On the Pioneer 40 x 48 portable rolls/screen plant,
the drive belts and sheaves on the east side were
not adequately guarded. While the front and
side was substantially guarded, a miner could
easily reach behind the guard and contact the
moving parts through the 16-inch by 16-inch
open area. Miners work around the plant but
not close to the hazard. Were a person to
come in contact with the moving parts a
serious injury could result.
Gov’t Exh. 17.
Brooks testified that although there was a guard for the moving parts on the crusher’s
drive motor, the guard was not high enough to prevent someone from reaching over it and
ensnaring his or her arm in the turning shims and v-belts. Tr. 241; Gov’t Exh 17 at 4 (area circled
in blue); Tr. 244; Gov’t Exh. 14 at 4 (upper area circled in red). As stated on the citation, the
unguarded area measured approximately 16 inches by 16 inches. Id. According to Brooks, a
person could slip or trip and fall into the moving parts. Or, a person could accidentally reach
over the insufficient guard and not be aware moving parts were located in the area into which he
or she reached. Tr. 242.
However, Brooks also agreed that there was limited access to the area because miners
only occasionally worked in the vicinity of the drive belts and sheaves on the east side of the
crusher. When they did, they were usually doing maintenance or, cleanup work, greasing the
shaft bearing, or checking the belts.22 Tr. 242, 245. If such an accident occurred, Brooks thought
that the likely result would be a permanently disabling injury, in that the miner would lose a
finger, a hand, or an arm. Tr. 243, 246. As Brooks recalled, the unguarded area was “less than
shoulder height.” Tr. 248.
In Brooks’ opinion, the company should have known about the cited condition. Tr. 250.
Moreover, Nelson testified that during his compliance assistance visit, he advised Gibson that
drive belts and sheaves needed to be guarded, and his testimony was not refuted. Tr. 267.

22

Brooks later agreed that access might be even more limited than he originally
envisioned because it was possible the grease tube for the shaft bearing was “remoted out.” Tr.
249. He was not sure. Id.

36 FMSHRC Page 2780

THE VIOLATION, ITS GRAVITY,
AND THE COMPANY’S NEGLIGENCE
The court finds that the violation existed as charged. The testimony of Brooks establishes
that the cited pulley sheave and the belts on the east side of the crusher were not adequately
guarded. Tr. 241. No evidence was offered countering Brooks’ testimony to this effect, and the
court finds that the existing guard did not prevent a miner from inadvertently reaching an arm or
hand over the guard and into the moving pulley and belts. The court notes that an opening
approximately 16 inches square is more than enough space for a miner to insert his or her hand
or arm. See Gov’t Exh. 16 at 4. Moreover, the opening was not so high as to prevent contact by
location. Tr. 248. Further, the testimony establishes that miners occasionally accessed the cited
area when they were engaged in maintenance, checking the belts, or greasing the bearings. Tr.
242, 245. These miners were subjected to the hazard of being caught in the moving parts.
However, the court also concludes that exposure was so limited, the violation was not
serious. The chance of an injury causing accident actually occurring was exceedingly low
because miners only occasionally were in the area and because Brooks admitted that he was not
sure that one of the activities he feared would subject miners to contact with the moving parts –
greasing the bearings of the pulley – was more than minimally hazardous. See n. 23 infra.
Finally, the court agrees with Brooks that the violation was due to Ronald’s moderate
negligence. Gov’t Exh. 17; Tr. 250 The lack of a guard was visually obvious. Moreover, because
of Nelson’s warning, the company was on notice a guard was required. Tr. 267. Had Ronald’s
management exercised the care required by the circumstances, a guard would have been
installed.
CITATION NO.
8566019

DATE
3/21/2012

30 C.F.R. §
50.30(a)

The citation states:
The operator failed to submit the required 7000-2
Quarterly Report form within 15 days following
the end of the quarter. The 3rd quarter of 2011
ended on September 30 and the Quarterly
Report due on October 15th was not submitted
until October 24, 2011. This is a paperwork
violation only.
Gov’t Exh. 18.
On March 21, 2012, Brooks cited Ronald for a violation of 30 C.F.R. § 50.30(a), a
standard requiring each operator of a mine in which a miner works to submit a quarterly
employment report.23 The citation states that the company failed to submit the required form
23

30 C.F.R. §50.30(a) states:
Each operator of a mine in which an individual
(continued…)
36 FMSHRC Page 2781

within 15 calendar days of the end of the third quarter of 2011. Gov’t Exh. 18. The citation goes
on to state that it is “a paperwork violation only.” Id. When issuing the citation, Brooks found
that there was no likelihood the failure to submit the form would result in an injury. Id. He also
found that the failure was the result of the company’s low negligence. Id.
Gibson stated that he “agreed” with the citation, but he noted that although the
information was reported late, it was only “nine days late.” Tr. 251.
THE VIOLATION, ITS GRAVITY,
AND THE COMPANY’S NEGLIGENCE
After Gibson stated that he agreed with the citation and offered no testimony or other
evidence to counter the inspector’s gravity and negligence findings, the court found on the record
that the violation occurred as charged and that the gravity and negligence of the operator were as
described by Brooks. Tr., 251-252. The court affirms these findings.
OTHER CIVIL PENALTY CRITERIA
The court has found violations and it must assess civil penalties taking into account the
statutory civil penalty criteria. 30 U.S.C. § 820(i).
HISTORY OF PREVIOUS VIOLATIONS
The Secretary introduced an assessed violation history report that shows in the two years
prior to March 16, 2012, two violations were assessed and paid by Ronald. Tr. 120; Gov’t Exh.
1. This is a very small history of previous violations.
SIZE OF THE BUSINESS
Although the parties did not reach a stipulation with regard to the size of Ronald’s
business, and although the company offered no evidence about its size, the court notes that when
proposing penalties, the Secretary assigned no penalty points to Ronald due to its size. Petition
for Assessment of Civil Penalty, Exh. A. Therefore, based on Exhibit A, the court concludes that
Ronald is very small.
ABILITY TO CONTINUE IN BUSINESS
There is confusion in the record regarding this criterion. When asked by the court
whether the company agreed that the total of the penalties proposed by the Secretary ($1,553.00)
would not impact the company’s ability to continue in business, Gibson answered that “it would
23

(…continued)

worked during any day of a calendar quarter shall
complete a MSHA Form 7000-2 . . . and submit
the original to the MSHA Office of Injury and
Employment Information, . . . within 15 calendar
days after the end of each calendar quarter.

36 FMSHRC Page 2782

impact it, yes,” and the court responded, “I’ll accept that . . . as a stipulation.” Tr. 17. However,
the Secretary never agreed that the proposed penalties would have an impact on the business, and
the court wonders if there is a mistake in the transcript and that Gibson actually stated, “it would
not impact it,” an answer that seems possible given the court’s response.
In any event, as the court explained at the beginning of the hearing, the company bears
the burden of proof on the issue, and Ronald presented no evidence. Tr. 12. Therefore, the court
finds that total penalties of up to $1,553.00 will not affect the company’s ability to continue in
business.
GOOD FAITH ABATEMENT
At the hearing, counsel for the Secretary agreed that Ronald had exhibited good faith in
abating the alleged violations, and the court so finds.
ASSESSMENT OF PENALTIES
CITATION NO. DATE
8566007
3/16/12

30 C.F.R. § PROPOSED PENALTY ASSESSED PENALTY
56.12016
$100
$200

The court has found that the violation was very serious although an accident was unlikely
and that the violation was due to the company’s moderate negligence. Given these findings and
the civil penalty criteria discussed above, the court finds that a penalty of $200 is appropriate.
The court has departed from the proposed penalty because of its belief the injury or death that
would most likely result if the equipment was started outweighs the fact that it was unlikely the
equipment would be started while a miner was working around it.
CITATION NO. DATE
8566008
3/16/12

30 C.F.R. § PROPOSED PENALTY ASSESSED PENALTY
56.20008(a)
$100
$100

The court has found that the violation was not serious, that an injury causing accident was
unlikely to occur because of the violation, and that the violation was caused by the operator’s
moderate negligence. Given these findings and the civil penalty criteria discussed above, the
court finds that a penalty of $100 is appropriate.
CITATION NO. DATE
8566009
3/16/12

30 C.F.R. § PROPOSED PENALTY ASSESSED PENALTY
56.15002
$100
$200

The court has found that the violation was serious and that the company’s negligence was
high. Given these findings and the civil penalty criteria discussed above, the court finds that a
civil penalty of $200 is appropriate. The court has departed from the proposed penalty because of
its belief that the company, as represented by Gibson, utterly failed to meet the standard of care
required of it.

36 FMSHRC Page 2783

CITATION NO. DATE 30 C.F.R. § PROPOSED PENALTY ASSESSED PENALTY
8566013
3/20/12 46.6(a)
$243
$100
The court has found that the violation was not serious and that the company’s negligence
was low. Given these findings and the civil penalty criteria discussed above, the court finds that a
civil penalty of $100 is appropriate. The court has departed from the proposed penalty because of
its finding that the violation was less serious than alleged by the Secretary and because the
company also was significantly less negligent than the government alleged.
CITATION NO. DATE
8566010
3/20/12

30 C.F.R. § PROPOSED PENALTY ASSESSED PENALTY
56.12016
$243
$275

The court has found that the violation was very serious and that the company’s
negligence was high. Given these findings, the court finds that a civil penalty of $275 is
appropriate. The court has departed from the proposed penalty because it finds the company’s
level of negligence to be higher than did the inspector.
CITATION NO. DATE
8566015
3/20/12

30 C.F.R. § PROPOSED PENALTY ASSESSED PENALTY
56.14107(a)
$108
$108

The court has found that the violation was serious and that the company’s negligence was
moderate. Given these findings and the civil penalty criteria discussed above, the court finds that
a civil penalty of $108 is appropriate.
CITATION NO. DATE
8566011
3/20/12

30 C.F.R. § PROPOSED PENALTY ASSESSED PENALTY
56.15004
$108
$108

The court has found that the violation was serious and that the company’s negligence was
moderate. Given these findings and the civil penalty criteria discussed above, the court finds that
a civil penalty of $108 is appropriate.
CITATION NO. DATE
8566012
3/20/12

30 C.F.R. § PROPOSED PENALTY ASSESSED PENALTY
56.15002
$108
$0

The court has found that the Secretary did not prove the alleged violation.
CITATION NO. DATE
8566017
3/21/12

30 C.F.R. § PROPOSED PENALTY ASSESSED PENALTY
56.14107(a)
$100
$75

The court has found that the violation was not serious and that the company’s negligence
was low. Given these findings and the civil penalty criteria discussed above, the court finds a
civil penalty of $75 is appropriate. The court has departed from the proposed penalty because it
finds that the company was less negligent than the government alleged.

36 FMSHRC Page 2784

CITATION NO. DATE
8566018
3/21/12

30 C.F.R. § PROPOSED PENALTY ASSESSED PENALTY
56.14107(a)
$100
$100

The court has found that the violation was not serious and that the company’s negligence
was moderate. Given these findings and the civil penalty criteria discussed above, the court finds
that a civil penalty of $100 is appropriate.
CITATION NO. DATE
8566019
3/21/12

30 C.F.R. § PROPOSED PENALTY ASSESSED PENALTY
56.14107(a)
$100
$100

The court has found that the inspector’s gravity and negligence findings are as stated on
the citation. Given these findings and the civil penalty criteria discussed above, the court finds
that a civil penalty of $100 is appropriate.
ORDER
Citation No. 8566012 IS VACATED, and Citation No. 8566013 IS MODIFIED by
deleting the S&S finding. Within 30 days of the date of this decision, the company IS
ORDERED to pay civil penalties that total $1,366 in satisfaction of the violations found
above.24 Upon payment of the penalties, this proceeding IS DISMISSED.

/s/ David F. Barbour
David F. Barbour
Administrative Law Judge

Distribution: (Certified Mail)
Sean J. Allen, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Boulevard,
Suite 216, Denver, Colorado 80204
Louie Gibson, Ronald Sand & Gravel, 1221 S. Thorp Highway, Ellensburg, WA 98926
/db

24

Payment shall 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 2785

ADMINISTRATIVE LAW JUDGE ORDERS

36 FMSHRC Page 2786

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9950 / FAX: 202-434-9949

October 2, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of REGALD ROBBINS,
Complainant,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 2014-594-D
BARB-CD-2014-04

v.
ALDEN RESOURCES, LLC,
Respondent.

Mine ID: 15-17691
Mine: Mine #3

ORDER ON MOTION TO TOLL TEMPORARY REINSTATEMENT ORDER
This case is before me upon an application for temporary reinstatement pursuant to
section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 “(Mine Act”), 30 U.S.C. §
815(c). On July 28, 2014, I granted the Secretary’s Motion for Temporary Reinstatement after a
hearing conducted in Louisville, Kentucky on July 22, 2014.
On September 19, 2014, Respondent filed a Motion to Toll Temporary Reinstatement
Order, informing me that the mine where Complainant is employed is in a temporary shutdown
and that while several personnel remained on the payroll, 44 of the miners, including
Complainant, were informed that they were to be laid off on September 8, 2014.
On September 29, 2014, the Secretary filed a response to Respondent’s motion stating
that the Complainant did not wish to oppose Respondent’s motion.
On October 2, 2014, I held a telephone conference with the parties to hear further
argument on the motion. Mr. Shelton explained that the shutdown related to the recent discovery
that the mine was no longer producing low ash coal, and that the temporary shutdown was
needed to determine whether the mine might yield more low ash coal after further production.
The mine is conducting drilling operations to make an assessment as to the viability of further
production. No decision has been made by Respondent on the likelihood that the mine will return
to the production of low ash coal in the near future. Both Mr. Oppegard and Ms. Gregory
represented that Complainant did not oppose the motion.
As Complainant does not oppose the motion, Respondent’s Motion to Toll Temporary
Reinstatement Order is GRANTED. The tolling is effective September 8, 2014, and shall
remain in effect until future Order of this Court.
In granting the motion, I HEREBY ORDER that Respondent file with me a status report
on the investigation of the future production of the mine and any information related to potential
re-opening of the mine every thirty days commencing on November 1, 2014.

36 FMSHRC Page 2787

If the mine returns to operation at any time, it is HEREBY ORDERED that
Complainant be returned to his position immediately upon the commencement of operations.
Absent good cause, none of the other miners laid off as the result of the above described action
shall take precedence over Complainant upon the return to mining operations at the mine.

/s/ James G. Gilbert
James G. Gilbert
Administrative Law Judge

Distribution: (Electronic email)
Billy Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 N. Eagle Creek Drive, Suite
310, Lexington, KY 40509; billys1@jwtslaw.com
Angele Gregory, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219; pietrangelo.angele@dol.gov
Regald Robbins, 227 Kent Road, Harrogate, TN 37752
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522; tonyoppegard@gmail.com
Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY
41858; wes@appalachianlawcenter.org

36 FMSHRC Page 2788

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

October 9, 2014
WISCONSIN INDUSTRIAL SAND CO.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDING
Docket No. LAKE 2014-0692-M
Citation No. 6556664; 07/31/2014
Mine: Maiden Rock
Mine ID 47-03110

ORDER DENYING MOTION FOR EXPEDITED HEARING
Before:

Judge McCarthy

This case is before me upon a notice of contest under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(d). Section 104(a) Citation No. 6556664 was
issued to Respondent on July 31, 2014 for an alleged violation of 30 C.F.R. § 57.11050(a).
On August 29, 2014, Respondent filed a Notice of Contest and a Motion for Expedited Hearing.
2014. The Secretary filed a Response in Opposition to Respondent’s Motion on October 3,
2014.
On September 29 and October 8, 2014, I held conference calls with the parties. During
the latter conference call, I granted the Secretary’s motion, absent objection from Respondent, to
plead 30 C.F.R. § 57.11050(b) in the alternative.
For the following reasons, I deny the Respondent’s Motion for Expedited Hearing.
The Commission’s Procedural Rule that addresses motions for expedited hearings is
silent about criteria to guide when a motion for expedited hearing should be granted or denied.
See 29 C.F.R. § 2700.52. Accordingly, Commission Administrative Law Judges are allowed
“informed discretion” to determine whether an expedited hearing is necessary, and are directed
to schedule a hearing within a reasonable time. Secretary of Labor (MSHA) v. Wyoming Fuel
Co., 14 FMSHRC 1282 (Aug. 28 1992) (emphasis added). Generally, Commission Judges have
held that an expedited hearing is warranted upon a showing of “extraordinary or unique
circumstances resulting in continuing harm or hardship.” Southwest Portland Cement Co., 16
FMSHRC 2187 (Oct. 4, 1994) (ALJ); Mountain Cement Co., 23 FMSHRC 694 (June 25,
2001)(ALJ); Consolidation Coal Company, 16 FMSHRC 495 (February 1994) (ALJ).

36 FMSHRC Page 2789

Respondent argues that an expedited hearing is appropriate here because abatement is
expensive and/or unnecessary. Respondent miscites Getchell Gold Corp., properly found at 21
FMSHRC 507 (May 1999) (ALJ), in support of this proposition. That case involved a
withdrawal order under Section 104(d)(2). Section 105(d) of the Act requires the Commission to
“take whatever action is necessary to expedite proceedings for hearing appeals of orders issued
under section 104.” 30 U.S.C. § 815(d)(2014). This statutory requirement evinces “a
congressional concern that contests of withdrawal orders be expeditiously heard, at least where
. . . the underlying violation has not been abated.” Southern Ohio Coal Co., 1 FMSHRC 1470,
1472 (Oct. 1979).
In this case, no withdrawal order has issued. Furthermore, the Section 104(a) Citation has
already been abated and no Section 104(b) Order is before me. The mine continues production,
but has stopped developing an exhaust shaft until this matter is resolved.
Respondent also argues that an expedited hearing is proper because there is a strong
possibility that MSHA abused its discretion. Respondent relies on Mountain Cement, 23
FMSHRC 694 (ALJ). In Mountain Cement, the judge was concerned that MSHA abused its
discretion because 20 violations were issued as 104(d)(2) orders, and most were subsequently
modified during conference to 104(a) citations. Here, a single 104(a) Citation is at issue because
the parties posit conflicting interpretations of MSHA’s standard. The operator’s disagreement
with MSHA’s regulatory interpretation does not rise to the level of an extraordinary or unique
circumstance under the facts presented.
In sum, Respondent has not presented any extraordinary or unique circumstances that
warrant an expedited hearing.
Per my October 8 conference call with the parties, a Notice of Hearing will issue under
separate cover setting this matter for hearing at 1 p.m. CST in Minneapolis, Minnesota on
November 24, 2014 and continuing dates thereafter until completed.
Respondent’s Motion for any further expedited hearing is DENIED.

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge
Distribution:
Barbara Villalobos, Esq. U.S. Department of Labor, Office of the Solicitor, 230 South Dearborn
Street, 8th Floor, Chicago, IL 60604
Joshua Schultz, Esq., Office of Adele Abrams, 4740 Corridor Place, Suite D, Beltsville, MD
20705
/med

36 FMSHRC Page 2790

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

October 20, 2014
AUSTIN POWDER COMPANY,
Contestant
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
AUSTIN POWDER COMPANY,
Respondent

CONTEST PROCEEDING
Docket No. PENN 2012-116-R
Citation No. 7040091;01/20/2012
River Hill Coal Co., Inc.
Mine ID 36-00884 A2708

CIVIL PENALTY PROCEEDING
Docket No. PENN 2012-172
A.C. No. 36-00884-281523 E24
Mine: River Hill Coal Co., Inc.
Docket No. PENN 2012-77
A.C. No. 36-09312-273298
Mine: Allegheny Strips
Docket No. CENT 2013-213
A.C. No. 23-02262-309819
Mine: Hume #1
Docket No. KENT 2013-274
A.C. No. 15-19451-307263 E24
Mine: S-9 Findlay Branch
Docket No. KENT 2012-1030
A.C. No. 15-17834-287578 E24
Mine: F-9 Prater Branch

36 FMSHRC Page 2791

Docket No. SE 2012-128
A.C. No. 01-03375-273206
Mine: Johnson Mine
Docket No. VA 2012-542
A.C. No. 44-07133-293119
Mine: No. 26 Strip

AMENDED ORDER TO CONSOLIDATE1
Before: Judge Andrews
On August 15, 2014, the Secretary requested that all pending matters alleging violations
of the Federal Mine Safety and Health Act of 1997 (Mine Act) against Austin Powder Company
be consolidated for hearing and decision. The Secretary submits it is necessary to determine
whether Austin Powder Company and its subsidiaries are unitary operators. Respondent objects
to consolidation, arguing that the unitary operator issue must be determined on a case-by-case
basis. However, Respondent previously moved for the above-cited proceedings to be stayed
pending the outcome of PENN 2012-172, thus underscoring the common relationship in the
issues presented in PENN 2012-172 and the other dockets. Indeed, Respondent states in its
motions that “the issues will be identical to those being litigated in PENN 2012-172.”
Pursuant to 29 C.F.R. §2700.12, the undersigned may consolidate dockets for
“proceedings that involve similar issues.” All eight dockets include the issue of whether Austin
Powder Company and its subsidiaries constitute a unitary operator. Therefore, in the interest of
judicial economy, the above captioned dockets are hereby CONSOLIDATED for hearing and
decision. The parties are also hereby ORDERED to report any other Austin Powder Co.
dockets that should also be consolidated due to the similar unitary operator issue.
All of the above-captioned dockets have been assigned to the undersigned. When filing
additional submissions, parties must reference the undersigned and the lead docket, PENN
2012-172.

/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge
1

A.C. No. 36-00884-281532 has been amended to A.C. No. 36-00884-281523. A.C. No.
36-0932-373298 has been amended to A.C. No. 36-09312-273298. Docket No. KENT 2012-274
has been amended to Docket No. KENT 2013-274.

36 FMSHRC Page 2792

Distribution: (U.S. First Class Mail)
Stephen Turrow, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor, Arlington, VA 22209
Anthony M. Berry, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue
North, Suite 420, Nashville, TN 37219
Kimberly M. Engel, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106
Elizabeth L. Friary, Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue North,
Suite 420, Nashville, TN 37219
Virginia E. Fritchey, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin St.,
Suite 501, Dallas, TX 75202
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Dominique Gutierrez, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue
North, Suite 420, Nashville, TN 37219
C. Renita Hollins, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue North,
Suite 420, Nashville, TN 37219
Carol Liang, Office of the Solicitor, U.S. Department of Labor, Cesar E. Chavez Memorial
Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80204
Jennifer Y. Pao, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite
630E, 170 S. Independence Mall West, Philadelphia, PA 19106
David A. Steffey, CLR, MSHA, U.S. Department of Labor, P.O. Box 560, Norton, VA 24273
Adele L. Abrams, Esq., CMSP, Law Office of Adele Abrams, P.C., 4740 Corridor Place, Suite
D, Beltsville, MD 20705
David J. Hardy, Esq., Hardy Pence, PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548,
Charleston, WV 25329
James (Jim) P. McHugh, Hardy Pence, PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548,
Charleston, WV 25329
Christopher D. Pence, Esq., Hardy Pence, PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548,
Charleston, WV 25329

36 FMSHRC Page 2793

Eric L. Silkwood, Esq., Hardy Pence, PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548,
Charleston, WV 25329
Wm. Scott Wickline, Esq., Hardy Pence, PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548,
Charleston, WV 25329
/nsc

36 FMSHRC Page 2794

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

October 24, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. YORK 2013-217-M
A.C. No. 30-03156-329374

v.
KANAVAL’S EXCAVATING &
GRAVEL,
Respondent

Mine: Kanaval’s Excavating & Gravel

ORDER GRANTING SECRETARY’S MOTION FOR SUMMARY DECISION
This case is before me upon a petition for assessment of a civil penalty filed by the
Secretary of Labor (“Secretary”) against Kanaval’s Excavating & Gravel (“Kanaval’s” or
“Respondent”) on September 18, 2013, pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815. Respondent timely filed its Answer
contesting the $100.00 proposed penalty, and Chief Administrative Law Judge Robert J. Lesnick
assigned Docket No. YORK 2013-217-M to me on December 2, 2013.
I. STATEMENT OF THE CASE
Citation No. 8713473, the sole violation at issue in this case, charges Respondent with a
violation of 30 C.F.R. § 50.30(a) for failing to file a report on the mine’s employment activity
within the amount of time required by the regulation.1 On July 30, 2014, I issued an order
granting the Secretary’s request for a stay of the parties’ responses to my Prehearing Order until
Friday, August 22, 2014, so the Solicitor of Labor could file a motion for summary decision in
the matter. Thereafter, on August 4, 2014, the Secretary filed his Motion for Summary Decision,
wherein he requests that I affirm the citation but reduce the negligence finding to “low” and
assess the Secretary’s proposed penalty.2 (Sec’y Mot. at 1–2; Sec’y Mem. at 3.) I subsequently
lifted the stay on August 22. Respondent did not file a response to the Secretary’s Motion.
1

Section 50.30(a) provides, in relevant part: “[e]ach operator of a mine in which an
individual worked during any day of a calendar quarter shall complete a MSHA Form 7000-2 in
accordance with the instructions and criteria in §50.30-1 and submit the original to [MSHA]
within 15 days after the end of each calendar quarter.”
2

For the purposes of this decision, references to the Secretary of Labor's Motion for
Summary Decision, Memorandum of Law in Support of the Secretary’s Motion for Summary
Decision, and the exhibits attached thereto are abbreviated as “Sec’y Mot.,” “Sec’y Mem.,” and
“Sec’y Mem., Ex. #,” respectively.

36 FMSHRC Page 2795

II. ISSUES
The Secretary asserts that Respondent was properly cited for a violation of section
50.30(a) but that the negligence determination should be reduced to “low.” (Sec’y Mot. at 1–2;
Sec’y Mem. at 3.) The Secretary further asserts that there are no material facts in dispute. (Sec’y
Mot. at 1–2.) Respondent, on the other hand, contends that the citation should be nullified.
(Resp’t Answer at 1.)
The issues before me are as follows: (1) whether the Secretary is entitled to summary
decision because the record establishes the elements of a violation of 30 C.F.R. § 50.30(a), as
well as the Secretary’s allegations regarding the level of gravity and negligence; and, (2) whether
the Secretary’s proposed penalty is appropriate. For the reasons that follow, the Secretary’s
motion for summary decision is GRANTED.
III. FINDINGS OF FACT
Kanaval’s Excavating & Gravel was a surface mine producing sand and gravel in
Cohocton, New York. (Sec’y Mem., Ex. 1.) Subsequent to the inspection in this matter, the mine
permanently closed in January 2014. See Mine Safety & Health Admin., Mine Data Retrieval
System, http://www.msha.gov/drs/drshome.htm (last visited October 23, 2014). Prior to that, the
mine operated sporadically for several years, closing for several months at a time. (Sec’y Mem.,
Ex. 3.) During the fourth quarter of 2012, an average of one person worked a total of seventy-six
hours at the mine. (Id.) Kanaval’s closed for the winter season on November 4, 2012, opening
again only on April 16, 2013. (Resp’t Answer at 1.)
On June 19, 2013, MSHA Inspector Michael Carey conducted an inspection of Kanaval’s
mine. (Sec’y Mem., Ex. 2.) During his inspection, Carey reviewed the mine’s MSHA Form
7000-2—Quarterly Employment and Coal Production Reports. (Id.) Carey noted that Respondent
submitted its Quarterly Employment Report on January 29, 2013. (Id.) Carey subsequently
issued Citation No. 8713473, alleging a violation of 30 C.F.R. § 50.30(a), which reads as
follows:
An MSHA #7000-2 (Quarterly Employment Report) for the 4th
Quarter of 2012 (October, November, December) was not
completed nor submitted to MSHA’s Health and Safety Analysis
Center prior to January 15, 2013. The form was submitted on
January 29, 2013.
(Sec’y Mem., Ex. A.) Carey determined that there was no likelihood this paperwork violation
would cause injury or illness to any workers. (Id.) Carey designated Kanaval’s negligence as
moderate because the company had experience filing the quarterly employment reports. (Sec’y
Mem., Ex. 2.)

36 FMSHRC Page 2796

IV. PRINCIPLES OF LAW—ANALYSIS—CONCLUSIONS OF LAW
A.

Principles of Law
1.

Summary Decision

Commission Rule 67(b) provides that “[a] motion for summary decision shall be granted
only if the entire record, including pleadings, depositions, answers to interrogatories, admissions,
and affidavits, shows: (1) That there is no genuine issue as to any material fact; and (2) That the
moving party is entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b). The
Commission has consistently recognized that summary decision is an “extraordinary procedure,”
analogizing Commission Rule 67 to Rule 56 of the Federal Rules of Civil Procedure. Lakeview
Rock Prods., Inc., 33 FMSHRC 2985, 2987 (Dec. 2011) (citations omitted). The Supreme Court
has determined that summary judgment is appropriate “upon proper showings of the lack of a
genuine, triable issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
2.

Section 50.30(a)

Section 50.30(a) requires that a mine operator (1) submit a Quarterly Employment Report
(2) within fifteen days of the end of a calendar quarter (3) for any quarter in which an individual
worked in the mine.
B.

Analysis and Conclusions of Law
1. Summary Decision is Appropriate

Here, there is no genuine dispute over the facts of the violation. Respondent, who is
pro se, declined to respond to the Secretary’s Motion for Summary Decision despite my office’s
repeated efforts to elicit a response.3 Nevertheless, Respondent in his Answer does not challenge
the Secretary’s assertions that the mine operated during the fourth quarter of 2012 and that
Kanaval’s filed its quarterly report two weeks late. Indeed, Respondent admits that the mine
operated until November 4, 2012, more than a month into the fourth quarter of the year. (Resp’t
Answer at 1.) Therefore, I conclude that summary decision is appropriate in this case.
2. Citation No. 8713473
The facts of this paperwork violation are uncontroverted. During the fourth quarter of
2012, one person worked seventy-two hours at Kanaval’s Excavating & Gravel. The fourth
3

At my request, Law Clerk Carter Tellinghuisen set up a conference call with the parties
in this case to hear Respondent’s defense and explain to Mr. Kanaval the court’s procedures for
responding to a motion for summary decision. When contacted by telephone, Mr. Kanaval
assured Mr. Tellinghuisen he would participate in the August 25 conference call. Nevertheless,
Mr. Kanaval failed to join the call. Mr. Tellinghuisen attempted to contact Mr. Kanaval by
telephone and email during the week of August 25 to schedule another conference call. Yet
Mr. Kanval failed to respond to any of these repeated attempts to contact him.

36 FMSHRC Page 2797

quarter ended December 31, 2012. 30 C.F.R. § 50.30–1(b). Respondent therefore was required to
file a Quarterly Employment Report by January 15, 2013. Kanaval’s instead filed the report on
January 29, 2013, two weeks late, thus fulfilling the elements of a violation of 30 C.F.R.
§ 50.30(a).4 Accordingly, I conclude that Kanaval’s violated section 50.30(a).
Inspector Carey determined in the citation that there was no likelihood that this violation
would cause injury or illness. Indeed, there is no suggestion that Kanaval’s tardy filing posed a
threat to anyone. I conclude that the Secretary appropriately determined that there was no
likelihood that this paperwork violation could cause injury or illness to any miner.
While Inspector Carey decided Kanaval’s tardy filing amounted to moderate negligence,
the Secretary argues in the memorandum in support of his motion that Respondent’s negligence
would more appropriately be judged as “low.” (Sec’y Mem. at 3.) I agree. Indeed, Kanaval’s
mine was closed in January 2013, when the Quarterly Employment Report was due. In addition,
Respondent eventually filed the paperwork on his own without being prompted by MSHA. This
evidence suggests Kanaval’s negligence was low. See 30 C.F.R. § 100.3(d) at Table X
(suggesting “low negligence” where the operator “knew or should have known of the violative
condition or practice, but there are considerable mitigating circumstances.”). In my
determination, the fact that this one-person mine was closed during the period when the report
was due is a considerable mitigating circumstance, especially when the sole proprietor
recognized his oversight and filed the paperwork on his own just two weeks after the deadline.
I therefore conclude that Respondent violated 30 C.F.R. § 50.30(a), that the violation had
no likelihood of causing injury or illness to any miners, and that Respondent’s negligence was
low. Consequently, I determine that the Secretary is entitled to summary decision as a matter of
law.
V. PENALTY
The Secretary proposed a $100.00 civil penalty for this violation, the minimum penalty
under the Secretary’s penalty criteria in his section 100 regulations. 30 C.F.R. § 100.3(g).
Commission Administrative Law Judges are not bound by the Secretary’s penalty criteria but by
the Mine Act and the Commission’s interpretation of the statute. See Mining & Property
Specialists, 33 FMSHRC 2961 (Dec. 2011). 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).
4

Although Respondent does not question the facts in this case, it does challenge the
Secretary’s decision to enforce section 50.30(a) on a single-person mine that was closed at the
time of the violation. (Resp’t Answer at 1.) Respondent further requests that the Secretary review
and rewrite its regulations to be more flexible for such small mines. (Id.) Although I am
sympathetic to Respondent’s position, this is not the forum to request a new rulemaking. See
30 U.S.C. § 811.

36 FMSHRC Page 2798

Although I have determined that Respondent violated section 50.30(a) by filing MSHA
form 7000–2 fourteen days late, the gravity of this violation is negligible. The tardy paperwork
in no way placed any miner in danger. As the Secretary himself has argued, Respondent’s
negligence was low. Indeed, Respondent addressed the oversight before MSHA even noticed the
filing error. Moreover, Respondent had no history of violations of this matter in the two years
prior to Inspector Carey’s visit. (Sec’y Mot. Ex. 4.) Although Kanaval’s eventually abandoned
its operation of the sand and gravel quarry at the start of 2014, Respondent did not argue and
presented no evidence that the Secretary’s penalty would affect the company’s ability to continue
in business. Finally, in considering the appropriateness of the penalty relative to the size of the
operator’s business, I note this mine is an extremely small, one-man operation where work was
performed sporadically throughout the year.
Based on the above, I determine the Secretary’s suggested penalty of $100.00 to be
excessive. Upon my consideration of the six penalty criteria, I assess a penalty of $50.00 as
appropriate for this paperwork violation. I further note that, although the Secretary has
prosecutorial discretion, the fact that he dedicated the Solicitor’s resources toward a case of such
insignificance is disappointing. This case is exactly the type of matter that would likely have
been resolved quickly through one of MSHA’s close-out conferences. We live in a world bound
by a scarcity of time and resources. Resources spent pursuing this matter are thus unavailable for
the pursuit of serious violations that could have a real impact on miner safety and health.
VI. ORDER
In light of the foregoing, it is hereby ORDERED that the Secretary’s Motion for
Summary Decision is GRANTED, and Citation No. 8713473 is MODIFIED by changing the
negligence determination from “moderate” to “low.”
WHEREFORE, Respondent is ORDERED to PAY a penalty of $50.00 within 40 days
of this decision.5

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge
Distribution:
Judith Marblestone, Esq., U.S. Department of Labor, Office of the Regional Solicitor,
201 Varick Street, New York, NY 10014
Michael Kanaval, Administrator, Kanaval’s Excavating & Gravel, 32 ½ North Main Street,
Cohocton, NY 14826
/lct
5

Payment 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 2799