February 2014
TABLE OF CONTENTS
COMMISSION DECISIONS
02-12-2014

BLACK CASTLE MINING COMPANY
and MICHAEL VIRA, employed by
BLACK CASTLE MINING COMPANY

WEVA 2006-891-R

Page 323

COMMISSION ORDERS
02-06-2014

BRODY MINING, LLC

WEVA 2014-82-R

Page 339

ADMINISTRATIVE LAW JUDGE DECISIONS
02-11-2014

UNITED TACONITE, LLC

LAKE 2011-392-RM

Page 343

02-12-2014

MAXXIM REBUILD COMPANY, LLC

KENT 2013-989

Page 378

02-13-2014

WEBSTER COUNTY COAL, LLC

KENT 2012-438

Page 382

02-13-2014

FREEPORT-MCMORAN MORENCI,
INC.

WEST 2013-766-M

Page 405

02-18-2014

MARTIN MARIETTA MATERIALS

CENT 2013-332-M

Page 411

02-18-2014

OAK GROVE RESOURCES, LLC

SE 2012-416

Page 415

02-19-2014

MILLER SPRINGS MATERIAL, L.L.C.

CENT 2012-906-M

Page 418

02-19-2014

NORTHSHORE MINING COMPANY

LAKE 2011-818-M

Page 426

02-19-2014

PAYSON CONCRETE & MATERIALS,
INCORPORATED

WEST 2013-819-M

Page 460

02-21-2014

CONSOLIDATION COAL COMPANY

VA 2011-605

Page 465

02-21-2014

REMINGTON LLC

WEVA 2009-1498

Page 491

02-25-2014

US SILICA COMPANY

WEVA 2013-425

Page 517

02-26-2014

TAFT PRODUCTION COMPANY

WEST 2012-1484-M

Page 522

02-28-2014

BLUE DIAMOND COAL COMPANY

KENT 2008-592

Page 541

02-28-2014

BUECHEL STONE CORPORATION

LAKE 2008-406-M

Page 594

02-28-2014

CONSOLIDATION COAL, CO.

WEVA 2011-940

Page 615

i

Review was granted in the following cases during the month of February 2014:
Secretary of Labor, MSHA v. Jim Walter Resources, Inc. Docket No. SE 2012-681-R (Judge
Gilbert, January 23, 2014)
Secretary of Labor, MSHA v. Kentucky Fuel Corporation, Docket Nos. KENT 2011-1557, KENT
2011-1558, KENT 2013-698. (Judge Miller, January 16, 2014)
Secretary of Labor, MSHA v. The American Coal Company, Docket No. LAKE 2010-408-R.
(Judge Miller, January 16, 2014)

No case was filed in which Review was denied during the month of February 2014.

.

ii

COMMISSION DECISIONS

35 FMSHRC Page 322

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

February 12, 2014
:
:
:
:
Docket Nos. WEVA 2006-891-R
v.
:
WEVA 2007-288
:
WEVA 2007-421
BLACK CASTLE MINING COMPANY and :
MICHAEL VIRA, employed by
:
BLACK CASTLE MINING COMPANY
:

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

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners
DECISION
BY: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners
The Department of Labor’s Mine Safety and Health Administration (“MSHA”) cited
Black Castle Mining Company and proposed penalties against the operator and its supervisor
Michael Vira. The enforcement actions at issue here resulted from MSHA’s investigation into a
fatal accident involving a bulldozer operator whose dozer came into contact with, and ruptured, a
gas line. The citation alleged that Black Castle and Vira failed to adequately comply with the
requirement to examine active working areas each shift for hazardous conditions.1 These
consolidated cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C § 801
et seq. (2012) (“Mine Act” or “Act”).

1

30 C.F.R. § 77.1713(a) provides:
At least once during each working shift, or more often if
necessary for safety, each active working area and each
active surface installation shall be examined by a certified
person designated by the operator to conduct such
examinations for hazardous conditions and any hazardous
conditions noted during such examinations shall be
reported to the operator and shall be corrected by the
operator.

35 FMSHRC Page 323

The administrative law Judge vacated the citation. He assumed the accident occurred in
an active working area. 32 FMSHRC 132, 135 (Jan. 2010) (ALJ). He concluded, however, that:
(1) because the gas line had been present on the mine for at least 10 years, was marked by a right
of way edged by trees, and was well known by everyone at the mine, the gas line did not
constitute a reportable “hazardous condition” under section 77.1713(a), and (2) neither the
fatally injured miner nor anyone else had given Black Castle an indication that the actual
location of the gas line needed to be marked. 32 FMSHRC at 137, 144. The Commission
granted the Secretary’s petition for discretionary review and, for the following reasons, we
affirm the Judge’s decision in result.
I.
Factual and Procedural Background
Black Castle is the operator of a large surface coal mine in West Virginia which contains
a 16-inch-wide and 32-mile-long natural gas pipeline operated by Equitable Resources.
32 FMSHRC at 133, 136; Tr. 78-80. In early 2006, Black Castle began preparations to conduct
additional mining operations at a location known as the East of Stollings Amendment area.
32 FMSHRC at 133. This site has five coal seams and Black Castle intended to mine the
Stockton seam using a method known as contour mining. Tr. 137-38, 315-16. To accomplish
this, Black Castle needed to build an access road from the Judy Low Gap area to the Clarion coal
seam (the seam of coal above the Stockton in elevation), expose the Clarion seam around the
hillside, and create a “drill bench” (a flat area on a hillside) along the Clarion seam. Tr. 131.
From this bench, Black Castle intended to drill holes down to the Stockton coal seam, load the
holes with explosives, and blast material to reach the Stockton coal. Id. at 140.
Black Castle identified Paul Moss, who was classified as a “master dozer operator,” as
the individual to perform this work. Tr. 326, 614. Management officials subsequently met with
Moss to explain the assignment, and during these meetings, the location of the pipeline right of
way was also discussed.
On the morning of January 31, 2006, Moss began constructing the access road uphill
from the Judy Low Gap area in order to locate the Clarion coal seam. 32 FMSHRC at 133. He
had not reached the Clarion seam when he stopped for the day. Id.
The following
morning, February 1, Moss returned to the area to continue construction. Id. Tragically,
sometime after 2:00 p.m. his bulldozer ruptured the gas line, which burst into flames, and Moss
was fatally injured. Id. at 133-34. After conducting an accident investigation, MSHA issued a
citation to Black Castle, alleging that it had violated section 77.1713(a) because, inter alia, “[a]n
active 16-inch diameter gas line was buried and was not adequately marked in the area where
the bulldozer was being operated” and “[t]he presence of the unmarked gas line constituted a
hazardous condition which should have been reported and corrected during the required daily

35 FMSHRC Page 324

inspection.” Gov. Ex. 1. A subsequent special investigation pursuant to section 110(c) of the
Act resulted in Vira being charged personally with a knowing violation of the same standard.2
II.
Disposition
As a threshold matter, we conclude that the mere presence of a well-known gas pipeline
at the mine is not necessarily a hazardous condition that must be regularly noted in the
examination book pursuant to section 77.1713(a). The gas line at this mine had been in place for
at least ten years, and the right of way containing the gas line was generally marked off with
certain identifying features. As the Judge noted, everyone working at the mine knew that there
was a gas line on the East Stollings Amendment area. 32 FMSHRC at 137, 142. Moreover,
MSHA had never previously cited Black Castle for failing to report the presence of the gas line
in an on-shift examination report.
Nonetheless, a hazardous condition may exist when markings fail to sufficiently indicate
a gas line’s location - a situation which the Secretary argues was present here. The regulation
the Secretary alleges Black Castle violated, however, imposes a requirement to examine for and
correct hazardous conditions only as to “each active working area.” Therefore, to prove a
violation of section 77.1713(a), the Secretary must demonstrate that the operator failed to
examine, report or correct a hazardous condition in the “active working area.” See 30 C.F.R.
§ 77.1713(a). In other words, an examiner at this mine seeking to comply with section
77.1713(a) is not required to examine the entire gas pipeline; he or she need only determine
whether the pipeline is adequately marked in the “active working areas.” Such examiner would
be required to confirm that the markings sufficiently informed a miner of his or her location
relative to the gas line. If the markings were not adequate, the examiner would be required to
note that fact, and the operator would be required to take corrective action.

2

Section 110(c) of the Mine Act, 30 U.S.C. § 820(c), provides that:
Whenever a corporate operator violates a mandatory health or
safety standard or knowingly violates or fails or refuses to comply
with any order issued under this Act or any order incorporated in a
final decision issues under this Act, except an order incorporated
in a decision issued under subsection (a) or section 105(c), any
director, officer, or agent of such corporation who knowingly
authorized, ordered, or carried out such violation, failure, or
refusal shall be subject to the same civil penalties, fines, and
imprisonment that may be imposed upon a person under
subsections (a) and (d).

35 FMSHRC Page 325

Although compliance with section 77.1713 is dependent upon an adequate examination
of “the active working area,” that particular term is not defined in either the statute or
regulations. In his post-hearing brief below, the Secretary urged that the term “active working
area” should be read to include all areas where it is reasonably foreseeable that miners will work
or travel when carrying out their work-related tasks. S. Post-Hearing Br. at 29. We also note
that there is a definition of “active workings” at 30 C.F.R. § 77.2(a), which states that the term
“means any place in a coal mine where miners are normally required to work or travel.” For the
reasons set forth below, we conclude that the area in which the accident occurred was not an
active working area under either Section 77.2(a) or the Secretary’s proffered definition.
Assuming arguendo that the gas line did constitute a hazardous condition at the accident
site, one must still determine whether this hazard should have been detected and corrected during
the February 1 examination required by section 77.1713(a).3 An affirmative answer would
require a determination that the accident site was located in “the active working area.” Even
were we to apply the Secretary’s suggested definition of that term, we must ask whether it was
reasonably foreseeable that a miner would be in the accident area when carrying out his or her
work related tasks during the shift(s) covered by the operator’s examination.
The Judge concluded that “Black Castle had no reason to anticipate that Moss would go
above the Clarion seam because it had nothing to do with his work assignment.” 32 FMSHRC at
143. This finding is amply supported by the record.4
The evidence demonstrates that the accident location was not a part of Moss’ assigned
work area and that management and miners alike were surprised that Moss had moved to the
area where he struck the gas line. Id. At the time of the accident, Moss was 265 vertical feet
from his assigned work area. Id. at 142. Moreover, because he could not go straight uphill, he
had actually trammed 500 feet from the Clarion seam. Id., citing Tr. 711, Resp. Ex. 3. In
addition, Jackson Woodward, a dozer operator who was working on a hill opposite from Moss at
the time of the accident, testified that he was surprised to see Moss moving toward the gas line
around 2:30 p.m., because Moss was far away from the place that he was benching. 32
FMSHRC at 143.
Attempting to characterize the accident site as a place that Moss could be expected to
work, the Secretary suggests that Moss might have been removing material such as felled trees

3

Vira performed a preshift examination at approximately 4:30 am on February 1. Tr.
161. He performed a second examination around 8:30 am that morning. Id. The regulation only
required the on-shift examination, but state regulations required a preshift examination, so Vira
conducted both. 32 FMSHRC at 136 n.2.
4

The Judge nevertheless assumed, for purposes of his decision, that the accident location
was part of the “active working area.” 32 FMSHRC at 136. He concluded, however, that the
Secretary failed to prove the existence of a hazardous condition. Id. at 137.

35 FMSHRC Page 326

from above the Clarion seam, possibly believing that such material might have posed a hazard to
miners and equipment during the removal of coal from the Stockton seam. S. Br. at 26. The
Secretary also argues that it would have been an accepted practice for the bulldozer operator to
create access roads to the next higher coal seam. Id. at 26-27.
The Judge rejected these contentions, stating “[t]here is no evidence to support these
theories.” 32 FMSHRC at 142. He relied on production manager William Marcum’s testimony
that in performing the benching area on the Clarion seam, Moss would have had no need to
remove trees far above that seam for safety purposes. 32 FMSHRC at 143, citing Tr. 645-46. In
addition, Michael Boothe, Moss’ immediate supervisor, testified that he did not anticipate that
Moss would go to the area where the accident occurred because he and Moss decided that
constructing an access road was not feasible at that time, and Moss knew that Boothe had no
intention of creating a second access road. Tr. 679-80.
Lastly, the Secretary asserted that the material found pushed up in the blade after the
explosion demonstrates that Moss was pushing material when the accident occurred. S. Br. at
26; S. Post-Hearing Br. at 29. This contention was rebutted by Marcum’s testimony that
bulldozer operators will often drop their blades when preparing to go downhill to control the
speed of the descent. Tr. 644-45.
It, thus, appears that even under the Secretary’s proposed interpretation of the term, the
area in which Moss was working at the time of the accident could not reasonably be considered
an “active working area” of the mine, so as to bring it under the purview of section 77.1713(a).
That being the case, the area was not required to be examined for hazardous conditions as part of
the on-shift inspection of February 1. Even assuming, therefore, that the pipeline was not
sufficiently marked in the area of the accident, as the Secretary alleges, the operator was not
required to detect and correct this condition in accordance with section 77.1713(a).
In maintaining that the gas line was not adequately identified, the Secretary’s case
focused almost exclusively on the lack of identifying markers at the accident site. The Secretary
presented evidence, for example, indicating that the closest carsonite marker was 250 to 300 feet
away from the accident site, and that the orange pin flags were not visible from the accident site.
S. Br. at 20, citing Tr. 85, 413, 730. Although Black Castle explained that it left a row of trees
along the gas line right of way to help identify its location, the Secretary presented photographic
evidence of the accident site showing no trees standing in the immediate area of the accident. S.
Br. at 20, citing Tr. 122. Based on this evidence, one might well conclude that a miner located
where Moss was when the accident occurred would not have been able to ascertain his or her
location relative to the gas line, and this section of the gas line could, therefore, be considered a
hazardous condition. However, as explained above, this evidence does not prove the existence
of a hazard in an active working area.
Despite the Secretary’s emphasis on the presence of hazards near the scene of the
accident, our inquiry does not end there. We have also reviewed the record evidence and the
parties’ arguments regarding hazards in the area where Moss was assigned to work on

35 FMSHRC Page 327

February 1, before he moved to the accident site. This is the relevant inquiry, as it goes to the
question of whether there was a hazardous condition (such as an inadequately marked pipeline)
in the active working area that Vira should have noted when he conducted his examinations that
morning.
The Judge found that the gas line was marked, at a minimum, by a mowed or muddy
right-of-way edged by trees, and that this was one reason why the pipeline was not perceived as
a hazardous condition. 32 FMSHRC at 137. In effect, the Judge made a finding that the gas line
was adequately marked. Although this finding did not pertain specifically to the area where
Moss was working on February 1, before he left for the accident site, it is a finding that we view
as pertaining to the gas line in its entirety on the mine property, and thus, encompasses this area.
The Judge ultimately concluded that the Secretary failed to prove the existence of a hazardous
condition.
The Judge’s factual finding is reviewed under a substantial evidence standard of review.
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.” Consolidation
Coal Co., 35 FMSHRC 2326, 2328 n. 3 (Aug. 2013) (citations omitted). In assessing whether a
finding is supported by substantial evidence, the record as a whole must be considered, including
evidence in the record that “fairly detracts” from the finding. Prairie State Generating Co.,
LLC, 35 FMSHRC 1985, 1991 n.9 (July 2013) (citations omitted).
We conclude that there is substantial evidence in the record to support the Judge’s
finding as it applied to the area where Moss was assigned to work on the morning of February 1
before he went to the accident site. First, William Marcum, the Black Castle production
manager, testified that, as a general matter, such pipelines are marked with yellow stakes and a
clear right of way. 32 FMSHRC at 136; Tr. 624. More specifically, Marcum testified that the
gas line at issue had plastic markers staked in the ground by the gas company, and that some of
those markers were in the area between the Low Gap area and the area where the dozer was
located after the accident. Tr. 627.
Marcum also testified that there was a right-of-way along the pipeline approximately 30
or 40 feet wide with an all-terrain vehicle trail. Tr. 625-26. This is supported by the testimony
of Rejean Boulet, a contractor from East Cumberland hired to cut trees along the pipeline. He
testified that he left a row of trees on each side of it. Tr. 286. Brian Miller, superintendent of
pipelines for Equitable Resources, also testified that there was a right of way with clear
vegetation around the gas line. Tr. 99, 107. Miller testified that the entire pipeline had been
mowed earlier that year and that the vegetation on the right of way was considerably smaller
than any of the wood line on either side. Tr. 107.
In addition to the evidence regarding the presence of markers and a clear right-of-way,
there was testimony regarding whether Moss was aware of the location of the pipeline (which
could be an indication of whether it was adequately marked). Michael Boothe, the Black Castle
drill blast foreman and Moss’ supervisor, testified that on February 1, he spoke with Moss by CB

35 FMSHRC Page 328

radio and later went to see him. Tr. 390, 392-93. Boothe stated that during these conversations,
Moss did not mention the gas line and, in fact, never expressed any fear about the gas line to
Boothe. Tr. 394, 673. The Judge noted that there was nothing to indicate that Boothe was not
credible. 32 FMSHRC at 142.
The Secretary did elicit testimony from witnesses regarding a statement by Moss that he
was not certain where the pipeline was located. While it might be possible to infer from such a
statement that the pipeline was not adequately marked, we conclude that the record in this case
does not suffice as a basis for us to overturn the Judge’s finding to the contrary.
The evidence includes testimony from Kenneth Smith, who stated that as he and Moss
were driving to work on February 1, Moss said he was not sure where the gas line was. Tr. 199200. Smith also testified that he heard Moss talking on the CB radio to Vira around 9:00 a.m.
that day and that Moss stated he was concerned he might be getting too close to the gas line. Tr.
207-09. The Secretary also offered the testimony of Elmer Bishop (an East Cumberland contract
employee clearing trees at the mine). Tr. 291-307. He stated that around 8:00 a.m. on February
1, he heard Moss call Vira and that Moss hollered at Vira and told him he did not know where
the gas line was, or he didn’t have any idea where it was. Tr. 296. However, Vira categorically
denied that Moss had asked him about the location of the gas line. Tr. 768-69. Moreover, the
Judge found that “[t]o the extent that Bishop’s statements cannot be reconciled with the other
witnesses, I find that he is not credible.” 32 FMSHRC at 141.
Finally, Lonnie L. Wood (survey lineman for Black Castle) testified that he was assigned
to mark 400-500 feet of the gas line in the Low Gap area. Tr. 564. He stated that Moss asked
him twice about the location of the gas line in the Low Gap area, although he was no longer
working there. The second conversation took place at approximately 9:00 a.m. on February 1.
Tr. 566-74. The Judge concluded that when Moss talked with the surveyors, “while he
expressed some curiosity about where the gas line went, he did not state any concerns or ask
them to proceed to where he was working and show him where the gas line was.” 32 FMSHRC
at 141.
In his decision, the Judge reviewed and discussed all of this testimony at length. 32
FMSHRC at 137-42. He made credibility determinations, either expressly or implicitly, and
concluded that “[t]here certainly is no evidence that [Moss] said anything to the affect [sic] of ‘I don’t know where the gas line is, how can I stay 100 feet from it?” or, “Have someone mark it
for me,’ or anything like that.” 32 FMSHRC at 141.5
Our inquiry is limited to whether it is reasonable to accept the operator’s evidence (as set
forth above) as sufficient to support the Judge’s conclusion that the gas line was adequately
marked (and that consequently there was not a need to report a lack of markings as hazardous,

5

A Judge’s credibility determinations are entitled to great weight and may not be
overturned lightly. Consolidation Coal Co., 35 FMSHRC at 2329 (citations omitted).

35 FMSHRC Page 329

and that therefore the examinations conducted February 1 were adequate). Even considering the
Secretary’s evidence that arguably “fairly detracts” from this finding, we nonetheless conclude
that there is substantial evidence in the record to support the Judge’s finding.6
We also affirm the Judge’s conclusion that Vira did not violate section 77.1713(a). Id. at
144. As discussed above, substantial evidence supports the Judge’s finding on the adequacy of
the on-shift examination. We therefore conclude that the civil penalty proceeding brought against
Vira under section 110(c) was properly dismissed by the Judge.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman
/s/Michael G. Young
Michael G. Young, Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner
/s/ William I. Althen
William I. Althen, Commissioner

6

Besides a mandatory once a-shift examination, section 77.1713(a) also requires that
inspections be conducted “more often if necessary for safety.” 30 C.F.R. § 77.1713(a).
Therefore, we have carefully considered the Secretary’s argument that the Judge shifted the
responsibility for preventing unsafe conditions from the operator to the miner. After finding that
the on-shift examination was adequate because there was no need to report a hazardous condition
that everyone was aware of and that was adequately marked, the Judge specifically considered
whether Moss put Black Castle on notice of a need for another examination. He considered
Moss’ conversations with Marcum, Boothe, Smith, Vira, and surveyors who were marking the
gas line in the Judy Low Gap area. 32 FMSHRC at 137-44. The Judge determined that “Moss
did not give Vira or Black Castle management any reason to believe that the gas line needed to
be marked better than it was.” Id. at 141. He emphasized that “up until the time of the accident,
neither Moss nor anyone else had given Vira or any other Black Castle person in authority an
indication that marking of the actual gas line was necessary.” Id. at 143. He concluded,
therefore, that management had not been made aware of any reason to conduct an additional
on-shift examination. Id. at 144. That decision is supported by substantial evidence.
The evidence supporting the Judge’s determination that the pipeline was adequately
marked also supports this additional finding. In particular, we note that the only assertion that
Moss’ concerns were expressed to mine management was the testimony regarding Moss’
statements to Vira. This testimony, however, was contradicted by Vira, and the Judge made a
credibility determination that Moss had expressed no such concerns to him. 32 FMSHRC at
141.

35 FMSHRC Page 330

Commissioner Cohen, concurring:
I join my colleagues in result for the reason that as an appellate body, the Commission
must affirm an administrative law judge’s decision if it is supported by substantial evidence. In
this case, I must conclude, albeit reluctantly, that the judge’s findings, based on credibility
determinations, are supported by substantial evidence. I write separately in order to address
several lingering questions, as well as reservations I have about the accounts provided by certain
Black Castle witnesses regarding the events leading up to Paul Moss’ fatal accident.
On February 1, 2006, Paul Moss was fatally injured when the bulldozer he was operating
at Black Castle Mining Company’s surface mine in Boone County, West Virginia, contacted and
ruptured a 16-inch low-pressure, high-volume natural gas line, which burst into flames.
Following an investigation, MSHA found a violation of section 77.1713(a) of the regulations, 30
C.F.R. § 77.1713(a), alleging that “[a]n adequate daily examination for hazardous conditions was
not made of the active working area . . . of the mine.” Gov. Ex. 1. MSHA issued proposed
penalty assessments against Black Castle, and also against its Mine Superintendant Michael Vira
under section 110(c) of the Mine Act. The pivotal questions posed by this case are: (1) whether
the site of the explosion was part of the “active working area”, and (2) whether the gas line was
“adequately marked”. To answer the first question, it is important to know why Moss was so far
from the Clarion seam when the accident occurred.
Active Working Area
The judge determined that the work being performed by Moss and the proximity of the gas
line right-of-way to the access road, at least in the Low Gap area, was sufficient to deem the
accident site part of the active working area. 32 FMSHRC 132, 136 (Jan. 2010) (ALJ). My
colleagues, however, have concluded that because Black Castle had no reason to anticipate that
Moss would travel above the Clarion seam, the accident site was not an “active working area”
under 30 C.F.R. § 77.2 or the Secretary’s proffered definition. Slip op. 4-5. I am not so
convinced.
The explosion that killed Moss occurred some 265 vertical feet away from the outcrop of
the Clarion coal seam where Moss had been assigned to construct a bench. Moss had actually
trammed his dozer 500 feet from the Clarion seam to reach the place where he died. Tr. 710-11,
Resp. Ex. 3. Although Black Castle management testified that Moss had no reason to tram so far
away from the Clarion seam, it appears to me that the distance he traveled was too far to be
inadvertent. There are three possibilities for why Moss was so far from the Clarion seam: 1)
Moss was off on a lark, totally unrelated to his instructions from management; 2) (as the
Secretary contends) Moss traveled above the seam to clear material from the top of the future
highwall

35 FMSHRC Page 331

which would be created when overburden was removed from above the Stockton coal seam,1 or to
carve an access road to another level; or 3) Moss was given direction by a supervisor that caused
him to be up on the ridge near the gas line.
I find the first scenario unlikely. By all accounts, Moss, a master dozer operator, was
highly experienced and safety conscious. Tr. 177-78, 217, 229-30, 294, 377. Production
Manager William Marcum testified that he was probably the best dozer operator at the mine – a
go-to guy and one of Black Castle’s best employees. Tr. 326. Michael Boothe, Moss’ immediate
supervisor, and Michael Vira stated that Moss was probably the most experienced dozer operator
at the mine. Tr. 177-78, 372, 376-77. Kenneth Smith and Jackson Woodard, fellow dozer
operators, testified that Moss was safety conscious and not a risk taker. Tr. 217, 230. He was
also known to follow directions. Tr. 217, 377. Therefore, in light of this overwhelming
testimony, it is reasonable to conclude that reckless behavior – tramming 500 feet from where he
should have been in defiance of his orders – would be out of character for Moss and, therefore,
highly improbable.
The second scenario, however, is plausible, despite the judge’s rejection of this theory as
speculative. 32 FMSHRC at 142-43. According to the Secretary’s theory, which is supported by
Woodard’s undisputed testimony, it is not uncommon for dozer operators during the benching
process to work outside of the coal seam to remove debris from the pathway, material from the
highwall, or to create an access road. Tr. 244-49. Woodard testified that dozer operators are
given wide discretion in the manner in which they complete their assigned tasks. Tr. 249-50.
Thus, it would seem reasonably foreseeable that Moss might work above the Clarion bench as he
deemed necessary, as part of his assignment. This would make the accident site part of the
“active working area.”
The last scenario, that management directed Moss up on the ridge, is also possible. The
judge’s statement that “no one knows why Moss took the bulldozer where he did,” may not
necessarily be accurate. See 32 FMSHRC at 142. The evidence suggests that Moss may well
have been directed to the ridge. Woodard testified that on the morning of the accident, Moss did
not know on what level he was supposed to start benching, so Woodard sent a message to have
Boothe “get with” Moss. Tr. 234. Boothe made a quick stop at Moss’ work site shortly
thereafter, left, then returned just before noon. Tr. 234. Woodard stated that after a 15 minute
meeting with Boothe, Moss made a ramp to a higher level where he began benching until
sometime after 2:00 p.m. Tr. 235. Woodard then looked over and saw Moss coming towards the
gas line, which struck him as “funny” that Moss was so far away from where he had been
benching. Tr. 235-36, 255-56. Woodard, unsuccessfully, tried to call Moss because he wondered
if his orders had been changed. Tr. 236, 255, 262. When questioned by Respondent’s counsel
whether Woodard knew that Moss, being up on the ridge, was beyond his work area, Woodard
answered:
1

The reason Moss was constructing a bench at the Clarion coal seam outcrop was to
enable Black Castle to bring in drilling equipment to blast away the part of the mountain
overlying the Stockton coal seam (i.e., the “overburden”) so as to mine the coal in the Stockton
seam. The blasting away of the overburden would create an 80-foot highwall. Tr. 139-41.

35 FMSHRC Page 332

Well, I did not know that. . . . I knew that he was supposed to be
working up [on the Clarion seam], but I had no idea what
conversation that he and Mike Boothe had. Mike Boothe could
have changed his orders or --- I mean, I didn’t know. That’s the
reason, you know --- I thought it was strange was the reason I
called.
Tr. 262. Clearly, Woodard recognized that Boothe might have given Moss additional instructions
that placed him at the accident site. However, the judge credited Boothe’s account that Moss
made no mention of the gas line during these conversations, and that only Moss’ slow progress
was discussed. Tr. 394, 396-97. Had the judge credited Woodard’s testimony, it would not have
been a leap to have concluded that Boothe, at the very least, instructed Moss on where to bench.
Such a conclusion would also indicate that the two discussed more than Moss’ slow progress.
However, we lack the testimony of Mr. Moss, who could have explained the
circumstances leading to the accident that claimed his life. We also lack conclusive evidence that
might explain why such an experienced dozer operator would apparently stray off course in a
dangerous area of the mine. In view of the judge’s finding that the Secretary’s theory is
“speculative”, and without substantial record evidence to support the two most plausible
scenarios, I am constrained to stand with the majority’s determination that the area in question
was not an active working area and, therefore, that no on-shift examination was required of that
area.
Adequate Markings
I am not persuaded that the gas line beyond the Low Gap area was adequately marked. As
set forth by the majority opinion, a hazardous condition exists when markings fail to sufficiently
indicate a gas line’s location in an “active working area.” Slip op. at 3. Therefore, compliance
with section 77.1713 here required that the on-shift examiner, Vira, determine whether the
pipeline was adequately marked in the “active working area,” and if not, to make a notation and
take corrective action. See Slip op. at 3.
Although the judge found that the gas line was marked, at a minimum, by a mowed or
muddy right-of-way edged by trees, 32 FMSHRC at 137, the Commission majority interpreted it
as a finding that the gas line was “adequately” marked, and concluded that it applied to the entire
gas line on mine property. Slip op. at 6. I not only question the judge’s finding, but the
majority’s application of it to the pipeline.
Photographs of the accident site clearly show an absence of trees in the area where the
dozer was found. Gov. Exs. 4-1, 4-3. They also show the dozer sitting just outside of the rightof-way, which indicates that the gas line did not actually run within the right-of-way at all times,
as generally believed by mine personnel. Id; 32 FMSHRC at 142; Tr. 175. There is also no
evidence that there were markers in the immediate area where the accident occurred. Slip op. at
6; Tr. 180-81; Gov. Ex. 4-3. In fact, the closest carsonite marker was 250 to 300 feet away, and
the orange flags that were placed in the Low Gap area were not visible from the accident site. Tr.

35 FMSHRC Page 333

85, 127, 182-83. In addition, the markers were located on the opposite side of the right-of-way
from where Moss was operating the dozer. Tr. 183, 189; Gov. Exs. 4-28, 4-29. Boothe even
admitted that beyond the Low Gap area, the exact location of the gas line was unknown. Tr. 386.
Perhaps the strongest indication that the markings may have been inadequate comes from
the testimonial evidence that Moss was unclear about the location of the gas line. As we know,
Vira denied that Moss ever expressed concern or asked about the gas line’s location. Tr. 768-69.
He testified that Moss only asked how far to stay away from the gas line, and that he, Vira, told
him to keep a distance of 100 feet.2 Tr. 768. However, according to Smith, Moss told him that he
was not sure of the gas line’s location when they were driving to work together on the day of the
accident. Tr. 199-200. At around 9 a.m. that morning, Smith overheard Moss tell Vira over the
CB radio that he “was concerned he might be getting too close to the gas line.” Tr. 207-09.
Similarly, Elmer Bishop, a foreman for East Cumberland, the contractor hired by Black Castle to
cut and clear trees, testified that Moss called Vira that morning and “hollered at [Vira] and told
him he didn’t know where the gas line was at, or he didn’t have no idea where it was at.” Tr.
291-92, 296. Furthermore, Lonnie Wood, a survey lineman for Black Castle, stated that Moss
asked him twice on the day of the accident about the location of the gas line.3 Tr. 573-74.
Although Vira’s instruction to stay 100 feet away from the gas line was corroborated by
Smith and Woodard, his description of what Moss initially expressed to him (i.e., “how far he
needed to stay away from the gas line”, Tr. 177, 768) was not. See Tr. 209, 234. In fact, Smith’s
and Bishop’s testimony demonstrate that, contrary to Vira’s account, Moss expressed confusion
to Vira as to the location of the gas line. Id. Nonetheless, relying heavily on Vira’s testimony,
the judge found that Moss gave no indication to management that additional markings were

2

The judge found that “if Moss had followed Vira’s guidance and stayed 100 feet from
the right-of way, this unfortunate accident would not have happened.” 32 FMSHRC at 142.
First, I reiterate that Moss was known to follow directions. Second, it was impossible for Moss
to follow this guidance because from the start, his path of operation brought him within 75 feet
of the gas line, a situation which Vira as Mine Superintendent should have known. Tr. 735;
Resp. Ex. 3.
3

The judge concluded that Moss “really did not express concern or ask many questions.”
32 FMSHRC at 142. He diminished Moss’ concerns by characterizing his statement to Smith as
a “remark” rather than “an expression of serious concern,” and his questions to Wood as
expressions of “curiosity.” 32 FMSHRC at 138, 140-42. In light of the record in its entirety, I
see no reason to doubt the seriousness or urgency of Moss’ concern.

35 FMSHRC Page 334

necessary.4 32 FMSHRC at 141. He construed Smith’s testimony as reconcilable with Vira’s,
and discredited the testimony of Bishop. 32 FMSHRC at 141.
Additionally, it does not follow that, because everyone knew the general location of the
gas line, markers identifying its specific location were unnecessary.5 Even though Black Castle
had mined coal within the vicinity of the gas line for years, it was well-known by management
that mining in the East of Stollings Amendment Area, a virgin area of the mine, would bring
miners in closer, more dangerous proximity to the gas line. This posed a hazard that required
Black Castle to implement additional safety measures. At a minimum, the operator was required
to ensure that the entire gas line was clearly marked before allowing miners to work in that area,
especially because heavy equipment was involved. Moreover, ordinary human carelessness
should not be ignored, which is all the more reason to clearly delineate the gas line.6 When a
condition is so hazardous as to likely result in death, identification of that hazard must be
indisputably clear.
As stated by my colleagues, “it might be possible to infer . . . that the pipeline was not
adequately marked.” Slip op. at 7. I think that such an inference makes sense from the evidence
in the record. However, the judge saw it differently.

4

I do not agree that Moss should have done more to notify Black Castle that additional
markers were necessary. See 32 FMSHRC at 141. Even if Moss had said nothing whatsoever, it
was Black Castle’s responsibility to ensure that the gas line was marked in such a way that any
miner working in its immediate vicinity could safely avoid contact with it. As the Commission
has stated, quoting the Congressional declaration in section 2(e) of the Mine Act, “the operators
of . . . mines with the assistance of the miners have the primary responsibility to prevent the
existence of [unsafe and unhealthful] conditions and practices in such mines. 30 U.S.C. §
801(e).” Consolidation Coal Co., 16 FMSHRC 201, 205 (Feb. 1994).
5

On some level management knew this because Marcum made the minimal effort of
surveying the gas line and identifying it with orange flags in the Low Gap area. But even this
was insufficient, because Moss’ path of operation required that he bench the length of the
Clarion seam, which moved beyond the Low Gap and through the greater East of Stollings Area.
As such, Black Castle should have had the gas line surveyed and marked in the entire area, not
just the Low Gap.
6

The Commission interprets mandatory safety standards to take into consideration
“ordinary human carelessness.” Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept.
1984). In Thompson, the Commission held that the guarding standard must be interpreted to
consider whether there is a “reasonable possibility of contact and injury, including contact
stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human
carelessness.” Id. An objective interpretation of such a standard cannot “ignore[] the inherent
vagaries of human behavior. Even a skilled employee may suffer a lapse of attentiveness, either
from fatigue or environmental distractions. . . .” Great Western Electric Co., 5 FMSHRC 840,
842 (May 1983).

35 FMSHRC Page 335

The Test of Substantial Evidence
Under the Mine Act, the Commission must affirm the factual findings of the judge if they
are supported by substantial evidence. Substantial evidence is “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) (citing Consolidation Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). Moreover, the Commission has recognized that a judge’s
credibility determinations are entitled to great weight and may not be overturned lightly. Farmer
v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3
FMSHRC 2767, 2770 (Dec. 1981).
The judge overwhelmingly credited the self-serving testimony of Vira and Boothe – both
management representatives of Black Castle, and, in the case of Vira, the subject of the section
110(c) proceeding which is part of this case. On the contrary, he discredited the testimony of
Bishop, and did not make what would have been reasonable inferences from the testimony of
Smith and Woodard. However, the judge’s credibility determinations and the inferences he drew
were not so unreasonable as to be reversible. The weight of the evidence supporting the
Secretary’s position detracts from the evidence supporting the judge’s factual determinations, but
not to the degree as to render them unsupported by “substantial evidence” within the scope of
Rochester & Pittsburgh Coal. If the judge had made different credibility determinations, we
could just as easily affirm the citations issued to Black Castle and Vira. However, under our
substantial evidence standard of review, I must, with reluctance, stand with my colleagues in
affirming the judge’s decision in result.

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

35 FMSHRC Page 336

Distribution
Carol Ann Marunich, Esq.
Dinsmore & Shohl, LLP
215 Don Knotts Blvd., Suite 310
Morgantown, WV 26501
Robert Stonestreet, Esq.
Dinsmore & Shohl, LLP
P.O. Box 11887
Charleston, WV 25339
Morgantown, WV 26501
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie Garris
Office of Civil Penalty Compliance
MSHA
U.S. Dept. Of Labor
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge T. Todd Hodgdon (retired)
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004

35 FMSHRC Page 337

COMMISSION ORDERS

36 FMSHRC Page 338

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

February 6, 2014
BRODY MINING, LLC
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

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Docket Nos. WEVA 2014-82-R et al.

ORDER
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012). On January 30, 2014, Chief Administrative Law Judge Robert J. Lesnick
issued a Certification of Interlocutory Ruling pursuant to Commission Procedural Rule 76,
29 C.F.R. § 2700.76(a)(1)(i). In his order, the Judge certified for interlocutory review by the
Commission his ruling that the Secretary of Labor’s pattern of violations regulation is valid and
was not applied to Brody Mining, LLC in an impermissibly retroactive manner. Unpublished
Order at 3-4 (Jan. 30, 2014).
Commission Procedural Rule 76(a) provides that interlocutory review is a matter of
sound discretion of the Commission, and that the Commission may grant interlocutory review
upon a determination that the Judge’s interlocutory ruling involves a controlling question of law
and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R.
§ 2700.76(a).
Upon consideration of the Judge’s certification, we hereby grant review of the Judge’s
order of January 30, 2014, with regard to: (1) whether the Secretary’s pattern of violations rule,
30 C.F.R. § 104, promulgated at 78 Fed. Reg. 5056, and effective March 25, 2013, is valid on its
face and as applied in these proceedings; (2) whether the Mine Safety and Health
Administration’s pattern of violations screening criteria are invalid because notice and comment
rulemaking was required; and (3) whether MSHA impermissibly applied the pattern of violations
rule retroactively.

36 FMSHRC Page 339

Brody’s opening brief is due to be filed within 30 days of the date of this order, and
remaining briefs shall be filed in accordance with the Commission’s Procedural Rules, 29 C.F.R
§ 2700.75. In their briefs, the parties should address, among other issues, the question of
whether the Commission has jurisdiction to rule upon the validity of the regulations referenced
above.
The petition for interlocutory review filed by the operator is denied as moot.

/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman

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

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

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

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

36 FMSHRC Page 340

Distribution
R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
Michael T. Cimino, Esq.
Jackson Kelly, PLLC
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
Benjamin M. McFarlane, Esq.
Jackson Kelly, PLLC
1144 Market Street
Wheeling, WV 26003
Robert S. Wilson, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22 Floor West
Arlington, VA 22209-3939
Jason Grover, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2226
Arlington, VA 22209-2296
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20004-1710

36 FMSHRC Page 341

ADMINISTRATIVE LAW JUDGE DECISIONS

36 FMSHRC Page 342

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

February 11, 2014
UNITED TACONITE, LLC
Contestant,
v.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent,
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,
v.
UNITED TACONITE, LLC
Respondent.

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CONTEST PROCEEDINGS
Docket No. LAKE 2011-392-RM
Order No. 6553379; 01/24/2011
Docket No. LAKE 2011-393-RM
Order No. 6553380; 01/24/2011
Mine: United Plant
Mine ID 21-03404
CIVIL PENALTY PROCEEDING
Docket No. LAKE 2012-687-M
A.C. No. 21-03404-289745-01
Docket No. LAKE 2012-841-M
A.C. No. 21-03404-296882
Mine: United Plant

DECISION AND ORDER
Appearances:

James M. Peck, U.S Department of Labor, Office of the Solicitor, Duluth,
MN for the Secretary
Dana Svendsen, Esq., & R. Henry Moore, Esq., Jackson Kelly, PLLC,
Denver, CO and Pittsburgh, PA respectively for Respondent

Before:

Judge Lewis

STATEMENT OF THE CASE
These cases are before the undersigned Administrative Law Judge on Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor against Respondent, United Taconite
(“Respondent” or “United Taconite”), pursuant to Sections 104 and 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §815(d). A hearing was held in Duluth, Minnesota on
August 27, 2013. The parties subsequently submitted post-hearing briefs.

36 FMSHRC Page 343

PROCEDURAL HISTORY
On January 24, 2011, MSHA Inspector Thaddeus J. Sichmeller issued a 107(a) Imminent
Danger Order and a corresponding 104(d)(1) Citation for an alleged safety violation at United
Taconite’s United Plant (“Plant”) in St. Louis County, Minnesota. On April 26, 2011, Inspector
Sichmeller issued a 104(a) citation for another alleged safety violation at the Plant. United
Taconite contested these violations and all three issuances were brought to hearing.
STIPULATIONS
The parties have entered into several stipulations, admitted as Parties Joint Exhibit 1.
Those stipulations include the following:
1.

United Taconite LLC is engaged in mining operations in the United States, and its mining
operations affect interstate commerce

2.

United Taconite LLC is the operator of the United Plant, MSHA I.D. No. 21-03404.
United Taconite LLC is an “operator” as defined in Section 3(d) of the Federal Mine
Safety and Health Act of 1977, as amended (Mine Act), 30 U.S.C. 803(d).

3.

United Taconite LLC is subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. §801 et. seq.

4.

The Administrative Law Judge has jurisdiction in this matter.

5.

The subject citations and orders were properly served by a duly authorized representative
of the Secretary upon an agent of United Taconite LLC on the dates and places stated
therein, and may be admitted into evidence for the purpose of establishing their issuance.

6.

The exhibits to be offered by United Taconite LLC and the Secretary are stipulated to be
authentic but no stipulation is made as to their relevance or the truth of the matters
asserted therein.

7.

The penalties, if affirmed, will not impair United Taconite LLC’s ability to remain in
business.

8.

The Certified Assessed Violation History Report reflecting the history of the violations of
the Respondent is an authentic copy and may be admitted into evidence as a business
record of MSHA.

9.

The operator demonstrated good faith in abating the conditions cited in Citation No.
6559833.

36 FMSHRC Page 344

10. MSHA Inspector Thaddeus J. Sichmeller was acting in his official capacity and as an
authorized representative of the Secretary of Labor when aforesaid citations and order
were issued.
Joint Exhibit 11 (see also Transcript at 6).2
LAKE 2012-687-M
I.

ISSUES

With respect to LAKE 2012-687-M, the issues to be determined are whether
Respondent’s alleged actions on January 24, 2011 constituted an imminent danger as charged in
Order No. 6553379 and whether the violation alleged in the related 104(d)(1) Citation, Citation
No. 6553380, was significant and substantial (“S&S”), whether it was reasonably likely to result
in fatal injury, whether it was the result of high negligence, whether it was an unwarrantable
failure, and the appropriate penalty.
II.

SUMMARY OF TESTIMONY

On January 24, 2011, Inspector Thaddeus J. Sichmeller issued an imminent danger order,
No. 6553379, after observing Mickey Krempich standing on the edge of a structure without
required fall protection.3 (GX-1).
Earlier that day, at 2:00 p.m., Lucas Greschner4 attended a meeting where he learned that
a hydro separator at Respondent’s Plant was overflowing and making a mess. (Tr. 240). The
1

Hereinafter the Joint Exhibits will be referred to as “JX” followed by the number.
Similarly, the Secretary’s Exhibits will be referred as “GX” and Respondent’s Exhibits will be
referred to as “RX.”
2

Hereinafter the transcript will be cited as “Tr.” followed by the page number.

3

At hearing, Inspector Thaddeus J. Sichmeller was present and testified for the Secretary.
(Tr. 16). At that time, Inspector Sichmeller was a metal/non-metal mine inspector and accident
investigator for MSHA and had worked for the administration for over ten years. (Tr. 16-17). In
that capacity he conducted examinations of working areas in up to 65 mines in a year. (Tr. 17).
Sichmeller took classes and had journeyman training at the Mine Academy in Beckley, West
Virginia. (Tr. 17). He also received accident investigation training. (Tr. 17-18). He had an
associate’s degree in applied science from Marshall University. (Tr. 17). Before MSHA,
Sichmeller worked as a millwright at Woodville Mine in Idaho for seven to eight years. (Tr. 18).
4

At hearing, Lucas Greschner was present and testified for Respondent. (Tr. 237). At
the time of the hearing he was a section manager but when the citation was issued he was an
operation supervisor at the crusher and concentrator. (Tr. 237-238). He previously worked at a
U.S. Steel pellet plant. (Tr. 238). He earned a bachelor’s degree in business management and
(continued…)

36 FMSHRC Page 345

hydro separator or concentrator contained a rod mill floor, ball mill, grade floor, basement, and
“Mexico” where the conveyors fed into the building. (Tr. 239). The mills crushed the ore into
powder, turned the powder into slurry, and then sent the slurry to the pellet plant. (Tr. 239-240).
There were seven ball mills. (Tr. 240). There were five concentrator mill lines and they all have
boxes like the one in the cited area. (Tr. 258).
When Greschner went to fix the condition, he met up with an hourly employee,
Krempich. (Tr. 241). He told Krempich that they had to move water between the thickeners.
(Tr. 241). Greschner had never seen it done before, but had seen similar plugs pulled. (Tr. 241,
252, 256). Krempich worked at Respondent for 20-25 years and for 15 years with concentrators.
(Tr. 259).
Krempich went to the hydro separator, where the order was later issued, and Greschner
went to the overflowing one. (Tr. 241-242, 253). Both separators had thickeners with two boxes
and the boxes had chain hoist setups to remove plugs. (Tr. 253-254). Greschner tried to use the
chain but it came off the plug. (Tr. 242). At first he did not know what was wrong; he just could
not lift the plug. (Tr. 254). Greschner inspected the plug to determine if the hook or chain was
broken or if a new chain could be added. (Tr. 242). These chains break or slip off the plug on
occasion. (Tr. 254-255). While he was working he stood on a step stool, or moving staircase,
and reached up because the box was not high off the ground.5 (Tr. 243). Greschner did not wear
fall protection while he was on the step stool. (Tr. 243).
While Greschner was working on that separator, Krempich was working on a different
one. (Tr. 243). Greschner did not know what Krempich was doing, only that he was diverting
water. (Tr. 244). Greschner could not see Krempich from his position on the movable stairs.
(Tr. 244-245). At some point, Greschner went to look for Krempich. (Tr. 244).
At around the same time, Inspector Sichmeller conducted a health and safety inspection
at Respondent’s Plant. (Tr. 147-158). During the inspection, Sichmeller travelled with Safety
Manager Del Savela and Bryan Sandnas looking for structural issues.6 (Tr. 160, 200-201, 212).
4

(…continued)
marketing at the University of Wisconsin at Eau Claire. (Tr. 238-239). Before the
instant citation, Respondent received a citation because Greschner did not receive annual 500023
refresher training when he transferred from Minntac. (Tr. 257). He was trained but did not have
a record. (Tr. 257). Minntac would not give out the information because he quit. (Tr. 257).
5

Instead of climbing on top of the separator, miners commonly used a rolling stairwell.
(Tr. 232, 234). The stairs have railings and a platform with railings. (Tr. 232). A miner could
roll the stairs up to the side of the tank and use the chain jack. (Tr. 232-233).
6

At hearing, Del Savela was present and testified for Respondent. (Tr. 55). At the time
of the hearing, Savela had worked in the mining industry for over 36 years. (Tr. 56). He had
worked for U.S. Steel and Respondent, the latter for over six years. (Tr. 56). At U.S. Steel he
served as a millwright for 15 years and a safety engineer for 15 years. (Tr. 56). Savella passed
(continued…)

36 FMSHRC Page 346

The inspection group embarked from the main office and traveled toward the hydro-separator
tanks. (Tr. 160). It was likely that they traveled together in a single-file line with Sichmeller in
the front and Savela in the rear. (Tr. 216-217).
At around the time that Greschner reached the separator where Krempich was working,
the inspection group entered the corridor where the tanks were located. (Tr. 160-161, 250, 258).
Inspector Sichmeller saw Greschner standing at the base of a set of stairs and looking up. (Tr.
160-161). Inspector Sichmeller did not know what Greschner was looking at. (Tr. 199, 201).
Initially, Sichmeller’s line of sight was blocked by pipe structure, as shown in the photograph
marked GX-6-B. (Tr. 199-200). As he drew closer, Sichmeller followed Greschner’s gaze and
saw Krempich, standing on top of the tank. (Tr. 160-161, 179).
Krempich was standing on the edge of the open-topped hydro separator box, reaching
over a convertor box, and pulling plugs. (Tr. 158-160, 220, 223). Krempich had both feet on
the grate near the edge and one hand on the chain hoist. (Tr. 175, 189, 221). Sichmeller did not
know where the other hand was located because it was too fast. (Tr. 189). Savela believed the
second hand may have been on the chain, but he was not sure because the hoist could be
operated with one hand. (Tr. 220-223, 233). Krempich had three or four “points of contact.”
(Tr. 220). The miner was only wearing his hard hat, safety glasses and safety shoes. (Tr. 160).
Savela did not know why Krempich was not using a movable stairway. (Tr. 234).
Greschner was about 50 yards away from Krempich. (Tr. 162, 170, 179-180). Greschner
was leaning against the railing and looking up at the employee. (Tr. 170, 178-179, 217, 224-225,
229). Sichmeller believed that Greschner could see what was happening on top of the tank from
where he was standing, as depicted in the photograph marked GX-6-H. (Tr. 178-179, 186-187).
However, Savela believed that Greschner would be unable to see Krempich because a structure
was in the way. (Tr. 218, 226). He believed GX-6-H was not taken from the correct location.
(Tr. 226-227). Greschner testified that he could not see Krempich because beams, piping, and a
launderer were in the way, as depicted in the photograph marked RX-38. (Tr. 245-249).
Sichmeller testified that he observed Greschner looking for 20-30 seconds but did not
know how long he was there. (Tr. 170, 199, 202). Savela believed the inspection group and
Greschner had converged on the area at the same time, but was uncertain. (Tr. 225, 230).

6

(…continued)
the U.S. Steel millwright apprenticeship program, had an associate’s degree in human
services, a bachelor’s degree in social work, and a master’s degree in industrial safety. (Tr. 56).
He received his Master’s Degree from the University of Minnesota-Duluth. (Tr. 57). In 2011
Savela was the plant safety manager for Respondent and his duties included advising personnel
on safety policies, procedures, systems, industrial hygiene issues, and fire protection. (Tr. 55-56,
83). He accompanied inspectors and corporate audit teams. (Tr. 56). He had been doing so for
20 years and felt well-versed in policy and procedure. (Tr. 57). At Respondent’s plant, he
accompanied inspectors as a union representative for a few months and then, from September
2007, he did so as a salaried employee. (Tr. 57). During an MSHA inspection, Savela would
coordinate, accompany inspectors, create work orders, and rectify situations. (Tr. 57).

36 FMSHRC Page 347

Greschner testified that he saw Krempich for about five seconds before the inspection crew
arrived and did not know Krempich was on the top of the tank before that time. (Tr. 250, 258).
Sichmeller believed that Krempich’s location posed a high degree of danger. (Tr. 159,
173). He issued an imminent danger order, Order No. 6553379 (GX-1), because Krempich was
not wearing fall protection and was in danger of falling. (Tr. 157-158). The most likely place
for a fall was the diverter box because Krempich was standing on the middle edge of the tank,
reaching the chain hoist. (Tr. 158-159, 162). The inspection crew was about 30-50 feet away
from Krempich when the order was issued. (Tr. 216-218, 250). Sichmeller believed that miner
could have fallen into the diverter box and drowned or fallen onto the metal grating and received
head and body trauma. (Tr. 159). The miner could have fallen into the box or onto the walkway
below.7 If a miner fell into the tank when the plugs were pulled, the suction would pull him to
the bottom. (Tr. 169).
Sichmeller testified that the area may have been wet from splashing. (Tr. 188-189). (Tr.
158). Savela testified that the photographs marked RX-30 to RX-32 showed that the grate was
largely dry. (Tr. 213-214, 227-228). Greschner testified that the grate was dry, but he did not
inspect it because he did not have fall protection. (Tr. 255-256).
In order to issue the imminent danger order, Sichmeller had to wait for Savela to come
up. (Tr. 161, 202). Then he pointed to the condition and told Sandnas and Savela that he was
issuing an imminent danger order. (Tr. 161-162). Savela told Krempich to get down. (Tr. 161162). Sichmeller did not spell out the imminent danger, but Savela immediately realized the
problem. (Tr. 205-206). Sichmeller did not tell the miner to get down because, by law, he could
not direct the work force; he had to issue an order to have something done. (Tr. 204-206).
If Sichmeller had identified Greschner he would have issued the Order to him. (Tr. 207).
Savela did not think there was an imminent danger of falling. (Tr. 222). There was solid
structure above the grating (depicted in the photograph marked RX-32) that could have broken
the fall from the grating before a worker hit the floor or tank. (Tr. 192-193, 195, 231-234).
However, once the plugs were lifted, the chain may have been able to move. (Tr. 235). There
might also be a possibility of striking the structure in a fall. (Tr. 235). Sichmeller estimated the
gap between the grating and the edge of the solid structure at three to four feet; enough space for
a miner to fall through. (Tr. 185-188). However, Greschner testified that distance was measured
only 21 inches at the widest point. (Tr. 252-253). Regardless of the structure, Savela conceded
7

Sichmeller could not measure the convertor box because he had no harness and could
not reach the chain hoist, but he estimated its depth at three or four feet in the center (the box
tapered at the sides). (Tr. 167, 184). The box was too deep to reach in and pull the plug. (Tr.
190). The outside of the tank was 65 inches deep. (Tr. 167). The opening was large enough for
someone to fall in. (Tr. 167). However, the miner was taller than 5’11. (Tr. 188). The fall to
the floor was 75 inches. (Tr. 166-167, 194). Sichmeller felt that any fall danger from this height
was an imminent danger, as he had been trained to do. (Tr. 193-194). He has issued citations for
less than six-foot falls including a 46 inch fall on a conveyor. (Tr. 194-195). A policy document
issued after this Order and signed by Neil Merrifield, the MSHA administrator for metal/nonmetal, states that individuals citing imminent dangers for falls have discretion. (Tr. 194-195).

36 FMSHRC Page 348

that if he was going to conduct this task, he would wear fall protection. (Tr. 230). Employees
and supervisors would also be required to wear it. (Tr. 230-231).
Respondent conducted annual training courses, which discussed fall protection. (Tr. 208209). Savela believed, but was not sure, that Krempich took the refresher course in 2010. (Tr.
209, 222, 230). Savela knew that Greschner received the training. (Tr. 230). Savela reviewed
the presentation on fall protection shown to Respondent’s employees (RX-36). (Tr. 209, 212).
The presentation was made by Respondent’s parent company, Cliff’s Natural Resources, based
on MSHA’s Rules to Live By. (Tr. 211). The second slide showed fall protection was required
on elevation and also mentioned using three points of contact for stability. (Tr. 209-210). Fall
protection was available in the maintenance room and in the safety department. (Tr. 210). Many
crews had their own fall protection. (Tr. 210-211).
After the order was issued, Savela ordered Krempich down (terminating the Order) and
Krempich made an “aw shucks” motion with his arms. (Tr. 163, 170-171, 223). Krempich knew
he should have been wearing fall protection. (Tr. 221-222). A written warning was placed in his
file. (Tr. 222). In the past, Savela had removed contractors from the property for failing to wear
fall protection and had seen miners be disciplined for the same. (Tr. 223).
After termination, the inspection team spoke with Greschner about fall protection and his
role in the violation. (Tr. 163, 170-171). Greschner was “meek” and did not answer questions.
(Tr. 171). Sichmeller pointed out safety signs and Greschner shrugged his shoulders. (Tr. 171).
The signs next to the convertor box near the stairway on the main walkway said “prior to
entering, fall protection must be worn within six feet of the tank edge.” (Tr. 162-163, 169, 229).
Photographs 6-C and RX-34 depicted the safety sign located on the middle of the separator tank.
(Tr. 175, 215). A miner would have to go past the sign to access the area. (Tr. 175). Savela
could not recall if the signs were posted at his direction. (Tr. 215, 228). They were installed
because miners often go out on the walkways away from the structure in the cited area, and fall
protection would be needed. (Tr. 228-229). Savela stopped the inquiry and said they wanted to
talk to counsel before answering questions. (Tr. 171). When the miner came down, Savela
talked to him. (Tr. 173). That miner sometimes acted as a relief coordinator and did so just days
after this Order was issued. (Tr. 172).
Sichmeller issued Citation No. 6553380 (GX-3) for the same condition. (Tr. 163-164). It
was issued under § 56.15005, which requires safety belts and lines to be worn near fall dangers.
(Tr. 164-165). The gravity of this citation was marked as “reasonably likely” because a worker
could fall into the tank or onto the floor and receive an injury. (Tr. 165). The injury was marked
“fatal” because a majority of mining fatalities are caused by fall trauma. (Tr. 165). There was
also the danger of drowning in the box from the suction caused by pulled plugs. (Tr. 165). This
condition was marked “S&S” because there was a discrete safety hazard that could result in a
fatality. (Tr. 166). Only one miner was affected. (Tr. 169). The citation was a 104(d)(1)
citation because it was an unwarrantable failure. (Tr. 170).
The negligence was marked as “high” and as an unwarrantable failure because it was an
open and obvious condition and a foreman was watching. (Tr. 166, 170-173). In fact, the
foreman’s gaze is what caused Sichmeller to see the condition. (Tr. 166). No one indicated that

36 FMSHRC Page 349

fall protection was present and no mitigation was offered. (Tr. 169, 171). Sichmeller believed
signs should have warned the miner about fall protection but it did not mitigate the negligence
because Greschner was in the area looking at the miner and did not tell him to stop. (Tr. 202203). However, Greschner testified that in the short time he observed Krempich he was unable
to determine if the miner was wearing fall protection. (Tr. 250-251, 258).
The violation history shows that there were two violations in the previous 24-months.
(Tr. 172, 197). Sichmeller issued one of those in 2010. (Tr. 197-198). The violation was not in
the cited area. (Tr. 198). In that case, a contractor was loading a semi and was standing on a
garbage bin inside the truck; there was no water hazard in that case. (Tr. 198). MSHA’s does
not consider anything “repeated” until there have been at least five prior citations in a 15-month
period. (Tr. 203). However, patterns with the same person, area, or condition are a problem
even if it is just a single repeat. (Tr. 203-204). Sichmeller had never issued a citation for this
condition to Greschner or the miner or on this grating before. (Tr. 204).
III.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact are based on the record as a whole and the Administrative Law
Judge’s careful observation of the witnesses during their testimony. In resolving any conflicts in
the testimony, the Administrative Law Judge has taken into consideration the interests of the
witnesses, or lack thereof, and consistencies, or inconsistencies, in each witness’s testimony and
between the testimonies of the witnesses. In evaluating the testimony of each witness, the
Administrative Law Judge has also relied on his demeanor. Any failure to provide detail as to
each witness’s testimony is not to be deemed a failure on the Administrative Law Judge’s part to
have fully considered it. The fact that some evidence is not discussed does not indicate that it
was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (administrative law
judge is not required to discuss all evidence and failure to cite specific evidence does not mean it
was not considered).
1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of Evidence
That The Cited Condition Constituted An Imminent Danger
On January 24, 2011, Inspector Sichmeller issued an imminent danger order, Order No.
6553379 to Respondent. Section 8 of that Order, Condition or Practice, reads as follows:
CONCENTRATOR: One employee was standing on top of the #4 Tails Hydro
Separator Tank at the southwest side Hydro Convertor Box using a chain hoist to
pull plugs for the Convertor Box. The employee was exposed to a fall hazard into
the open top slurry filled box or a fall to the walkway below by not being
protected due to lack of railings or fall protection in this area. The convertor box
was 65 inches in depth an (sic) the height from the top of the Hydro Separator
Tank to the metal grated walkway below was 75 inches. An oral 107(a) imminent
danger order was issued to Del Savela, Plant Safety in this area at this time and
date. Citation 6553380 was issued in conjunction with this order.

36 FMSHRC Page 350

(GX-1).
Section 107(a) of the Mine Act provides the following:
If, upon any inspection or investigation of a coal or other mine which is subject to
this chapter, an authorized representative of the Secretary finds that an imminent
danger exists, such representative shall determine the extent of the area of such
mine throughout which the danger exists, and issue an order requiring the
operator of such mine to cause all persons, except those referred to in section
814(c) of this title, to be withdrawn from, and to be prohibited from entering, such
area until an authorized representative of the Secretary determines that such
imminent danger and the conditions or practices which caused such imminent
danger no longer exist. The issuance of an order under this subsection shall not
preclude the issuance of a citation under section 814 of this title or the proposing
of a penalty under section 820 of this title.
30 U.S.C. § 817(a).
Section 3(j) of the Act defines “imminent danger” as “the existence of any condition or
practice in a coal mine or other mine which could reasonably be expected to cause death or
serious physical harm before such condition or practice can be abated.” 30 U.S.C. § 802(j). This
definition has not changed from the definition contained in the Coal Mine Health and Safety Act
of 1969, 30 U.S.C. § 801 et. seq. (1976) (amended 1977) (the “Coal Act”).
Imminent danger orders are not limited to situations where hazards pose an immediate
threat; rather an imminent danger exists where “the condition or practice observed could
reasonably be expected to cause death or serious physical harm to a miner if normal mining
operations were permitted to proceed in the area before the dangerous condition is eliminated.”
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)(citations omitted); see
also Cumberland Coal Res., LP, 28 FMSHRC 545, 555 (Aug. 2006).
An inspector retains “considerable discretion” in determining whether an imminent
danger exists because an inspector must “act with dispatch to eliminate conditions that create an
imminent danger.” Wyoming Fuel Co., 14 FMSHRC 1282 (Aug. 1992), citing R&P, 11
FMSHRC at 2164 and Utah Power & Light Co., 13 FMSHRC 1617, 1627 (Oct. 1991). In
reviewing an inspector's finding of imminent danger, the Administrative Law Judge must support
the inspector's finding “unless there is evidence that he has abused his discretion or authority.”
Cumberland Coal, 28 FMSHRC at 55, citing R&P, 11 FMSHRC at 2164; Old Ben Coal Corp. v.
Interior Bd. of Mine Op. App., 523 F.2d 25, 31 (7th Cir. 1975).
In the instant proceeding, Inspector Sichmeller issued an imminent danger order because
Krempich was standing on a raised platform without a railing or any fall protection. (GX-1). A
preponderance of the evidence supports the issuance of this Order. It is uncontested that
Krempich was standing on a raised platform without fall protection of any kind. (Tr. 158, 189,
217, 220, Respondent’s LAKE 2012-687 Post-Hearing Brief at 3, 9). Inspector Sichmeller
determined, and the evidence supports, that Krempich was standing near a 65-inch deep slurry

36 FMSHRC Page 351

box and also a 75-inch precipice that dropped to the grated walkway below. (Tr. 167, 194).
Inspector Sichmeller credibly testified that in this position, it could reasonably be expected that
Krempich would fall into the box or onto the walkway and suffer a serious, perhaps fatal, injury.
(Tr. 165). In fact, such a danger from a fall is so likely that MSHA promulgated a standard, 30
C.F.R. § 56.15005, to specifically address the use of fall protection when working in elevated
areas where falls are possible. Krempich was working with a chain hoist and essentially leaning
out over the precipice. Under normal continued mining operations it would be reasonably likely
that he could fall and that such a fall could cause broken bones, concussion, or drowning.
Therefore, the 107(a) imminent danger order was appropriate.
Respondent offered several arguments to show that Krempich was not in imminent
danger and that Inspector Sichmeller abused his discretion. However, most of these arguments
were without any legal merit.
First, Respondent argued that Krempich was not in danger of falling because he had
between three and four “points of contact” at all times while he was working. (Respondent’s
LAKE 2012-687 Post-Hearing Brief at 9). Nothing in the Act, regulations, or case law provides
an exception to the rule based on points of contact. Respondent cites to no legal authority for the
proposition that three or four points of contact eliminates an imminent fall danger. In fact, the
only evidence regarding points of contact produced at hearing comes from Respondent’s internal
PowerPoint presentation, which Savela testified mentions using three points of contact to
improve stability. (Tr. 210). Inspector Sichmeller credibly testified that, even with the use of at
least three points of contact, Krempich was in danger of falling. There is no evidence to
undermine that testimony.
Further, Respondent completely ignores the standard under 107(a), which requires the
inspector to consider the danger in light of continued mining operations without abatement.
Assuming, arguendo, that there was some validity to Respondent’s three points of contact safe
harbor, it was still reasonably likely that under normal mining conditions the situation would
change. While Krempich had at least three points of contact when Inspector Sichmeller issued
the Order, if the Order was not issued, Krempich would have released the chain hoist once the
plugs were pulled. At that point, Krempich would have only two points of contact. The same
was likely true when Krempich was walking towards the chain hoist. At any number of
instances while working, it is reasonably likely Krempich would have fewer than three points
making a fall imminent even under Respondent’s own terms.
Respondent’s second argument was that the risk of drowning was slight because
Krempich was taller than the slurry box and that the slurry was not even at the top of the box.
(Respondent’s LAKE 2012-687 Post-Hearing Brief at 9). The evidence, including evidence
developed by Respondent, showed that the area cited contained a large amount of equipment and
structure. (Tr. 184, 189, 195, 231-234, 239, 245-246). It is likely that in the event of a fall into
the slurry box, Krempich would have hit his head on this structure. He could have also fallen
backwards and hit his head on the walkway before slipping into the slurry. Finally, he could
have fallen head first into the box, hitting his head on the side or the bottom of the box. In any of
these situations, Krempich could have been knocked unconscious or simply disoriented and
drowned, regardless of the depth of the box. Further, even if Krempich did not strike his head,

36 FMSHRC Page 352

he could have been disoriented and drowned. The Secretary also raised the possibility that
suction from removing the plugs could hold Krempich at the bottom of the slurry box. Finally,
the height of the slurry box in no way changes the fact that Krempich could have fallen 75 inches
to the walkway below. The height of the slurry box does not lessen the imminent danger here.
Respondent’s third argument was that Inspector Sichmeller believed it was within his
discretion to treat every fall hazard as an imminent danger. (Respondent’s LAKE 2012-687 PostHearing Brief at 10). Respondent argued that this belief was not consistent with the Mine Act or
MSHA policy. (Id.). Inspector Sichmeller’s beliefs about falls in general are irrelevant. The
issue is whether in this particular instance, the condition or practice could reasonably be
expected to cause death or serious physical harm before being abated. As discussed supra, with
respect to the instant Order, that was the case.
Respondent also argued that a slip was unlikely because the floor was dry. (Respondent’s
LAKE 2012-687 Post-Hearing Brief at 10). The preponderance of the evidence shows that a fall
hazard existed whether or not the floor was wet. Specifically, Sichmeller testified only that the
floor “may” have been wet but was clear that a fall hazard existed. (Tr. 158-159,188-189). Even
if the floor was dry, a fall was still reasonably likely.
Finally, Respondent argued that Krempich had only been in the cited area for a short
time. (Respondent’s Lake 2012-687 Post-Hearing Brief at 10). Once again, the issue is whether
Krempich faced a reasonably likelihood of death of serious physical harm under continued
mining conditions. It is totally irrelevant how long the condition had existed or would exist but
if at any time Krempich would face an imminent danger.
Therefore, in light of the facts discussed supra, the Administrative Law Judge finds that
Inspector Sichmeller did not abuse his discretion in issuing the 107(a) Order.
2. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That 30 C.F.R. § 56.15005 Was Violated.
On January 24, 2011, Inspector Sichmeller issued a 104(d)(1) Citation, Citation No.
6553380 to Respondent. Section 8 of that Order, Condition or Practice, reads as follows:
CONCENTRATOR: The employee was standing at the edge of the Line #4
Hydro Separator Tank pulling the drain plug for the southwest side convertor box
for the separator. The employee was not protected from a fall in this area due to
the lack of fall protection, railings, or coverers to the open convertor box. The
height of the top of the Hydro Separator Tank to the metal grated walkway below
was 75 inches, and the depth of the slurry filled box was 65 inches. The company
does have warning signs posted in this area at the access point for fall protection
when within six feet of the edge. The Cold Side Shift Coordinator was in this
area observing the employee conducting the work activity. The Coordinator
engaged in aggravated conduct constituting more than ordinary negligence. This
violation is an unwarrantable failure to comply with a mandatory standard. This
citation was issued in conjunction with 107(a) imminent danger order #6553380

36 FMSHRC Page 353

(sic). Standard 56.15005 was cited 4 times in two years at min 2103404 (2 to the
operator, 2 to Contractors).8
(GX-3).
The cited standard, 30 C.F.R. § 56.15005 (“Safety Belts and Lines”), provides the
following:
Safety belts and lines shall be worn when persons work where there is danger of
falling; a second person shall tend the lifeline when bins, tanks, or other
dangerous areas are entered.
30 C.F.R. § 56.15005.
As Judge Simonton noted in discussing a 30 C.F.R. § 56.15005 violation, “the
Commission has held that a danger of falling exists when an informed, reasonably prudent
person would recognize a danger of falling warranting the wearing of safety belts and lines.”
Hunt Martin Materials, LLC, 2013 WL 1856613, *5 (Sept. 2013)(ALJ Simonton), citing Great
Western Electric Co., 5 FMSHRC 840, 842 (May 1983).
Respondent did not contest Inspector’s Sichmeller’s finding that Krempich was not
wearing fall protection. (Tr. 158, 189, 217, 220, Respondent’s LAKE 2012-687 Post-Hearing
Brief at 3, 9). Therefore, the only issue is whether a reasonably prudent person would recognize
the fall danger.
Sichmeller credibly testified that the danger of a fall was readily apparent. (Tr. 166, 170173, 205-206). This clear danger was discussed at length in the discussion on the imminent
danger order supra. In addition, when Sichmeller pointed out the cited condition without
speaking, Savela instantly knew why the imminent danger order was issued, specifically that
there was a fall risk. (Tr. 205-206). It was obvious to Respondent’s safety director the instant
that he saw Krempich leaning over the slurry box that the condition posed a threat. Therefore,
the Administrative Law Judge finds that a reasonably prudent person would have realized that
standing on an elevated walkway without fall protection or a railing would constitute a fall
hazard.
Respondent essentially argues that there was no fall hazard here. As discussed with
respect to the imminent danger order, Respondent argues that Krempich had at least three points
of contact, that he was taller than the slurry box, that Sichmeller misunderstands fall danger, that
Krempich was in the position for a short time, and that the area was dry. For the same reasons
discussed supra, the Administrative Law Judge rejects these arguments and finds that the
Citation was validly issued.

8

On the same day, Inspector Sichmeller issued an amendment to this Citation to reflect
the fact that the imminent danger order was given Order No. 6553380, not No. 6553379. (GX3).

36 FMSHRC Page 354

3. Considering The Record In Toto And Applying Applicable Case Law, The Violation
Was Reasonably Likely to Result in a Fatal Injury And Was Significant And
Substantial In Nature
Inspector Sichmeller marked the gravity of the cited danger in Citation No. 6553380
“Reasonably Likely” to result in “Fatal” injury to one person. (GX-3). These determinations are
supported by a preponderance of the evidence.
The Mine Act requires that “gravity of the violation” be considered in assessing a
penalty. 30 U.S.C. § 820. The Secretary promulgated a three-factor inquiry to determine the
gravity of a citation for purposes of determining the penalty. Those factors are:
[T]he likelihood of the occurrence of the event against which a standard is
directed; the severity of the illness or injury if the event has occurred or was to
occur; and the number of persons potentially affected if the event has occurred or
were to occur.
30 C.F.R. § 100.3(e).
The event against which the instant standard, 30 C.F.R. § 56.15005, is directed is a fall.
For the reasons discussed supra, a fall was reasonably likely. Furthermore, as discussed at
length with respect to the imminent danger order, a fall from the walkway could have resulted in
a fatal injury from drowning in the slurry box or from severe head or back trauma from a fall to
the walkway. Finally, the evidence shows that only Krempich would be affected.
Respondent’s arguments regarding the likelihood of a fall or the gravity of the injury that
would result were considered, and rejected, in the discussion of the imminent danger order
supra. As a result, the Administrative Law Judge finds that the Secretary proved the alleged
gravity of this violation by a preponderance of the evidence.
Well-settled Commission precedent sets forth the standard used to determine if a
violation is S&S. A violation is 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., National Gypsum Co., 3 FMSHRC 822,
825 (April 1981). The Commission later clarified this standard, explaining:
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).

36 FMSHRC Page 355

With respect to the first element, the underlying violation of a mandatory safety standard,
it has already been established that Respondent violated 30 C.F.R. § 56.15005.
With respect to the second element of Mathies, a discrete safety hazard – that is a
measure of danger to safety – contributed to by the violation, the record is likewise clear. In fact,
finding that this citation was valid required a finding that a specific hazard, specifically a fall
hazard, existed. As noted, Krempich’s failure to wear fall protection on an elevated walkway
created the possibility of a fall either to the walkway or into the slurry box.
The third element of the Mathies test – a reasonable likelihood that the hazard contributed
to will result in an injury – is also supported by the record and applicable case law.
The Commission clarified the third element of the Mathies test in Musser Engineering,
Inc., and PBS Coal Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an S&S
violation for using an inaccurate mine map). The Commission held that the “test under the third
element is whether there is a reasonable likelihood that the hazard contributed to by the violation,
i.e., [in that case] the danger of breakthrough and resulting inundation, will cause injury.” Id. at
1281. Importantly, we clarified that the “Secretary need not prove a reasonable likelihood that
the violation itself will cause injury.” Id. The Commission concluded that the Secretary had
presented sufficient evidence that miners who broke through into a flooded adjacent mine would
face numerous dangers of injury. Id. The Commission also emphasized the well-established
precedent that “the absence of an injury-producing event when a cited practice has occurred does
not preclude a determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906
(Dec. 2005); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996).
As discussed supra, if Krempich were to fall from the elevated walkways he could suffer
serious traumatic injury from the fall or even drown in the slurry box. As a result, the evidence
shows that the third element of the Mathies test is met.
Respondent made several arguments attempting to show that there is no likelihood of
injury from a fall. These arguments are, to say the least, not compelling.
First, Respondent argued that there was no likelihood of injury because Krempich
maintained three or four points of contact at all times. (Respondent’s LAKE 2012-687 PostHearing Brief at 19). As discussed supra, Respondent’s insistence on “points of contact” has no
basis in law and does not decrease the likelihood of accident. More importantly, whether
Krempich had any points of contact is completely irrelevant to this discussion. Respondent
patently misunderstands the third element of Mathies. The issue at this stage of the inquiry is
whether the hazard contributed to by the violation, in this case a fall, would result in injury. The
third element presupposes that the fall, is realized and asks whether an injury would be expected
to result. Respondent’s frivolous argument does not aid the Administrative Law Judge in
determining whether a fall would, or would not, result in an injury and is therefore disregarded.
Second, Respondent argues that merely being on an elevated surface does not create the
likelihood of injury. (Respondent’s LAKE 2012-687 Post-Hearing Brief at 19-20). Once again
Respondent does not understand the third element of Mathies. The issue is whether a fall from

36 FMSHRC Page 356

the cited location would be likely to result in injury, not whether the fall itself is likely. This
argument is likewise frivolous and disregarded.
Finally, Respondent argues that if someone were to slip from the elevated walkway, there
was structure in the way that would break the fall. (Respondent’s LAKE 2012-687 Post-Hearing
Brief at 20). This is a more appropriate argument with respect to the third element of Mathies,
but the preponderance of evidence shows that an injury was still likely. Sichmeller credibly
testified that even with the structure in place, there was a gap between the grating and the
structure where a miner could fall. (Tr. 185-188). He also testified that if the plugs had come
undone, the chain hoist could have moved, exposing the miner to a fall. (Tr. 235). Further,
under continued normal mining operations, Krempich may have moved away from the structure
to complete his tasks. While it is true that the placement of the structure probably decreased the
likelihood of an injury, the Administrative Law Judge still believes that an injury was reasonably
likely. As a result, The Secretary has met his burden with respect to the third element of
Mathies.
Under Mathies the fourth and final element that the Secretary must establish is that there
was a “reasonable likelihood that the injury in question will be of a reasonably serious nature.”
Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC at 1574. As the Administrative
Law Judge found that an injury from fall could result in broken bones or even death, this element
is clearly met.9

9

While the hazard here included the possibility of death from drowning, there was also
the risk of serious injury from the fall as well. See Judge Bulluck’s discussion regarding the
risks associated with a fall in Granite Rock Company:
In Great Western Electric, the Commission explained that a miner's
“position twelve feet above the ground presented a substantial height from which
to fall.” 5 FMSHRC 840, 843 (May 1983); see also generally Molton Co., LP, 31
FMSHRC 427 (Mar. 2009) (ALJ) (crediting an inspector's testimony that fatal
falls have occurred from heights of 10 feet or less, and finding an S&S violation
where a miner was working without fall protection at a height of approximately 7
feet); Cantera Green, 21 FMSHRC 310 (Mar. 1999) (ALJ) (finding S&S, safe
access violations where workers were working 8, 10, and 12 feet above ground);
Laramie Cnty. Road & Bridge, 17 FMSHRC 902 (June 1995) (ALJ) (crediting an
inspector's testimony that miners have been seriously injured and killed as a result
of falling from heights of 8 to 12 feet, and finding an S&S violation). Moreover,
the Commission has acknowledged that “[e]ven a skilled employee may suffer a
lapse of attentiveness, either from fatigue or environmental distractions, which
could result in a fall.” Id. at 842. Based on the evidence, I find that a fall from 8 to
12 feet would reasonably result in serious injuries ranging from broken bones and
head trauma, possibly death. Therefore, I conclude that the violation of section
56.15005 was S&S.
34 FMSHRC 261 (January 2012) (ALJ Bulluck).

36 FMSHRC Page 357

As a result, the Administrative Law Judge finds that the Secretary proved the violation
was S&S by a preponderance of the evidence.
4. Respondent’s Conduct Did Not Display “High” Negligence And Was Not The Result
Of An Unwarrantable Failure To Comply With the Standard.
In the citation at issue, Inspector Sichmeller found that the operator’s conduct was highly
negligent in character. (GX-3).
Standard 30 C.F.R. § 100.3(d) provides the following:
(d) Negligence. Negligence is conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to protect miners
against the risks of harm. Under the Mine Act, an operator is held to a high
standard of care. A mine operator is required to be on the alert for conditions and
practices in the mine that affect the safety or health of miners and to take steps
necessary to correct or prevent hazardous conditions or practices. The failure to
exercise a high standard of care constitutes negligence. The negligence criterion
assigns penalty points based on the degree to which the operator failed to exercise
a high standard of care. When applying this criterion, MSHA considers mitigating
circumstances which may include, but are not limited to, actions taken by the
operator to prevent or correct hazardous conditions or practices.
In 30 C.F.R. § 103(d), Table X, the category of high negligence is described thusly: “The
operator knew or should have known of the violative condition or practice and there are no
mitigating circumstances.” Conversely, moderate negligence is shown when “[t]he operator
knew or should have known of the violative condition or practice, but there are some mitigating
circumstances.” Low negligence is served for situations where there are “considerable”
mitigating circumstances.
The Administrative Law Judge finds that while Respondent should have known about the
violation, there were several mitigating factors. With respect to knowledge, well-settled
Commission precedent recognizes that the negligence of an operator’s agent is imputed to the
operator for penalty assessments and unwarrantable failure determinations. See Whayne Supply
Co., 19 FMSHRC 447, 451 (Mar. 1997); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,
194-197 (Feb. 1991); and Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-1464 (Aug. 1982).
An agent is defined as someone with responsibilities normally delegated to management
personnel, has responsibilities that are crucial to the mine’s operations, and exercises managerial
responsibilities at the time of the negligent conduct. Martin Marietta Aggregates, 22 FMSHRC
633, 637-638 (May 2000) see also 30 U.S.C. §802(e) (an agent is “any person charged with
responsibility for the operation of all or part of a…mine or the supervision of the miners in
a…mine.”).
With respect to the instant violation, evidence shows that Respondent’s manager
Greschner was not actually aware of the cited condition. The Secretary argued that Greschner,
had actual knowledge of the violation because he was standing at the bottom of the stairs,
looking up toward Krempich while the miner was working without fall protection. (Secretary’s

36 FMSHRC Page 358

Post-Hearing Brief at 13-14). Greschner credibly testified that he had arrived at the location a
few moments before the inspection crew. (Tr. 245-251). Further, he credibly testified that from
the bottom of the stairs he was initially unable to see Krempich and that he did not have enough
time after seeing the miner to determine whether he was wearing fall protection. (Tr. 245-246).
Therefore, the Administrative Law Judge finds that Greschner, and hence Respondent, was not
actually aware of the cited condition until Inspector Sichmeller cited it.10
However, while Greschner did not know that Krempich was working without fall
protection, he should have known. At the time of the violation Greschner was a supervisor. (Tr.
237-238). He was assigned to fix a unique problem and specifically sought out Krempich for
assistance. (Tr. 241). He directed and oversaw Krempich work on the hydro separator, even if he
did not watch Krempich the entire time. (Tr. 241, 244). As his supervisor, Greschner should
have known that Krempich was violating the standard and taken actions to correct the problem.
As a result, the Administrative Law Judge finds that Respondent was negligent.
While the Administrative Law Judge affirms the inspector’s finding that Respondent was
negligent, the evidence does not support a finding that this negligence was high; there were
mitigating circumstances. Specifically, Respondent noted that it had posted signs encouraging
miners to wear fall protection on the elevated walkway. (Tr. 202-203, 228-229, 256). The
existence of these signs is not contested. This showed that Respondent was aware of the danger
and that it had taken some action to ensure compliance.
Also, the evidence shows that while there was no railing or fall protection, there was
structure near the miner. (Tr. 187-188, 231-234). This structure could break a miner’s fall in
case of a slip. Even inspector Sichmeller admitted as much. (Tr. 192-193, 195). Furthermore,
the structure ensured that the area where the miner could fall would be limited. While the miner
should have been wearing fall protection, management may have reasonably believed that this
structure provided some protection.
Finally, the possible fall, at its highest, was around seven feet. (Tr. 194). While this
height could be extremely dangerous (see gravity discussion supra), Respondent may have
believed that the danger was limited at that elevation. As a result, its negligence may have been
somewhat lessened.
In light of these mitigating circumstances, Respondent’s actions are best characterized as
showing “Moderate” rather than “High” negligence.
The Commission has recognized the close relationship between a finding of
unwarrantable failure and a finding of high negligence. San Juan Coal Co., 29 FMSHRC 125,
139 (Mar. 2007) (remanded because a finding of high negligence without a corresponding
finding of unwarrantable failure was “seemingly at odds.”) see also Consolidation Coal
10

The Secretary also asserted that Krempich occasionally acted as a supervisor, creating
liability on the part of Respondent for his actions. (Secretary’s Post-Hearing Brief at 14).
However, the miner was not acting as a supervisor at the time of the violation. This point is not
contested. Therefore, his actions were not imputable to Respondent.

36 FMSHRC Page 359

Company, 22 FMSHRC 340, 353 (2000) (holding that if there is mitigation, an unwarrantable
failure finding is inappropriate). Emery Mining Corp., defines an unwarrantable failure, as
“aggravated conduct constituting more than ordinary negligence.” Emery Mining Corp., 9
FMSHRC 1997, 2002 (Dec. 1987). Such conduct may be characterized as reckless disregard,
intentional misconduct, indifference, or serious lack of reasonable care. Id. at 2004; see also
Buck Creek Coal, 52 F.3d 133, 135-136 (7th Cir. 1995). The Commission formulated a six
factor test to determine aggravating conduct. IO Coal Co., Inc., 31 FMSHRC 1346, 1350-1351
(Dec. 2009). The Administrative Law Judge will consider each of those factors in turn:
1. Extent Of The Violative Conditions
This particular condition dealt with a single miner failing to wear fall protection. (Tr.
169). There is no evidence that other miners were exposed or that this condition occurred
regularly. In fact, Respondent posted signs encouraging miners to wear fall protection. (Tr. 202203, 228-229, 256). Therefore, the violation in this matter was not particularly extensive.
2. The Length of Time the Violation Existed
Greschner credibly testified that Krempich had been in the area for only a short period of
time before the citation was issued. (Tr. 250). Sichmeller testified that he saw the miner for a
few minutes before the citation was issued but could not say how long the miner was exposed in
general. (Tr. 170, 199, 202). Therefore, the violation had not existed for a lengthy period.
3. Whether the violation is obvious or poses a high degree of danger
The violation at issue here posed a considerable danger. As discussed supra, this
condition was reasonably likely to result in serious, perhaps fatal, injuries to the miner. Whether
the condition was obvious is a more complicated question. The miner was not wearing fall
protection and that condition was immediately visible to Inspector Sichmeller and Savela during
the inspection. (Tr. 158, 166, 170-173, 189, 217, 220). However, as noted, the condition had not
existed for very long and visibility from other areas in the plant was not as clear. (Tr. 170, 250,
199, 202, 245-246). Therefore, the condition posed a high degree of danger but was something
less than obvious.
4. Whether the operator had been placed on notice that greater
efforts were necessary for compliance or that this condition was an
issue.
Respondent’s violation history indicates that in the 18 months preceding this violation the
Plant was cited four times for this condition. (GX-3). Two of those citations were issued to
Respondent while two were issued to contractors. (Id.). No evidence was presented of any other
notice provided to Respondent. The Administrative Law Judge finds that Respondent did not
have meaningful knowledge that this condition required particular attention.

36 FMSHRC Page 360

5. The operator’s efforts in abating the violative condition
Respondent abated the condition immediately after Inspector Sichmeller issued the
imminent danger order.
6. Operator’s knowledge of the existence of the violation
“It is well-settled that an operator’s knowledge may be established, and a finding of
unwarrantable failure supported, where an operator reasonably should have known of a violative
condition.” IO Coal Co., 31 FMSHRC at 1356-1357 (citing Emery, 9 FMSHRC at 2002-2004).
A supervisor’s knowledge and involvement is an important factor in an unwarrantable failure
determination. See Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001) citing (REB
Enterprises, Inc., 20 FMSHRC 203, 224 (Mar. 1998) and Secretary of Labor v. Roy Glenn, 6
FMSHRC 1583, 1587 (July 1984). As discussed above, the preponderance of the evidence
shows that while Respondent did not have actual knowledge of the cited condition, it should
have known of the violation.
In light of the isolated nature of the violation, short length of time the cited condition
existed, the limited notice that greater efforts were needed, Respondent’s efforts at abatement,
and the fact that Respondent’s negligence is better characterized as “moderate,” the
Administrative Law Judge holds that a finding of unwarrantable failure would be inappropriate.
5. Penalty
Under the assessment regulations described in 30 CFR §100, the Secretary proposed a
penalty of $11,597.00 for Citation No. 8553380. A recent Commission decision, Sec. v.
Performance Coal Co., (Docket No. WEVA 2008-1825 (8/2/2013) reaffirmed that neither the
ALJ nor the Commission is bound by the Secretary’ proposed penalties. (see also 30 U.S.C.
§820(i) and 29 C.F.R. §2700.30(b)). However, the Commission in Performance Coal, also held
that, although there is no presumption of validity given to the Secretary’s proposed assessments,
substantial deviation from the Secretary’s proposed assessments must be adequately explained
using §110(i) criteria. (Id. at p. 2). (see also Cantina Green, 22 FMSHRC 616, 620-621 (May
2000)). The ALJ finds that a substantial deviation from the Secretary’s proposed assessment is
warranted herein and will evaluate the factors contained in 30 U.S.C. § 820(i) to explain that
deviation. Those factors are as follows:
(1) The Operator’s history of previous violations – in the 18 months preceding this
violation the Plant was cited four times for this condition. (GX-3). Two of those citations were
issued to Respondent while two were issued to contractors. (Id.).
(2) The appropriateness of the penalty compared to the size of the Operator’s business –
United Plant has 592,779 yearly mine hours and Respondent has 2,179,873 yearly controller
hours. According to MSHA’s penalty assessment guidelines this gives United Plant nine “mine

36 FMSHRC Page 361

size points” out of a possible 15 and Respondent seven “controller size points” out of a possible
10. see 30 CFR § 100.3(b). Thus, Respondent is a large operator with an above-average sized
plant.
(3) Whether the Operator was negligent – As previously shown, the operator exhibited
moderate negligence, rather than the high negligence and unwarrantable failure cited by the
Secretary.
(4) The effect on the Operator’s ability to remain in business – The parties have
stipulated that the Orders at issue here would not affect Respondent’s ability to remain in
business. (JX-1)
(5) The gravity of the violation – As previously shown, this violation was reasonably
likely to result in fatal injuries to one person.
(6) The demonstrated good-faith of the person charged in attempting to achieve rapid
compliance after notification of a violation – The evidence shows the condition was abated
rapidly and in good faith.
In light of the Administrative Law Judge’s decision to modify the negligence from
“High” to “Moderate” and to eliminate the unwarrantable failure designation, a reduction in the
assessed penalty is appropriate. Therefore, Respondent is hereby ORDERED to pay a civil
penalty in the amount of $7,000.00.
LAKE 2012-841-M
I.

ISSUE

With respect to LAKE 2012-841-M, the issues to be determined are whether
Respondent’s alleged actions on April 26, 2011 were a violation of § 56.20003(b) and, if so,
whether that violation was significant and substantial (“S&S”), whether it was reasonably likely
to result in lost workday/restrict duty injury, whether it was the result of high negligence, and the
appropriate penalty for the violation.
II.

SUMMARY OF TESTIMONY

On April 26, 2011 at 1:34 p.m., Inspector Sichmeller issued a Citation, No. 6559833,
after observing a build-up of oil and oil saturated pads on walkways leadings to a compressor in
an unloading area. (Tr. 19-20). The citation was issued under §56.2003(b), which requires all
working places be clean and kept dry. (Tr. 20). The cited conditions were not noted in that
workplace examination. (Tr. 50-51).
The cited area was in a separate room inside the pelletizing building. (Tr. 50). The pellet
plant was roughly 460 feet long, 370 feet wide, and 110 feet high. (Tr. 58). It was five stories
tall and the compressor was on the bottom floor. (Tr. 59, 95-96). The compressor room was 15
feet square. (Tr. 59). It was used to boost air pressure for moving additives (limestone, soda
ash). (Tr. 59, 95-96). The high pressure air pushed the additives through a 3.5-inch hose to

36 FMSHRC Page 362

unload trucks. (Tr. 61-62, 95-96). Shari McGregor testified that a truck would pull up to the
outside of the room, hook up to the hose, the compressor would be started, the material would
unload, and then the hose would be unhooked and the compressor shut off.11 (Tr. 95-96, 99).
The room contained a motor, compressor, incoming and outgoing pipe, and disconnect.12 (Tr.
59). The controls for the compressor were located on the outside of the room where trucks were
parked, 40 feet away, because the room was noisy. (Tr. 60, 97).
The compressor ran for the entire day shift (7 a.m. to 3 p.m.) when the trucks were
unloading. (Tr. 98-98). It sometimes, though rarely, ran in the afternoon. (Tr. 99). The
compressor only ran when unloading, so it was occasionally off. (Tr. 99). Only one truck could
unload at a time. (Tr. 117). McGregor did not know how many trucks were unloaded during a
shift, but it took an average of an hour and a half to unload a truck. (Tr. 117).
At the beginning of each shift, the compressor room would be accessed by the material
unloader. (Tr. 60, 98, 116, 121). No one other than the material unloader would be there on a
normal day. (Tr. 121). That individual would perform an exam, top off the oil, and make sure
the cooling water was on.13 (Tr. 21, 60, 98, 116, 121). Attendants would enter the filling area
from the north side of the compressor. (Tr. 66-67). There was a north-to-south pathway around
the compressor. (Tr. 63-64). The exam would be completed with the compressor off and no
11

At hearing, Shari McGregor was present and testified for Respondent. (Tr. 93). At the
time of the hearing she had been a miner since 1999 and worked at “every mining facility in
Northern Minnesota.” (Tr. 93). She had completed a millwright program at Eveleth Technical
College. (Tr. 93). She worked through Millwright Local 1348’s call-out hall. (Tr. 93).
McGregor began working for Respondent in June of 2008 or 2009 as the pellet plant
maintenance planner. (Tr. 94). At the time of the hearing she was the fines crusher maintenance
planner. (Tr. 94). In that capacity she managed work orders as they came in off the floor,
bought the parts necessary to make fixes, and helped schedule jobs in the order she saw fit. (Tr.
94). McGregor did not have any recollection of working on the instant citation. (Tr. 115).
12

The compressor room was not a “wet process” room. (Tr. 74-75). Savela only saw
moisture from a small amount of water on a drain pipe. (Tr. 75). That drain was outside of the
walking and working surfaces where no one would walk. (Tr. 90-91).
13

Take Five is a Cliff’s Natural Resources policy that encourages miners to clean up and
look for potential hazards before starting a job. (Tr. 101, 126-127). ). It is a five-step process
that all managers and miners are taught. (Tr. 127). When an individual would approach a task
he would first try to think out the issue that may arise. (Tr. 101-102, 127). For the shift
examination, Take Five might entail planning the strategy for the exam. (Tr. 101-102). The
individual would think about tools or measures that could eliminate or reduce risks. (Tr. 127,
141). Then he would work safely while constantly re-evaluating safety. (Tr. 127). For larger
jobs, it might entail looking to at the area, determining how to make the fix and strategizing the
task before entering the area. (Tr. 102). Supervisors would explain each step in a project,
whether a single day or something larger. (Tr. 106). Take Five information was posted in every
room of the plant. (Tr. 105-106). As a planner, when McGregor would hand out Take Five slips
with work orders. (Tr. 106). All of the miners were aware of the program. (Tr. 106).

36 FMSHRC Page 363

trucks present. (Tr. 61, 100). After the exam, no one would need to be in the room because the
compressor could be operated from outside. (Tr. 60-61).
In addition to the daily shift examinations, two mechanics made a weekly pump route
check of the area. (Tr. 100, 117). These mechanics would make quick fixes if possible and draft
work orders for larger jobs. (Tr. 101, 121). Miners might also work on problems in the room
while the compressor was running. (Tr. 99). Given the importance of running the compressor,
there would be an “A” work order written, so work would be done immediately. (Tr. 101).
Sichmeller never saw anyone adding oil to the compressor, but he knew that in order to
do so, an individual would have to stand right beside it. (Tr. 41). The area to add oil and operate
the valves was on the south side of the compressor.14 (Tr. 26, 41). The working floor surface
was directly below the oil filling cap. (Tr. 70). Savela testified that an attendant would not walk
to the far side, as it is a dead end blocked by a large pipe. (Tr. 67).
McGregor and Savela testified that the compressor needed to be re-filled daily because it
placed oil into the lines to lubricate the machine, thereby “burning” the oil.15 (Tr. 88, 98).
However, Savela conceded he was not familiar with what happened to the oil and that he did not
know what was causing the leaks. (Tr. 91-92). The oil often spilled because the compressor was
repeatedly overfilled. (Tr. 73). McGregor testified that the oil overflowed because it was cold
when filled, resulting in expansion when heated. (Tr. 103). In addition to oil expansion, leaks
could also occur from vibrations. (Tr. 103, 116, 118). Savela testified that leaks occurred
because the examiner would fill the compressor until the oil overflowed. (Tr. 74). The oil did
not affect the attendant’s ability to access the area. (Tr. 74). McGregor testified that the miners
knew the oil was there, that they were not supposed to walk in it, and that they were to clean
before working. (Tr. 104, 107, 121).
Sichmeller believed the compressor had hemorrhaged the oil into the walkways. (Tr. 23,
26, 29, 52). This was because there was oil all over the compressor, dripping, building up
underneath, and spilling out into the walkway floor. (Tr. 23). However, Sichmeller conceded
that he never determined the cause of the leaks. (Tr. 23, 43). If he were able to do so, he would
have issued a citation under a different standard. (Tr. 43). He did not speak to the maintenance
department to determine the source of the oil. (Tr. 45). He also did not recall if he talked to the
attendant about the procedures for filling the compressor with oil or for placing pads. (Tr. 44). If
he had, he probably would have included it in the citation. (Tr. 44). He had spoken with the
attendant about those issues during an earlier inspection. (Tr. 45).
14

Sichmeller testified that the light on the south side of the compressor was blinking,
possibly affecting illumination. (Tr. 22). However, Sichmeller conceded that there was also a
string of lights on the north side of the compressor room. (Tr. 46). Savela believed the lighting
was adequate; sodium vapor lights on the south wall and half a dozen 120-volt lights. (Tr. 62,
68).
15

The machine was filled each shift with a one-quart “tea pot.” (Tr. 73-74). Savelea
disagreed with McGregor that a sight glass was available to determine how much oil was needed.
(Tr. 73-74, 98).

36 FMSHRC Page 364

To stop leaks, maintenance would tighten lines and, if it was a small leak, set down pads.
(Tr. 104, 108-109, 116). Spills larger than five gallons would require a work order. (Tr. 108).
Absorbent pads were the same as having a dry floor. (Tr. 107). Pads sat behind the compressor
or in a cabinet outside. (Tr. 107-108). They were disposed of in an oil containment area in the
room and near the loading area. (Tr. 108).
Sichmeller testified that the instant spill stretched 10 inches into the 27-inch wide
walkway on the south side of the compressor. (Tr. 23). On the north side, the spill was 20-by-24
inches in size and stretched underneath the compressor and out into the walkway. (Tr. 23). The
walkway tapered to 20 inches at the north because of the compressor and piping. (Tr. 23-24, 28).
The compressor could only be accessed from the north, meaning that entering and leaving would
require travel through both spills. (Tr. 24). However, McGregor testified there was a clear path
around the backside of the motor and compressor to reach the working area. (Tr. 104-105). A
miner would return using the same path. (Tr. 105). Miners stood behind the compressor while
filing it with oil. (Tr. 105). Savela testified that the floor was dry and oil free. (Tr. 64-65, 80).
In addition to the walkway, Sichmeller testified there was oil saturation around the
compressor’s pedestal. (Tr. 27). Oil was on the pedestal because leaks on the compressor were
building up. (Tr. 27, 52). Savela testified that the pedestal was reminiscent of a curb, and it held
leaked oil.16 (Tr. 70). Sichmeller did not believe there was a curb around the pedestal. (Tr. 42).
Sichmeller testified that there were two to four layers of absorbent pads on the spills. (Tr.
21-22, 26-28). These pads were in the middle of the walkway on the north side. (Tr. 29).
Savela testified that the pads were not in the walkway. (Tr. 65, 73). He also testified that the pad
in the working area had created a dry floor, so there was no need for additional pads. (Tr. 6768). He further stated that the pads on the north side were only by the discharge pipe. (Tr. 73).
Pads were also placed on the floor on the south side of the compressor, in the
containment area, and along the oil reservoir/manifold. (Tr. 73). On the south side, Savela
testified there were three pads on the floor. (Tr. 66). Savela did not believe the pads were
stacked and saw no puddles on the floor. (Tr. 67, 85). Savela also testified that there were pads
in the containment area, but not on the working floor. (Tr. 72). He believed miners were not
exposed to the pads in the containment area because the area was covered by the motor and
compressor. (Tr. 71-72). Miners would not access this area and would not tamp the pads down
with their feet. (Tr. 87). To contact the pads here, someone would have to put their hand or foot
in the space between the equipment. (Tr. 72).
Sichmeller believed the pads added to the hazard as waste accumulation and as a slip
hazard. (Tr. 22, 47). Oil had built up on the walkways to the point that the pads were saturated
and no longer effective. (Tr. 26, 52). Someone saw the condition and added more pads. (Tr. 2616

Savela testified that the pedestal was a steel enclosed rectangle fastened to the
compressor. (Tr. 70). It created a containment area near the fill point. (Tr. 70-71). The
compressor sat on one side and the motor was on the other, with pads below the shaft that
connected them. (Tr. 72-73). This containment area was eight feet by three feet and prevented
oil from getting into the walkway. (Tr. 71).

36 FMSHRC Page 365

27). Savela agreed that it was not normal to use layers of pads, but conceded that there were
layers in the cited area. (Tr. 84, 92). It was not Respondent’s policy to stack layers of pads. (Tr.
119). Sichmeller believed the top-layer pad was ineffective and leaking. (Tr. 29). Savela
testified that the top pad was not saturated, though there was some oil on it. (Tr. 84-85).
McGregor testified that pads were replaced when saturated. (Tr. 107).
Sichmeller observed multiple foot prints in the oil. (Tr. 22-23, 47). The only warning
sign in the area instructed employees to check the oil and listed the type of oil needed. (Tr. 30).
Sichmeller did not see other warnings. (Tr. 30). However, Savela testified that when installing a
pad, someone might use their boot to step on it and make it adhere and absorb. (Tr. 66, 87).
The citation was marked as “reasonably likely” because miners accessed this area at least
once a day to check equipment and add oil. (Tr. 20). It was marked “lost workdays or restricted
duty” because the area where the compressor was reached and maintained was congested with
lots of piping. (Tr. 20, 52). The plant had multiple levels; the floors could be wet so oil on a
boot was extremely slippery. (Tr. 52). Miners could slip and fall and get sprains, strains, and
broken bones. (Tr. 20). Savela reviewed a material safety data sheet for the oil used in the
compressor room (RX-8). (Tr. 81). The form cautioned on page 3, “[p]revent small spills and
leakage to avoid slip hazard.” (Tr. 86). McGregor testified that the oil was tacky rather than
slippery. (Tr. 119). She also testified that oil that collected on someone’s boot would wear off
or be covered in dust because it was sticky. (Tr. 119). She stated that spills were cleaned to
prevent stepping in oil, getting it on miners’ hands, and for environmental reasons. (Tr. 119).
Sichmeller believed that friction from mechanical parts also created fire hazard. (Tr. 51).
Worn out bearings could cause hydraulic fires and electrical short circuits. (Tr. 51). The pads
added to that danger “like a candle wick,” when saturated. (Tr. 51). Miners could inhale smoke
if the oil caught fire. (Tr. 20). However, there was water on the machine to keep it cool. (Tr.
51). Further, Sichmeller conceded that he did not know what type of oil was used and that
hydraulic oil of the type he would expect to find in the compressor room had a high flash point.
(Tr. 46). According the to the material safety data sheet, there was very little flammability
hazard.17 (Tr. 82). The flash point was 453 Fahrenheit. (Tr. 82). The oil would not ignite
unless it was twice as hot as boiling water. (Tr. 82). Also, no mechanical conditions were cited
in the compressor room, despite the fact that Sichmeller inspected the room for those conditions.
(Tr. 53-54). Savela was not aware of any fires or slip-and-falls occurring in the room. (Tr. 90).
Sichmeller marked the citation as “S&S” because it was a violation of a mandatory safety
standard, it posed a discrete hazard, people were exposed, and there was a violation history. (Tr.
21). Further, the walkways were totally flooded. (Tr. 21). The citation was marked as affecting
one person, because only one person would go into this area. (Tr. 24-25).

17

Savela testified that the safety sheet showed the NFPA and HMIS flammability scale
rating for this oil (Tr. 82). Both scales showed the oil to be a 1 out of 4. (Tr. 82). Presumably a
lower score denotes a lower level of flammability, but Savela did not elaborate on the scales.

36 FMSHRC Page 366

This citation was marked “high” negligence because Sichmeller had cited the same
compressor two other times and knew about a third violation.18 (Tr. 33). He had also spoken
with management in 2007 and 2011 about the importance of the oil leak issue. (Tr. 33-34). He
spoke with them about the degree of negligence because of the number of oil leak citations. (Tr.
34). He spoke about this issue during pre-shift inspection conferences and closeout conferences.
(Tr. 34). Violation history is a big factor in negligence. (Tr. 34). Mine management saw the
leaks and did not prevent recurrences. (Tr. 34). Sichmeller spoke with the safety manager and
the miners’ representatives about the fact that no changes were made as reflected in his notes.
(Tr. 45). However, while he discussed oil leaks in general, he did not specifically talk about this
room. (Tr. 47). Respondent could have brought up mitigation at any time. (Tr. 45). However
no mitigation was brought to Sichmeller’s attention. (Tr. 35).
Savela, McGregor, and Sichmeller reviewed Citation No. 6553335 (GX-11) which was
issued on January 6, 2011 for conditions similar to the instant citation. (Tr. 36, 38, 78-79, 109).
Savela was present when that condition was cited. (Tr. 78). It was also marked S&S, “lost
workdays or restricted duty,” and “high” negligence. (Tr. 36). The negligence designation was
the result of violation history and the fact that he had spoken to Respondent about this issue. (Tr.
36-37). Further, the area was a mess and the condition was obvious. (Tr. 37-38). On cross
examination, Sichmeller conceded that this citation was issued for the entrance, not the filling
area. (Tr. 42).
Savela testified that the oil spill in that citation was caused by a faulty pressure relief
valve. (Tr. 79). At that time, when the relief valve was released, a mist of oil was generated.
(Tr. 80). McGregor sent mechanics to the cited area to repair the condition under a Priority A
work order. (Tr. 109, 110, 114). A pipe was installed to capture the oil in a lidded-pail, two
valves were replaced (a rare and major fix), and the area was cleaned. (Tr. 80, 88, 111, 113114). Sichmeller testified he saw this repair on the day of the instant citation. (Tr. 28). The
cleanup included tightening fittings and placing a pan under the machine for overfill.19 (Tr. 113114). She did not know how long it would take for a valve to malfunction. (Tr. 114). The
repairs took four to six hours, with a little more time for clean-up. (Tr. 114-115). These
conditions were no longer present in April 2011. (Tr. 80).
Sichmeller also reviewed Citation No. 6193967 (GX-15), which he issued on August 16,
2007 under 56.20003(b). (Tr. 38-39). It was issued in the compressor room for oil saturated
pads on the floor. (Tr. 39). Salvela was not with Sichmeller when he issued this citation; he was
on the plant floor. (Tr. 48). The citation was marked as “reasonably likely,” “lost workdays or
restricted duty,” and “high” negligence for the same reasons as the others. (Tr. 39). He was
deposed with respect to this citation on November 15, 2010. (Tr. 40). In the deposition he stated
18

Citation No. 6559833 referred to Citation Nos. 6553335 (issued during the first regular
inspection), 6193967 (issued in 2007), and 6192368 (issued by another inspector). (Tr. 35-36).
19

In a photograph from the instant citation marked GX-10 A, McGregor could not tell if
there was an oil pan for overfill. (Tr. 120). The photograph marked GX-10 B showed the same
area, only closer, and she could not tell if the pan was there. (Tr. 120). She may have seen the
outline of a pan. (Tr. 121). However, she found the pan was visible in the photograph marked
GX-10 H. (Tr. 123).

36 FMSHRC Page 367

that he had no problem with the use of these pads and that the practice was not against MSHA
policy. (Tr. 40). Sichmeller reviewed a photograph depicting the conditions seen in Citation No.
6139367 (GX-18 A). (Tr. 48). There were more pads, three layers, in 2007 than in the instant
citation where there were only two layers. (Tr. 48-50). The conditions in 2007 were much worse
than in April 2011. (Tr. 50). However, Sichmeller believed this only showed that Respondent
did not take precautions to correct the condition and had a history saturated pads. (Tr. 49).
The citation was terminated when Respondent removed all the oil-saturated pads, cleaned
the oil, and cleaned the compressor components to show where the leaks originated. (Tr. 30-31,
81). The area underneath the compressor and pedestal as well as the valves were cleaned the
pads removed. (Tr. 31). Respondent used degreaser to remove the oil from the walkway. (Tr.
30-31). Sichmeller did not know if they fixed any leaks. (Tr. 32-33). After the compressor was
degreased it was no longer hemorrhaging oil. (Tr. 43). Savela testified that no oil leaks or
hemorrhaging were found after cleaning. (Tr. 81, 90).
Several weeks after the citation was terminated, Respondent tested the cited surface to
determine if it was as slippery as MSHA believed. (Tr. 76, 128). The slipperiness of the area
was not tested the day of the citation, but rather six months later. (Tr. 145-146). The testing
was conducted by certified tribometrist, Jeffery Jarvela.20 (Tr. 128). Tribometry is the measure
of friction or traction on floor surfaces.21 (Tr. 127). A slip meter or tribometer, here a
Brungraber Mark II, provides a reading of both vertical and horizontal forces at the same time
with the slip meter “shoe” on the surface.22 (Tr. 131). This mimics the heel striking the floor.
(Tr. 131). The slip tester then gives a measurement of the slip resistance in the form of a “slip
index.” (Tr. 127-128, 131). The slip index was a range between 0 and 1.1. (Tr. 131). A reading
20

At hearing, Jeffrey Jarvela was present and testified for Respondent. (Tr. 124). He
was employed as the safety program manager by Cliff’s Natural Resources, Respondent’s parent
company, and had been employed there for over two years. (Tr. 124-125). In that capacity he
performed safety support for mines sites including program development, implementation,
training, and other needs. (Tr. 125). He primarily worked in Minnesota for Respondent,
Hibbing Taconite, and Northshore Mining. (Tr. 125). Jarvela had a bachelor’s degree in
industrial technologies and a master’s degree in industrial safety from Minnesota-Duluth. (Tr.
125). He was a certified safety professional and occupational health and safety technologist.
(Tr. 125). An occupational health and safety technologist does the technical aspects of mine
safety. (Tr. 125-126). He was certified in 1998 by the Board of Certified Safety Professionals.
(Tr. 126). A safety professional is the highest certification in the field and deals with
management. (Tr. 126). Jarvela had 13 years of experience in manufacturing including airlines,
chemical manufacturing, and electronics’ manufacturing under OSHA jurisdiction. (Tr. 126).
21

The Secretary objected to the introduction of this evidence as MSHA does not
recognize this measurement. (Tr. 142-143). MSHA does not determine slipperiness. (Tr. 147148).
22

Jarvela did know when the machine was sent for external calibration, but it was
calibrated prior to testing. (Tr. 145). He could not say whether it was properly calibrated. (Tr.
145).

36 FMSHRC Page 368

of 0.5 or less was slippery, 0.5-0.6 was acceptable, and 0.6 or higher was not slippery.23 (Tr.
132-133, 148).
At the hearing, Jarvela reviewed the slip meter assessment for the plant dated October 17,
2011 (RX-4). (Tr. 129). He was present for the test and had contracted with Liberty Mutual to
conduct it. (Tr. 129, 138). Perry Pastir, a senior consultant with the loss advisory group
Helmsman Management Services conducted the test. (Tr. 129-130). Neither Liberty Mutual nor
Pastir had any relationship with Respondent. (Ter. 138-139). Twenty-four measurements were
taken in the plant, some in the compressor room. (Tr. 130-131). The average readings in the
room were between 0.62 and 1.1, meaning the walking surfaces were non-slippery. (Tr. 132).
The first tests occurred on the floor of the compressor room.24 (Tr. 129, 133-135, 146).
The floor was clean, so oil had to be added. (Tr. 134-135). The average reading in that location
was 0.62. (Tr. 135-136).
A second test was conducted with saturated pads on the floor. (Tr. 136). The pads were
sticky because the oil had high viscosity. (Tr. 136). The pads were brown from stepping on
them to soak in oil. (Tr. 137). The results were 0.88. (Tr. 136).
Respondent conducted another tests with the pads excessively soaked in oil. (Tr. 137).
The results on these tests were the highest possible rating, 1.1, or not slippery. (Tr. 137-138).
The more oil added, the less slippery the pads and floor. (Tr. 138, 147). However, Jarvela
conceded they would clean up oil because of the slip risk and the area should be clean. (Tr. 147).
In another test, the slip test shoe was coated in oil to simulate someone stepping in oil.
(Tr. 139). Generally, before testing the shoe was cleaned and sanded. (Tr. 151). The result was
a reading of 0.64, which was not very slippery. (Tr. 139-140, 151).
Another test was taken in Savela’s office and the report shows that the linoleum tile floor
had a reading of 0.53 – more slippery than the compressor room. (Tr. 148-150). They did not
test oil on a shoe in the office. (Tr. 150).
Jarvela and the other testers concluded that the rough surface of the compressor room
with the dry dusty material was not slippery. (Tr. 140). The surface in that area was similar to
other areas in the plant, except one area (the pump row) which tested below 0.5 (Tr. 140).
Respondent contracted with a company to grind the pump row floor to increase the resistance.
(Tr. 140-141). No similar changes were recommended for the compressor room. (Tr. 141).
23

Page 2 of Jarvela’s report contained some bullets at the top which stated that 0.5 to 0.6
values are “generally unacceptable.” (Tr. 143-144). However, Jarvela testified this was a typo.
(Tr. 144). Another bullet stated, “[t]he slip shoe on the device penetrated the oil pads or got
caught on the sticky surface during the measurements of the staged oil-soaked pad test and
readings may be more slippery than indicated.” (Tr. 144-145).
24

A series of photographs was taken of the test. The photographs show the time they
were taken, with the first and 11:37 and the last at 11:46. (Tr. 146-147).

36 FMSHRC Page 369

III.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That § 56.20003(b) (Citation No. 6559833) Was Violated.

On April 26, 2011, Inspector Sichmeller issued a 104(a) Citation, Citation No. 6559833
to Respondent. Section 8 of that Order, Condition or Practice, reads as follows:
PELLET PLANT: the walkways in the Limestone/Bentonite unloading
compressor area was not being maintained in a clean condition. Oil and oil
saturated absorbent pads were found built up on the walkways on both side (sic)
of the main travel routes for accessing the compressor creating the hazard of
slip/fall type injuries to person accessing this area. This area is accessed at least
once per shift by operators for checking the compressor. The company does have
a history of violation to this standard and in this area for these conditions on
citations 6553338, 6193967, 6192368. Oil leaks and control of leaks have been
addressed by MSHA to management
(GX-1).
Standard 30 C.F.R. § 56.20003(b) (“Housekeeping”) provides the following:
(b) The floor of every workplace shall be maintained in a clean and, so far as
possible, dry condition. Where wet processes are used, drainage shall be
maintained, and false floors, platforms, mats, or other dry standing places shall be
provided where practicable
30 C.F.R. § 56.2003(b).
With respect to the instant citation, Inspector Sichmeller credibly testified that the
walkways in the bentonite compressor room at the Pellet Plant were covered in oil. (Tr. 23, 26,
29, 52). Further, Sichmeller credibly testified that while pads were placed in the area to absorb
this oil, the pads had become saturated to the point that they were no longer keeping the area
clean and dry. (Tr. 21-22, 26-28, 47, 52). The photographic evidence provided by the Secretary
supports a finding that the floor of the compressor room contained oil and saturated mats. (GX10, A through J). In fact, Respondent’s witnesses conceded that the compressor was routinely
overfilled, causing the oil to leak out of the machine. (Tr. 73-74, 103). A preponderance of the
evidence shows that the walkways were allowed to become wet with oil and that the pads used to
collect the oil were saturated and ineffective.
Respondent offered several arguments to show that the instant citation was not validly
issued. However, these arguments were not compelling.
First, Respondent argued that the areas cited were not walkways and that an open path
existed on the walkway to allow safe travel. (Respondent’s LAKE 2012-841 Post-Hearing Brief
at 8). Specifically, Respondent argued that on the north side of the compressor the spilled oil

36 FMSHRC Page 370

was not in the walkway but instead underneath pipes and that miners did not enter the south side.
(Id. at 9-10). It argued that the cited areas were not intended for travel. (Id. at 9). Respondent
alleged that the dry path was shown in the photograph marked RX-3-1. (Id. at 9). Further,
Respondent cited to ALJ Manning’s decision in Beco Construction Co., Inc., 23 FMSHRC 1182,
1194 (Oct. 2001) for the proposition that a citation for housekeeping should be vacated when a
clear footpath is available and the area is relatively clean and orderly.
In a related argument, Respondent asserted that two of the areas cited areas were not
working areas because they were under the oil reservoir and beneath the coupler shaft.
(Respondent’s LAKE 2012-841 Post-Hearing Brief at 9-10). Respondent argued that they were
not “working places” within the definition of 30 C.F.R. §56.2 (“…any place in or about a mine
where work is being performed.”). Respondent claims that people would not go into these areas.
In short, Respondent argued that all of the areas cited could either be avoided by taking
the clear path or were non-working areas that were inaccessible.
A preponderance of the evidence shows that some of the oil in this room was underneath
equipment or within the “curb” built around the compressor to contain oil. (Tr. 27, 52, 70).
However, the Administrative Law Judge is also convinced that a large amount of the oil was in
the walkway where miners performed the work of filling the compressor. Sichmeller credibly
testified that oil was in the walkway and that miners would have to enter these areas when filling
the compressor or engaged in an inspection. (Tr. 23-24, 26, 29, 52). While some of the oil was
in non-working areas and some of the walkways were clear, the Administrative Law Judge finds
that there was enough oil in the working areas to constitute a violation of the cited standard.
Respondent also presented several arguments related to the use of pads. Specifically, it
argued that the pads in the walkway were largely dry (just a little oily) and were not saturated.
(Respondent’s LAKE 2012-841 Post-Hearing Brief at 10-11). Also, Respondent asserted that the
pads were necessary to prevent intermittent leaks and that Sichmeller agreed that the use of pads
was not, per se, impermissible. (Id. at 11). Finally, Respondent claimed that the pads did not
need to be removed because they were not saturated and did not pose a hazard. (Id.).
Nothing in the standard indicates that the use of pads, in general, is disfavored. In fact,
the standard specifically calls for “mats” and other dry places for standing when wet processes
are used. 30 C.F.R. § 56.20003(b). Therefore, the issue is not whether the general use of pads
was appropriate, but instead whether the area, even with the pads, was maintained in a clean
manner. A preponderance of the evidence shows that it was not. While Respondent
appropriately used pads to collect leaks, Inspector Sichmeller credibly testified that those pads
had become completely saturated to the point that they no longer served their valuable function.
(Tr. 26, 52). Sichmeller and Savela testified that pads were saturated and more pads were simply
stacked on top of them. (Tr. 21-22, 26-28, 84-92). The Administrative Law Judge finds that a
preponderance of the evidence shows that the working areas and walkways were not maintained
properly as there were both oil and oil saturated pads on the floor.

36 FMSHRC Page 371

2. Considering The Record In Toto And Applying Applicable Case Law, The
Violation Was Reasonably Likely to Result in a Fatal Injury And Was
Significant And Substantial in Nature
Inspector Sichmeller marked the gravity of the cited danger in Citation No. 6559833
“Reasonably Likely” to result in “Lost Workday/Restricted Duty” injury to one person. (GX-1).
These determinations are supported by a preponderance of the evidence.
The event against which the instant standard, 30 C.F.R. § 56.20003(b), is directed is
injury caused by poorly maintained working areas. Inspector Sichmeller credibly testified that
the existence of oil on the walkways in the compressor created a slip-and-fall hazard that could
result in sprains, strains, and broken bones. (Tr. 20, 52). Further, the evidence shows that only
one miner at a time would likely be in this area. (Tr. 60, 98, 116, 121).
Respondent provides several arguments asserting that an accident was unlikely. However
these arguments are not compelling.
First, Respondent argued that the cited area was only minimally accessed and that there
were no tripping, electrical, or mechanical hazards in the area. (Respondent’s LAKE 2012-841
Post-Hearing Brief at 11-12). The evidence supports Respondent’s contention that the area was
only accessed once a day when the miner entered to service the compressor. (Tr. 60, 98, 116,
121). However, the citation already states that only one person would be affected. (GX-1).
Even granting that exposure was limited, the preponderance of the evidence supports the citation
as issued with respect to persons affected. Also, while there were no electrical or mechanical
hazards in the area; the evidence supports a finding that the oil and saturated pads alone
constituted a slipping hazard. (Tr. 20, 53-54). Further, the tight confines of the compressor
room and the various pieces of equipment and piping contained therein support a find that when
a miner fell, it would result in lost working or restricted duty type injuries. (Tr. 20, 52).
Second, Respondent argued that the oil pads worked as intended and that the walkway
was oil free. (Respondent’s LAKE 2012-841 Post-Hearing Brief at 12). As already discussed
with respect to validity supra, a preponderance of the evidence supports a finding that the
walkways were somewhat oily and that the pads were saturated with oil.

36 FMSHRC Page 372

Finally, Respondent argued that even if there was oil in the walkway, the oil was sticky
rather than slippery and that walking surface was less slippery with the oil than without.
(Respondent’s LAKE 2012-841 Post-Hearing Brief at 12-13). Respondent cites to the tribometry
testing conducted by Jarvela to support this assertion. (Id.). The Administrative Law Judge does
not find the tribometric evidence nor the testimony related thereto to be particularly probative.25
Jarvela did not test the cited condition with the tribometer, he merely tested the area weeks later
after placing oil on the floor. (Tr. 76, 128, 134-135). Jarvela’s tests did not analyze conditions
at the time of the citation and therefore are only partially credible. Perhaps more importantly, the
Material Data Safety Sheet provided by the manufacturer of this oil warns customers to
“[p]revent small spills and leakage to avoid slip hazard.” (RX-8). Therefore, Respondent’s
assertion that increasing the amount oil on the floor decreased the slip hazard is not only counterintuitive but also counter to the safety data provided by the manufacturer. Beyond that, a sticky
floor could be just as much of a tripping hazard as a slippery floor. Finally, the record showed
that MSHA and OSHA do not recognize tribometry for the purposes of workplace safety. (Tr.
142-143). As a result, the Administrative Law Judge finds that the oil was a slip hazard.
In addition to the slip hazard, the Secretary also asserts that the cited condition constitutes
a fire hazard. (Secretary’s Post-Hearing Brief at 15). Essentially, the Secretary notes that the oil
in the cited area was flammable and could have ignited, causing burn injuries to miners. A
preponderance of the evidence does not support this claim. As Respondent’s witnesses noted,
this oil had a flash point well above the temperatures to be expected in the compressor room.
The Material Data Safety Sheet confirms that the flash point of this oil was around 453 degrees
Fahrenheit. (RX-8). The likelihood of a fire in this area was low.
Therefore, the Administrative Law Judge finds that the cited condition was reasonably
likely to result in lost workday/restricted duty injuries to one miner as a result of slip and fall
hazard but that there was virtually no hazard of fire.
25

The Administrative Law Judge fully recognizes the necessity for expert testimony in
many of the cases before the Commission. However, there is abundant case law indicating why
expert opinion evidence may in and of itself be problematic. Indeed, many states' juror
instructions contain the following or similar language:
In evaluating the credibility of the witness, you should consider their
interests in the outcome of the case; that is, whether that interest in any fashion
affected their testimony. The testimony of an expert witness is merely an opinion.
An opinion is what someone thinks about something and the thought may be
precisely accurate or totally inaccurate and yet represent the absolute, honest
conviction of the person who expressed it. Because of this, opinion evidence is
generally considered of inferior or low grade and not entitled to much weight
against positive testimony of actual facts.
Fay v. Philadelphia, 344 Pa. 439, 441-43, 25 A.2d 145, 146-147 (1942); Kutchinic v.
McCrory, 439 Pa. 314, 226 A.2d 723 (1970). Though not bound by said jurisprudence the
undersigned, as trier-of-fact, believes such contains sage cautionary advice regarding the
evaluation of expert opinion.

36 FMSHRC Page 373

Citation No. 6559833 was also marked as S&S. (GX-1). It has already been established
that the first element of the Mathies S&S analysis, the underlying violation of a mandatory safety
standard, has been established with respect to this citation. As discussed supra, Respondent
violated 30 C.F.R. §56.20003(b).
With respect to the second element of Mathies, a discrete safety hazard – that is a
measure of danger to safety – contributed to by the violation, the preponderance of the evidence
shows that the oil and oil-saturated pads constituted a slip and fall hazard. As discussed supra, a
miner stepping onto an oily floor surface or oil-saturated pads could loose his footing and fall.
Once again, there was no credible fire hazard created by this condition.
Respondent produced several arguments for the proposition that this condition posed no
hazards, none of which are compelling.
First, Respondent argued that the absorbent pads worked as intended and that they did not
themselves constitute a slip hazard. (Respondent’s LAKE 2012-841 Post-Hearing Brief at 14).
As discussed, Inspector Sichmeller credibly testified that the pads were saturated and no longer
providing a stable place to stand. (Tr. 26, 52). The oily pads were a slip hazard and no longer
served to clean and stabilize the area. Even if sticky, the pads and floor could have been a trip
hazazard.
Respondent also argues that the saturated pads were not located in the travelway.
(Respondent’s LAKE 2012-841 Post-Hearing Brief at 14). Again, a preponderance of the
evidence shows that while some of the pads were outside of work areas, there was sufficient oil
in the walkways to violate the standard and present a slip and fall hazard. (Tr. 20). In light of
these facts, the Administrative Law Judge finds that the second prong of Mathies is met.
The third element of the Mathies test – a reasonable likelihood that the hazard contributed
to will result in an injury – is also supported by the record. A miner slipping on wet pads or an
oily walkway in the compressor room would be reasonably likely to suffer broken bones, head
injury, contusions, or other lost workday/restricted duty injuries.
The fourth element - a reasonable likelihood that the injury in question will be of a
reasonably serious nature – is also supported by the record. The slip and fall related injuries that
would occur would be of a reasonably serious nature. See e.g. Oak Grove Resources, LLC, 35
FMSHRC 3039, 3052 (Sept. 2013) (ALJ Zielinski); Oil-Dri Production Company, 32 FMSHRC
1761 (Nov. 2010) (ALJ Manning); and Mach Mining, LLC, 32 FMSHRC 213 (Feb. 2010) (ALJ
Weisberger).

36 FMSHRC Page 374

As a result, the Administrative Law Judge finds that the Secretary proved the violation
was S&S by a preponderance of the evidence.
3. Respondent’s Conduct Was Not Reasonably Designated As Being “High” In
Nature but instead showed “Moderate” Negligence.
In the citation at issue, Inspector Sichmeller found that the operator’s conduct was highly
negligent in character. He credibly testified that Respondent knew, or should have known, about
the cited condition. First, the condition was obvious as the room contained a large amount of oil
and soaked oil pads. (Tr. 21-23, 26-28). The compressor itself was soaked in oil. (Tr. 23).
Further, an employee entered the compressor room every day to examine the area and service the
machines. (Tr. 60, 98, 116, 121). Also, Respondent had been cited for the condition of the
compressor room in the past, though Sichmeller conceded previous conditions were more
serious. (Tr. 33, 49-50). Finally, Respondent noted that some spillage was unavoidable when
filling the machine but did not take sufficient action to prevent hazards from arising from that
spillage. (Respondent’s LAKE 2012-841 Post Hearing Brief at 14-15 and Tr. 73). Therefore, the
Administrative Law Judge finds that Respondent knew or should have known the condition
existed.
However, the evidence does not support the Secretary’s contention that there were no
mitigating circumstances in this case. Several factors served to mitigate Respondent negligence
with respect to the instant citation. First, Respondent had taken measures after the earlier
citations to correct conditions in the compressor room. Specifically, a bucket was added to the
compressor to collect discharge and a curb was placed to create a containment area. (Tr. 80, 88,
111, 113-114). While these measures did not eliminate the hazard here, they show that
Respondent was making some effort to correct the conditions. The same is true of the pads.
While Respondent allowed the pads to become saturated and improperly stacked the pads, the
fact that it was using the pads shows it was aware of the condition and was attempting to
alleviate it.
In light of these mitigating circumstances, a finding of “high” negligence is inappropriate.
Respondent’s actions are better characterized as showing “moderate” negligence.
4. Penalty
As with the previous citation, the Administrative Law Judge finds that a substantial
deviation from the Secretary’s proposed assessment of $16,867.00 is warranted herein. Once
again, the factors contained in 30 U.S.C. §820(i) will be used to explain that deviation. Those
factors are as follows:
(1) The Operator’s history of previous violations – in the 18 months preceding this
violation the Plant was cited 3 times for this condition. (GX-1).

36 FMSHRC Page 375

(2) The appropriateness of the penalty compared to the size of the Operator’s business –
As discussed with respect to the previous citation, Respondent is a large operator with an aboveaverage sized plant.
(3) Whether the Operator was negligent – As previously shown, the operator exhibited
moderate negligence, rather than the high negligence cited by the Secretary.
(4) The effect on the Operator’s ability to remain in business – The parties have
stipulated that the citation at issue here would not affect Respondent’s ability to remain in
business. (JX-1)
(5) The gravity of the violation – As previously shown, this violation was reasonably
likely to result in lost workday/restricted duty injuries to one person.
(6) The demonstrated good-faith of the person charged in attempting to achieve rapid
compliance after notification of a violation – The evidence shows the condition was abated
rapidly and in good faith.
In light of the Administrative Law Judge’s decision to modify the negligence from
“High” to “Moderate” a reduction in the assessed penalty is appropriate. Therefore, Respondent
is hereby ORDERED to pay a civil penalty in the amount of $10,000.00 with respect to this
violation.
ORDER
It is hereby ORDERED that Order No. 6553379, Citation No. 6553380 (LAKE 2012687) and Citation 6559833 (LAKE 2012-841) are AFFIRMED as modified herein.
Respondent is ORDERED to pay civil penalties in the total amount of $17,000.00 within
30 days of the date of this decision.26
/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge

26

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

36 FMSHRC Page 376

Distribution:
James M. Peck, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 515
West First Street, Duluth, MN 55802
Dana Svendsen, Esq., Jackson Kelly, PLLC, 18th Street, Suite 2150, Denver, CO 80202
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty
Avenue, Pittsburgh, PA 15222

36 FMSHRC Page 377

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

February 12, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,
v.
MAXXIM REBUILD COMPANY, LLC,
Respondent.

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. KENT 2013-989
A.C. No. 15-10753-327883

Mine: Mine #1

DECISION AND ORDER
Appearances: Mary Sue Taylor, Office of the Solicitor, U.S. Department of Labor, Nashville,
TN on behalf of the Secretary of Labor;
R. Henry Moore, Jackson Kelly, PLLC, Pittsburgh, PA on behalf of Respondent.
Before:

Judge Miller

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, Mine Safety and Health Administration (“MSHA”) against Maxxim Rebuild
Company, LLC, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ 815 and 820. The docket involves two citations issued by MSHA under
section 104(a) of the Mine Act at Maxxim’s fabrication shop at Mine No. 1, located in Sidney,
Kentucky.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
On October 23, 2013, I issued a decision, after hearing, regarding several citations at the
Maxxim Rebuild fabrication shop. 35 FMSHRC 3261 (October 2013). The primary issue in that
case was whether the fabrication shop was subject to MSHA jurisdiction. The parties presented
testimony and evidence at hearing, and submitted post-hearing briefs. I issued a decision finding
that jurisdiction was proper and addressed the various violations. The operator appealed the case
to the Commission and a decision has not yet been issued by the Commission. Shortly
thereafter, this docket was assigned to me and the same issue of jurisdiction was raised by
Maxxim.
During a conference call about this case, the parties agreed that the central issue was
identical to the jurisdiction issue pending before the Commission in the Maxxim case decided in
October, 2013. The parties further agreed that they would stipulate to the facts surrounding the
violation so that a decision could be issued and the mine operator would preserve the issue of
jurisdiction for purposes of appeal. On January 24, 2014, the parties filed joint stipulations,

36 FMSHRC Page 378

which are marked as a joint exhibit and are the basis for this decision. In addition, the facts and
circumstances of the earlier case, which are identical here, are the basis for my determination
that MSHA does properly maintain jurisdiction of the Maxxim fabrication facility. This case,
therefore, should be consolidated, or otherwise decided along with the case on appeal to the
Commission.
a. Jurisdiction
In the first Maxxim decision, the mine asserted that the Secretary did not have
jurisdiction in this matter because the facility is not a “mine” as contemplated by the Act, its
activities are too remote from the mining process, the facility repairs and rebuilds mining
equipment for Alpha Resources and on a limited basis for other mine operators, and MSHA has
inconsistently applied jurisdiction over the site and similarly situated repair shops. In response,
the Secretary argued that, due to the nature of the work performed at the facility, it is a “mine”
and, accordingly, is within the jurisdictional reach of the Act. I agreed with the Secretary and
found that the fabrication facility is a mine, relying primarily on Jim Walters Resources,
(“JWR”), 22 FMSHRC 21 (Jan. 2000) in which the Commission addressed a situation similar to
the instant one. Given that this Maxxim fabrication shop is the one addressed in the earlier
Maxxim decision, the reasoning and findings in the earlier case are applicable here and I find
that the Maxxim facility is subject to MSHA jurisdiction.
b. Citation No. 8289289
On June 19, 2013, Inspector Randal Thornsbury issued Citation No. 8289289 to Maxxim
for a violation of section 77.505 of the Secretary’s regulations. The cited standard requires that
cables “[s]hall enter metal frames of motors, splice boxes, and electric compartments only
through the proper fittings…” 30 C.F.R. § 77.505. The citation alleged that “[p]ower leads of
the 480 volt AC Co. No. 2 heater …are not properly entranced into the metal framing”.
Thornsbury determined that an injury was unlikely to occur, that one employee was affected, and
that the negligence was moderate. A civil penalty in the amount of $100.00 has been proposed
for this violation.
According to the stipulations of the parties, Maxxim does not dispute the facts of the
violation and only disputes the jurisdiction over the facility. The parties agree that the $100.00
penalty as proposed is appropriate pursuant to the criteria set forth in Section 110(i) of the Act.
(Joint Stip. 9,10.) Therefore, I affirm the violation as issued and assess a $100.00 penalty.
c. Citation No. 8289290
Inspector Thornsbury issued Citation No. 8289290 to Maxxim for an alleged violation of
section 77.502 of the Secretary’s regulations. The cited standard requires that electrical
equipment “shall be frequently examined, tested and properly maintained by a qualified
person…” 30 C.F.R. §77.502. The citation alleged that the Lincoln 600 volt MIG welder was
not being maintained because the insulated outer jacket of a positive lead was damaged.
Thornsbury determined that an injury was unlikely to occur, that one employee was affected and

36 FMSHRC Page 379

that the negligence was moderate. A civil penalty in the amount of $100.00 has been proposed
for this violation.
The mine operator has agreed and stipulated that there is no dispute as to the fact of the
violation and that the operator only disputes the jurisdiction over the facility. (Joint Stip. 12.)
The parties further agree that the $100.00 penalty is appropriate under the criteria set forth in
Section 110(i) of the Act. (Joint Stip. 13.) Accordingly, I find that the violation occurred as
cited, the citation is affirmed and a penalty of $100.00 is assessed.
II. PENALTY
The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The Act requires that, “in assessing civil monetary
penalties, the Commission [ALJ] shall consider” six statutory penalty criteria which includes the
previous history of violations, the size of the operator, the negligence, gravity and good faith
abatement.
The history of assessed violations was not addressed in the stipulations but the MSHA
website indiates very few violations at this mine. The operator has stipulated that the penalties
as proposed will not affect its ability to continue in business. The gravity and negligence of each
violation is discussed above and the operator demonstrated good faith in abatement. As noted
above, I assess a total penalty of $200.00.
III. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C.§ 820(i), I assess the
penalties listed above for a total penalty of $200.00. Maxxim Rebuild Company, LLC is hereby
ORDERED to pay the Secretary of Labor the sum of $200.00 within 30 days of the date of this
decision.

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

36 FMSHRC Page 380

Distribution:
Mary Sue Taylor, Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite
230, Nashville, TN 37219-2456
R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite 1340,
Pittsburgh, PA 15222

36 FMSHRC Page 381

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH St., Suite 443
Denver, CO 80202
TELEPHONE: 303-844-1614 / FAX: 303-844-5268

February 13, 2014
:
:
:
:
:
:
:
:
:

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,
v.
WEBSTER COUNTY COAL, LLC,
Respondent.

CIVIL PENALTY PROCEEDING
Docket No. KENT 2012-438
A.C. No. 15-02132-275499

Mine: Dotiki Mine

DECISION AND ORDER
Appearances:

Thomas Motzny, Office of the Solicitor, U.S. Department of Labor,
618 Church Street, Suite 230, Nashville, TN 37219 for Petitioner
Tyler H. Fields, Alliance Coal, LLC
771 Corporate Drive, Suite 500 Lexington, KY 40503 for Respondent

Before:

Judge Simonton

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against Webster County
Coal, LLC pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). This docket originally involved 34
contested violations with a total proposed penalty of $71,623.00. The parties settled 31 of the
contested violations prior to hearing. The parties presented testimony and documentary evidence
on the remaining 3 citations at hearing in Madisonville, Kentucky commencing on November 13,
2013.
I. ISSUES FOR ADJUDICATION
At hearing, the parties contested the following main issues. For Citations No. 8503536
and 7656891, did the Secretary show that automatic dump dust skirts were missing from roof
bolting machines for more than one maintenance shift in violation of the mine’s approved
ventilation plan? If not, did the Secretary demonstrate that WCC’s ventilation plan required
immediate repair of completely missing automatic dump dust skirts? Did the Secretary
demonstrate that the missing dust skirts were Significant and Substantial (S&S) violations of 30
CFR § 73.370(a)(1) and WCC’s ventilation plan?

36 FMSHRC Page 382

For Citation No. 7656922, did the Secretary demonstrate that the roof bolter hydraulic oil
leak violate separate and distinct duties under the Mine Act, allowing the Secretary to cite WCC
for violations of both 30 CFR § 75.400 and 30 CFR CFR § 75.1725 (a)? Was the hydraulic oil
leak an S&S violation that exposed miners to a reasonable likelihood of suffering a significant
injury?
II. BACKGROUND
Webster County Coal, LLC, (“WCC”) operates the Dotiki mine (the “mine”) in
Hopkins County, Kentucky. The mine is an underground bituminous coal mine subject to
regular quarterly inspections by the Secretary’s Mine Safety and Health Administration
(“MSHA”) pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a). The mine is classified as a
large mine by MSHA and produced 3.6 million tons of coal in 2011. The parties stipulated that
Webster County Coal is the operator of the mine, that its operations affect interstate commerce,
and that the mine is subject to the jurisdiction of the Mine Act. The mine utilizes the room and
pillar system of mining.
The three remaining contested violations in Docket KENT 2012-438 include two
citations for alleged failures to comply with the mine’s mandatory ventilation plan, and one
citation for an alleged failure to maintain equipment in a safe operating condition. MSHA
inspectors designated all three of these 104(a) citations as “Significant and Substantial” or S&S
violations of the Mine Act.
III. CITATION Nos. 8503536 and 7656891
On May 18, 2011, MSHA Inspector Alan Frederick issued Citation No. 8503536 to WCC
for a violation of Section 73.370(a)(1) of the Secretary’s regulations. The citation alleges in part
that:
The approved ventilation and dust control plan was not being
followed on the # 2 unit, MMU-027-0, 2nd Southeast Sub mains.
The skirt for the automatic roof dust systems on the opposite
operator side of the DBT roof boofbolter, CO# 6047 was missing.
Page #2, item 21 of the plan states that these bolters will be
equipped with skirts on the automatic dump…
Ex. 1, 1.
Inspector Frederick found that an injury was reasonably likely to occur and would result in a
permanently disabling injury, that the violation was S&S, that two persons would be affected,
and that the violation was the result of moderate negligence on the part of the operator. Ex. 1, 1.
On June 6, 2011, MSHA Inspector Ronnie Rich issued Citation No. 7656891 to WCC for
a violation of Section 73.370(a)(1) of the Secretary’s regulations. The citation alleges that:

36 FMSHRC Page 383

The approved ventilation and dust control plan was not being
followed on the 1 2 unit, MMU-031-0 4th S.E. Panel. The skirts for
the automatic roof dust dump system on both the operator and
opposite operator sides of the DBT double boom roof bolter, Co.
#6043 were missing. Page #2, item 21 of the plan states that these
bolters will be equipped with skirts on the automatic dump…
Ex. 4, 1.
Inspector Rich found that an injury was reasonably likely to occur and would result in a
permanently disabling injury, that the violation was S&S, that two persons would be affected,
and that the violation was the result of moderate negligence on the part of the operator. Ex. 4, 1.
A. Statement of Law
1. The Regulation
30 CFR § 75.370 (a)(1) states in part that:
The operator shall develop and follow a ventilation plan approved
by the district manager. The plan shall be designed to control
methane and respirable dust and shall be suitable to the conditions
and mining system at the mine…
30 CFR § 75.370 (a)(1).
The relevant part of the Dotiki Mine ventilation plan in effect at the time of the citation
required that:
Roof bolters will be equipped with skirts on the automatic dump. If
this skirt becomes damaged it will be repaired on the next
maintenance shift.
Ex. 3: Part B, 2.
2. Interpretation
Mandatory site specific safety plans, including ventilation plans, are enforceable as
mandatory standards. UMWA v. Dole, 870 F. 2d 662, 671 (D.C. Cir. 1989); Ziegler Coal Co. v.
Kleppe, 536 F. 2d 298, 409 (D.C. Cir. 1976); Energy West Mining Co., 17 FMSHRC 1313, 1317
(Aug. 1995).
Because MSHA-required site specific safety and health plan provisions are enforceable
as mandatory standards,
the operator is entitled to the due process protection available in
the enforcement of regulations... When a violation of a regulation

36 FMSHRC Page 384

subjects private parties to criminal or civil sanctions, a regulation
cannot be construed to mean what an agency intended but did not
adequately express. Laws must give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited,
so that he may act accordingly
Energy West Mining Co., 17 FMSHRC 1317-18 (internal citations omitted).
However, the Secretary is not required to provide the operator actual notice of its
interpretation of a mandatory site specific safety standard, rather,
the Commission has applied an objective standard of notice, i.e.,
the reasonably prudent person test. The Commission has
summarized this test as ‘whether a reasonably prudent person
familiar with the mining industry and the protective purposes of
the standard would have recognized the specific prohibition or
requirement of the standard.’
Energy West Mining Co., 17 FMSHRC 1318 (internal citations omitted).
3. Burden of Proof
The Commission has long held, “In an enforcement action before the Commission, the
Secretary bears the burden of proving any alleged violation.” Jim Walter Resources, Inc., 9
FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (August 1992).
The Commission has described the Secretary’s burden as:
“the burden of showing something by a ‘preponderance of the
evidence,’ the most common standard in the civil law, simply
requires the trier of fact ‘to believe that the existence of a fact is
more probable than its nonexistence.”
RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152 (Nov. 1989).
The Secretary may establish a violation by inference in certain situations. Garden Creek
Pocahontas Co., 11 FMSHRC 2153. Any such inference, however, must be inherently
reasonable, and there must be a rational connection between the evidentiary facts and the
ultimate fact inferred. Mid-Continent Resources, 6 FMSHRC 1132, 1138. (May 1984).
If the Secretary has established facts supporting the citation, the burden shifts to the
respondent to rebut the Secretary’s prima facie case. Construction Materials, 23 FMSHRC 321,
327 (March 2001) (ALJ Feldman).

36 FMSHRC Page 385

4. Significant and Substantial
A violation is 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 Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981).
In order to uphold a citation as S&S, the Commission has held that the Secretary of
Labor must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).
B. Testimony and Party Arguments
1. The Secretary
MSHA Inspector Alan Frederick testified that he issued citation No. 8503536
approximately 4 hours into the morning production shift on May 18, 2011. Tr. 14-16. Frederick
stated that he observed a missing dust dump skirt on the opposite operator side of the # 6047
DBT roofbolter while it was parked. Tr. 15-16. Based on his observations at the time of the
citation, Frederick did not believe that the roof bolter had been operated during that production
shift. Tr. 15. Fredrick acknowledged that he did not have direct evidence for this conclusion, but
stated that the dusty color of the exposed dump column indicated that the skirt had been missing
for some time. Tr. 28, 57.
Frederick further testified that when he asked roof bolter operators how long the skirt had
been missing, the operators replied that they didn’t know. Tr. 19. Frederick stated that the shift
before this day production shift had been a maintenance shift. Tr. 20.
Frederick testified that the skirt acted to control dust dumped from the automatic roof
bolter stab jack after a bolt hole had been drilled. Tr. 18. Frederick described the automatic dump
as located within a foot and a half of the bolter operator. Tr. 20. Frederick stated that at the
Dotiki mine, the dust skirt was constructed of flexible ventilation curtain attached to the dump
with a hose clamp. Tr. 19.
Frederick further explained that the opposite operator side of the roofbolter was a
designated area that MSHA dust sampling inspections had previously determined to present
elevated respiratory hazards. Tr. 22-23. Frederick stated that a roof bolter could drill up to 200
bolts in a standard shift. Tr. 21. Frederick testified that he had rarely observed roof bolt operators
use dust masks or respirators at the Dotiki mine. Tr. 16. On cross examination, Frederick
acknowledged that the DBT roofbolter was equipped with a cyclone vacuum system designed to
filter smaller respirable dust into a protected dust box so that the dust dumped out of the
automatic dump was “less respirable.” Tr. 29-30.

36 FMSHRC Page 386

Frederick believed that the Dotiki ventilation plan required operators to replace missing
skirts immediately as the plan required that roof “bolters will be equipped with a skirt or skirts
on the automatic dump.” Tr. 18. Frederick stated that according to his interpretation of the
Dotiki ventilation plan, WCC had until the next maintenance shift to repair present but damaged
skirts, but must immediately replace completely absent skirts. Tr. 26. Frederick stated that
regardless of whether a skirt was damaged or missing, the standard method of “repair” for both
conditions was to install an entirely new skirt. Tr. 25-26, 65. On cross-examination, Frederick
conceded that a badly damaged skirt was no more effective at controlling dust than a completely
missing skirt. Tr. 34.
Frederick based his gravity designations on the close proximity of the automatic dust
dump to the roof bolter operator and concern that exposure to elevated levels of respirable dust
would lead to silicosis and pneumosilicosis. Tr. 21-22.
MSHA Inspector Ronnie Rich testified that he issued Citation No. 7656891 towards the
end of the midnight maintenance shift on early Monday morning June 6, 2011 at approximately
4:00 am. Tr. 78. Rich stated that he observed that both the operator and opposite operator side
automatic dump skirts were missing on the # 6043 DBT roofbolter. Tr. 78-79. Rich stated that as
this inspection occurred during the Sunday/Monday midnight maintenance shift, WCC had
worked several maintenance shifts since the last production shift on the previous Friday day
production shift. Tr. 76. Rich based this conclusion on conversations with WCC maintenance
supervisors, in which they told Rich that they worked every mechanic available through the
weekend maintenance shifts. Tr. 76-77.
When Rich asked the mechanic in the area if he was going to fix the missing skirt, the
mechanic replied, “It’s not on my list.” Tr. 82. Rich further testified that to his knowledge,
standard procedure on maintenance shifts was to provide every mechanic with an identical unit
wide list of necessary repairs. Tr. 84.
Rich stated that this roof bolter was an older model that ran “hot”, a condition that in his
experience, led roof bolters to not wear respirators and to breathe more rapidly. Tr. 87. Rich
testified that the return side of all roof bolters were designated areas, due to previous excessive
respirable dust levels or high quartz content results. Tr. 89-90. Rich also noted that the Dotiki
mine was the only mine he inspected that used the ventilation skirt/hose clamp configuration to
provide dust skirts on the automatic dump. Tr. 125. Rich based his gravity designations for
Citation No. 7656891 on the proximity of the automatic dump to the bolter operator, the high
number of bolts drilled in a production shift, and the possibility of miners developing black lung
from exposure to respirable dust. Tr. 87-89.
MSHA Health Specialist Hubert Wright testified regarding the hazards of respirable dust
in underground coal mines. Wright described respirable dust as any dust particle 10 microns or
smaller. Tr. 135. At that small size, respirable dust can be breathed deeply into the lungs to
where it damages small air sacs and prevents oxygen exchange. Tr. 135. Wright explained that
respirable dust is associated with both pneumoconiosis and silicosis. Pneumoconiosis is
commonly referred to as black lung, and the negative effects of the disease can be halted but not
cured by removing affected miners from exposure. Tr. 136. Silicosis is caused by the exposure to

36 FMSHRC Page 387

silica particles, commonly referred to as quartz. Tr. 136. Silicosis results in a progressively
worsening illness as hardened crystalline particles are drawn deeper and deeper into the lungs
even without continued exposure. Tr. 136.
Wright stated that roof bolters generate significant amounts of respirable dust, including
silica, during the drilling process. Tr. 137. On cross-examination, Wright acknowledged that dust
produced by continuous miners could have previously led MSHA to designate roof bolters as
designated areas. Tr. 151. However, Wright stated that if the automatic dump skirts are not
present, a significant dust cloud is generated and that dust can enter the air stream of the roof
bolter. Tr. 140. Wright testified that automatic dump dust contained respirable dust, as the
cyclone vacuum system on roof bolters was not a 100% effective system in removing respirable
dust from the automatic dump. Tr. 140. Wright primarily based this conclusion upon a National
Institute of Occupational Safety and Health article that found roofbolter automatic dump dust in
underground Appalachian coal mines contained respirable dust in concentrations from 5 to 35
percent. Tr. 143-144; Ex. 9, 5. Wright further stated that this article had been prepared in
response to a rise in respiratory illnesses in coal miners in Appalachia. Tr. 142.
Wright acknowledged that the NIOSH article did not study mines in western Kentucky
where the Dotiki mine is located.1 Tr. 144. However, he stated that the basic geologic
composition of coal seam roofs are fairly consistent, formed by layers of shale, limestone, and
sandstone. Tr. 143. On cross-examination, Wright conceded the Dotiki mine was located in a
different geologic region, the Illinois Basin, as compared to the Southern Appalachia region
studied in the NIOSH article. Tr. 154. Wright also conceded that the article studied a different
brand of roof bolter and cyclone vacuum system than used at the Dotiki mine. Tr. 157. Still,
Wright did not believe that distinction diminished the relevance of the NIOSH article, as both
systems used a similar design and sought to control the same hazard: dust produced by drilling
into the coal seam roof. Tr. 161. Wright also stated he was not aware of the specific roof
composition of either the Dotiki mine or the mines studied in the NIOSH article. Tr. 155.
Nonetheless, Wright believed the NIOSH article was still “good information,” as both Dotiki
and the NIOSH study area were bituminous type coal mines. Tr. 167.
In his post-hearing brief, the Secretary first asserts that the language of the ventilation
plan required WCC to immediately replace missing dust skirts as the first sentence states, “Roof
bolters will be equipped with skirts on the automatic dump.” Sec’y Br. 4. According to the
Secretary’s interpretation, the second sentence allowing WCC until the next maintenance shift to
repair “damaged” skirts only operates if at least some part of the dust skirt is physically present.
Sec’y Br. 5.

1

The NIOSH Article included mines in MSHA Coal districts encompassing Central
Kentucky, Eastern Kentucky, South Central West Virginia, and all of Tennessee, North Carolina,
South Carolina, and the Commonwealth of Virginia. Immediately prior to hearing the
Respondent attempted to exclude consideration of this study in this case via a Motion in Limine.
On November 12, 2013 I denied Respondent’s motion for reasons detailed in both the Order and
as discussed below.

36 FMSHRC Page 388

The Secretary also argues that regardless of how the ventilation plan is interpreted,
evidence indicates the skirts had been missing for more than a full maintenance shift in both
citations. Sec’y Br. 7. The Secretary notes that although Inspector Frederick issued Citation No.
8503535 only several hours into a production shift that followed a full maintenance shift, the
roof bolter operator was not aware how long the skirt had been missing. Sec’y Br. 7; Tr. 19. The
Secretary also points out that when Inspector Rich issued Citation No. 7656891 during a
maintenance shift that followed another maintenance shift, the mechanic in the area stated that
replacing the skirt was not on the shift maintenance list. Sec’y Br. 7; Tr. 83-84.
2. WCC
Shift Maintenance Foreman Bobby Nall testified about standard maintenance procedures
and the operation of the roofbolter automatic dump system. Nall stated that the dust skirts were a
common maintenance item that were routinely replaced during the maintenance shift. Tr. 209.
Nall explained that the skirts were not recommended by the roof bolter manufacturer and had
been retro-fitted per MSHA instruction. Tr. 222. Nall described that as the cyclone vacuum
system switched on and off during the drilling/dump cycle, the tube the skirt was attached to
contracted and expanded, loosening the hose clamp and eventually causing the skirt to fall off.
Tr. 216-17. Nall explained that the maintenance department tried fabricating different attachment
methods, but were unable to find a design that kept the skirt on consistently. Tr. 217. Nall did not
believe there was any difference between a damaged skirt and a missing skirt, and stated he did
not believe even an intact skirt did any good. Tr. 221.
Nall described the skirt replacement procedures in detail. Replacing the dust skirts safely
required tramming the bolter to an intersection where the operator could swing the booms out
fully. Tr. 219. Once the operator had swung the booms, the operator would de-energize the bolter
to allow miners to replace the skirts without being exposed to dangerous pinch points. Tr. 220.
Replacing dust skirts on a maintenance shift allowed repairs to be made without exposure to the
shuttle car and scoop traffic present on production shifts. Tr. 220-21.
On cross-examination, Nall stated that he was not present during either of the citations
and did not have any specific knowledge of when the skirts had gone missing. Tr. 227-28. Nall
also confirmed that the mechanics on each unit worked off an identical maintenance to do list.
Tr. 238. However, Nall stated that if a maintenance mechanic found a repair item not on the
official list, he would either repair the issue himself or add it to the next shift’s list. Tr. 239-40.
Nall explained that while anyone could theoretically repair a missing skirt, many production
workers focused on their normal tasks and would most likely add a missing skirt to the
maintenance shift repair list. Tr. 248-49.
WCC Safety Director Gunn testified on the equipment inspection procedures in place at
the Dotiki mine. Gunn stated that certified mechanics conducted detailed weekly permissibility
exams while roofbolter operators conducted dust parameter checks before beginning production
on each shift. Tr. 263. Gunn confirmed that a weekly permissibility exam was conducted for the
# 6047 roof- bolter on May 11, 2011, seven days before Citation No. 8503536 was issued. Tr.
263; Ex. B, 1. Gunn also confirmed that a weekly permissibility exam was conducted for the #
6043 roof-bolter on June 2, 2011, four days before Citation No. 7656891. Tr. 267; Ex. C, 1.

36 FMSHRC Page 389

Gunn stated that for each permissibility exam, the certified mechanic affirmed that there were no
hazardous dust conditions found during the permissibility exam. Tr. 268. According to Gunn, the
mechanic would have noted missing dust skirts if they had been missing at the time of the
permissibility inspection. Tr. 268.
On cross-examination, Gunn conceded that the permissibility exams did not specifically
require a check on the dust skirts. Tr. 293. Gunn also confirmed that multiple maintenance and
production shifts had occurred between the last permissibility exam and the time citations were
issued for both Citation Nos. 8503536 and 7656891. Tr. 298-299. However, Gunn stated that a
dust skirt check was required as part of the dust parameter exam. Tr. 308. Gunn explained that no
official record of dust parameter checks were kept, and that dust parameter exams were only
tracked underground on a chalkboard at an underground maintenance shack. Tr. 265. Gunn also
stated that while pre-shift and on-shift exams were officially recorded, they did not record issues
with dust-skirts. Tr. 311.
Gunn stated that the automatic dust dump was located outby or behind the roofbolt
operator in relation to the face of the cut. Tr. 258. Gunn also testified that the Dotiki ventilation
system and roof bolter blower fans pulled air away from the roof bolter operator and made it
unlikely that operators would be exposed to automatic dump dust. Tr. 273, 275.
Gunn interpreted the Dotiki ventilation plan as allowing WCC until the next maintenance
shift to repair/replace damaged or missing skirts. Tr. 276-77. Gunn stated that prior to these
citations, he had observed MSHA inspectors allow WCC until the next maintenance shift to
replace missing skirts. Tr. 278-79.
In their post-hearing brief, WCC argues the Dotiki ventilation plan did not require them
to replace missing skirts immediately, but allowed them until the next maintenance shift to
replace missing skirts, just as they were allowed until the next maintenance shift to replace
damaged skirts. Respondent’s Br., 4. WCC points out that the text of the ventilation plan does
not state it is necessary to replace missing skirts immediately, and contends that “missing” is
commonly defined as a type of damage. Respondent’s Br., 5. WCC also argues that given
MSHA’s past acceptance of repairing missing skirts on the next maintenance shift at the Dotiki
mine, and the absence of any prior explicit instructions regarding this provision, this court should
decline to give the Secretary’s current interpretation any deference. Respondent’s Br., 7.
WCC states that MSHA Inspectors Frederick and Rich could not establish when the dust
skirts went missing from the roof-bolters. Respondent’s Br. 6; Tr. 28-29; Tr. 107-108. WCC
further states that no evidence supports an inference that the skirts were missing prior to the last
maintenance shift before the citations were issued. Respondent’s Br. 6. WCC finally asserts that
it would be improper burden shifting for this court to sustain these violations on a finding that
WCC did not establish that skirts were attached after the last maintenance shift prior to these
citations. Respondent’s Br., 6.

36 FMSHRC Page 390

3. Relevance of the NIOSH Article
At hearing, the Secretary entered the NIOSH article into evidence in an attempt to
demonstrate that automatic dump dust contained a respirable dust component and note a recent
increase of respiratory illnesses in other underground bituminous coal mining areas. Prior to
hearing and during cross-examination, WCC contested the relevance of the NIOSH study to
these proceedings. In summary, WCC argues that the article’s findings are not relevant to these
proceedings because Dotiki is located in a different geologic region from the article study area.
I find WCC’s distinction unconvincing. The NIOSH article was conducted in
underground bituminous coal mines, including mines in central Kentucky and Tennessee. Ex. 9,
3. The Dotiki Mine is an underground bituminous coal mine in western Kentucky. Thus, the
study examined similar types of roof bolter machines in similar underground bituminous coal
mines in areas adjacent to the western Kentucky region. Although it has presented hypothetical
examples of possible variations, WCC has not presented any evidence of significant differences
between the study area and the Dotiki Mine. Tr. 154-155; 167. Therefore, I find it reasonable to
consider the general finding of the NIOSH article, that roofbolter automatic dump dust contains
significant amounts of respirable dust, while determining the validity and gravity of these
citations.
Furthermore, the connection between respirable dust and respiratory illnesses is far from
a novel concept to the Commission. In 1980, a Commission ALJ explained,
Coal workers' pneumoconiosis--black lung disease--affects a high
percentage of American coal miners with severe, chronic, and
crippling respiratory impairment. The disease, which in its
advanced form is inevitably fatal, is caused by long-term inhalation
of respirable mine dust, including coal dust…
Black lung disease is an occupational disease that afflicts the lives
of thousands of miners and their families. Various studies show
that between 10 and 30 percent of all working bituminous coal
miners have some form of the disease. Every miner lives under the
threat of black lung and thousands die of it every year. … more
than 11 miners each day wheeze away their final breath as a result
of black lung.
Kanawa Coal, 2 FMSHRC 1658, 1659 (June 1980) (ALJ Kennedy).
This description of the pervasive effects of black lung throughout the coal industry,
particularly among bituminous coal miners, indicates that respiratory illnesses and respirable
dust are not anomalous or particularly region specific hazards. While the coal-mining industry
has certainly made significant strides in preventing respiratory illnesses in the decades since this
ruling, the mechanisms of black lung and silicosis remain unchanged. As such, I have considered
the general findings of the NIOSH article in my holdings while taking the alleged variances
between the study area and the Dotiki mine into account in terms of the article’s weight.

36 FMSHRC Page 391

C. Findings
1. Ventilation Plan Interpretation
WCC argued at great lengths that the Dotiki ventilation plan did not explicitly require
immediate replacement of missing dust skirts and contended that missing skirts could be
replaced on the next maintenance shift following the damage per the plan. The Secretary argued
that when read as a whole, the ventilation plan required immediate replacement of missing
skirts, as the ventilation plan required automatic dump skirts to be “equipped” with dust skirts.
For the reasons stated below, I find that even under its own interpretation of the dust skirt
provision, WCC failed to repair the missing skirts in the next maintenance shift following the
damage. Therefore, I decline to determine the proper interpretation of the ventilation plan in
effect at the time of the citation, as this interpretation is not necessary to my ultimate findings.
2. Citation No. 8503536
MSHA Inspector Frederick credibly testified to the following regarding Citation No.
8503536:
1.) The citation was issued at 10:00 AM on Wednesday May 18, 2011. Tr. 15.
2.) The citation was issued approximately four hours into a production shift that immediately
followed a regularly scheduled midnight maintenance shift. Tr. 20.
3.) An automatic dump dust skirt was missing on the #6047 DBT roof-bolter machine. Tr. 16.
4.) The roof bolter was parked and not running at the time of the citation. Tr. 15.
5.) The unit roof-bolter operators did not know how long the dust skirt had been missing. Tr. 19.
6.) The exposed dump column was noticeably dusty where the skirt would normally be. Tr. 57.
WCC has not disputed any of these factual descriptions. WCC has disputed Inspector
Frederick’s conclusion that the roofbolter machine had not been operated during the May 18
morning production shift. WCC points out that Frederick could not recall whether or not the
bolter was parked at an intersection or was located at an active face. Tr. 45-46. WCC also
contends that it was possible for the exposed dust column to have taken on the dusty color during
the morning production shift. Tr. 60-61.
WCC personnel testified that weekly permissibility exams, pre-production dust parameter
checks, pre-shift exams and on-shift exams were all regularly conducted by WCC personnel in
order to identify dust hazards including missing or damaged skirts. Tr. 263. WCC relies upon
these inspections to argue that the dust skirt was most likely on the roof-bolter at the beginning
of the May 18 morning production shift and somehow fell off before Inspector Rich inspected
the roof-bolter. Tr. 28.
However, I find that WCC’s arguments do not effectively rebut the evidence presented by
the Secretary. According to WCC personnel, of the four inspection types listed by WCC, only
the dust parameter exam included a specific check for dust skirts. Tr. 293, 311. Additionally,
WCC personnel stated that they did not keep an official written record of the dust parameter
exam. Tr. 265. The permissibility exam entered into evidence by WCC for the #6047 roofbolter

36 FMSHRC Page 392

did not indicate a specific check for dust skirts and was conducted several maintenance shifts in
advance of this citation. Tr. 298-99. As such, I give the permissibility exam very little weight in
determining whether or not the dust skirt was present on the roof-bolter at the beginning of the
May 18 morning production shift.
While the Secretary has not produced direct evidence of when the skirt fell off, several
undisputed factual descriptions support the Secretary’s conclusion that the skirt was not in place
at the beginning of the May, 18, 2011 morning production shift. The #6047 roofbolter was
parked and not running at the time of the inspection, decreasing the likelihood that the skirt had
recently been knocked off during active roof-bolting or tramming activities. Tr. 15. Similarly, the
exposed dump column was noticeably dusty, indicating that the skirt had been missing for at
least some amount of time. Tr. 57. Given that the roofbolter was parked and not bolting, I find
Inspector Frederick’s statement that it was unlikely for the column to become dusty in just a few
hours to be a reasonable conclusion. Tr. 61.
The statement from the roofbolter operators that they did not know how long the dust
skirt had been missing undercuts WCC’s contention that dust parameter and pre-shift exams
would have ensured that the dust skirt was in place at the beginning of the production shift. If the
dust skirt had been on at the beginning of the production shift as required, and the roof bolter
operators had conducted a thorough dust parameter exam that morning, the operators would have
had some idea of when the dust skirt had fallen off. Instead, when asked by Inspector Frederick
how long the skirts had been missing, the operators replied that they didn’t know. Tr. 19.
The parked condition of the roof-bolter, the dusty color of the dump column, and the
roof-bolter operators’ inability to provide a timeframe for when the skirt fell off, all support the
Secretary’s assertion that the dust skirt was not on the roof bolter at the beginning of the May 18
morning production shift. As the previous shift was a regularly scheduled maintenance shift, I
find that the dust skirt likely fell off during a prior production shift and WCC failed to replace
the missing skirt during the intervening maintenance shift. I make this finding after determining
that the Secretary produced sufficient evidence to establish a prima facie case of a violation and
concluding that WCC did not present convincing evidence to the contrary.
In doing so, I am not discounting WCC personnel testimony regarding extensive
maintenance and inspection efforts in general. Both Foreman Nall and Gunn testified credibly
and competently regarding their efforts to ensure compliance with the dust skirt provision of the
ventilation plan. Tr. 209, 263. However, the Mine Act is a strict liability statute and the
operator’s genuine efforts to comply with the standard do not shield it from liability if the
Secretary demonstrates a dust skirt was indeed missing for more than one maintenance shift
without being repaired.
As such, I hold that WCC did in fact violate 30 CFR § 75.370 (a)(1) and its ventilation
plan in failing to repair a damaged dust skirt in the next maintenance shift following the damage.
I also find that Citation No. 8503536 was an S&S violation of WCC’s duties under the
Mine Act. As noted earlier, the ventilation plan provision operates as a mandatory safety
standard and is enforceable as such. If not replaced, the missing dust skirts would expose

36 FMSHRC Page 393

roofbolter operators to an increased amount of respirable dust, a discrete safety hazard. As
discussed above, there is a reasonable likelihood that this over-exposure to respirable dust will
result in injury as respirable dust has been consistently linked to respiratory illnesses such as
black lung and silicosis. Additionally, black lung and silicosis far exceed the definition of an
injury of a reasonably serious nature, as they are irreversible illnesses that result in debilitating
respiratory complications and even death. For these reasons, I find that the Secretary has shown
that this violation meets the four element Mathies test for S&S violations.
For the reasons just discussed regarding the likelihood and severity of permanently
disabling respiratory illnesses, I find the likelihood of injury as “Reasonably Likely” and the
severity of injury to be “Permanently Disabling.” I find that 2 miners were affected by this
violation, as Inspector Frederick credibly testified that the missing dust skirts allowed roof
bolter dump dust to circulate within several feet of the two operators that manned the automatic
roof bolting machine. Tr. 20, 24.
While the testimony at hearing indicates that the skirts had been missing for at least one
entire maintenance shift, I also note that WCC personnel credibly testified that the dust skirts
were partially enclosed during operations and difficult to replace without opening up the roof
bolting booms. Tr. 20, 219. For these reasons, I find that Citation No. 8503536 was the result of
“Moderate” negligence on the part of WCC.
After making these findings and reviewing the six penalty criteria set forth in set forth in
section 110(i) of the Act, I uphold the Secretary’s originally assessed civil monetary penalty of
$2,473.00 for Citation No. 8503536.
3. Citation No. 7657891
MSHA Inspector Ronnie Rich testified credibly to the following regarding Citation No.
7656891.
1. The citation was issued at 3:35 AM on Monday June 6, 2011. Tr. 78.
2. The citation was issued approximately six hours into a regularly scheduled midnight (3rd
shift ) maintenance shift. Tr. 78.
3. The last production shift before this maintenance shift had occurred on Friday evening (2nd
shift) June 3, 2011. Tr. 76.
4. WCC management had worked several maintenance shifts over the June 4-5 weekend. Tr.
76-77.
5. Both the operator and the opposite operator side automatic dump dust skirts were missing on
the #6043 DBT roofbolter. Tr. 78-79.
6. A unit mechanic in the area informed Inspector Rich that replacing the missing skirts was
“Not on my list.” Tr. 82.
WCC has not disputed any of these factual descriptions. WCC has argued that the
maintenance shifts that occurred during the weekend of June 4-5 were not regularly scheduled
maintenance shifts. Tr. 97-98. WCC also contended on cross-examination that the Dotiki

36 FMSHRC Page 394

ventilation plan allowed WCC the entire next maintenance shift after a production shift to repair
damaged/missing skirts. Tr. 112.
WCC’s reliance on these arguments is misplaced. The ventilation plan requires WCC to
replace damaged skirts on the “next maintenance shift” and makes no reference or allusion to so
called “regularly scheduled” maintenance shifts discussed by WCC during hearing. Inspector
Rich credibly testified that WCC management informed him they had worked every available
mechanic over several shifts on the weekend of June 4-5. Tr. 76-77. As such, I find that WCC
had worked at least one full maintenance shift after the Friday June 3rd evening production shift
before the Sunday/Monday midnight maintenance shift in question even started. Thus, the
evidence presented by the Secretary indicates that WCC failed to replace missing dust skirts
during the next maintenance shift following a production shift as required by their ventilation
plan.
Furthermore, while it is not critical to my ultimate holding, I do not fully accept WCC’s
contention that MSHA could not cite WCC for failure to replace a missing dust skirt until the
entire maintenance shift has elapsed and a new production shift had begun. I do agree with WCC
that it would be unreasonable for MSHA to cite WCC for failure to replace a damaged skirt if
only a small amount of the maintenance shift had passed and WCC demonstrated a specific plan
to replace that missing skirt. However, this is not the set of circumstances I have before me in
this citation.
In this case, nearly six hours of the eight hour Sunday/ Monday midnight maintenance
shift had elapsed and the WCC mechanic in the area indicated he had no plans of replacing the
missing skirts when he informed Inspector Rich that replacing the skirt was “Not on my list.” Tr.
78, 82. As the ventilation plan allowed WCC to work up to two production shifts before
repairing damaged/ missing skirts on the next maintenance shift following damage, MSHA
Inspector Rich was right to evaluate the likelihood of WCC replacing the missing skirts during
the maintenance shift based upon his interaction with the WCC mechanic.
As discussed for Citation No. 8503536, I am not discounting Shift Foreman Nall’s and
Safety Director Gunn’s credible testimony regarding WCC maintenance and inspection
procedures as without merit. However, the only documented inspection presented to this court
regarding the # 6043 roofbolter was a permissibility exam conducted on Thursday June 2, 2011
four days prior to the inspection leading to issuance of the citation. Tr. 267; Ex. C, 1.
Even if I take this permissibility inspection as conclusive evidence that the automatic dust
dumps were equipped with dust skirts on this date despite the fact the permissibility exam does
not specifically require a check on the dust skirts, the obvious fact remains that dust skirts were
not on the #6043 roofbolter on the early morning of the Sunday/ Morning midnight maintenance
shift. As such, the dust skirts must have fallen off during the Friday production shifts, remained
off through the maintenance shifts worked during June 4-5, and continued to remain off the
roofbolter for six hours of the Sunday/Monday midnight maintenance shift without being noted
on the unit repair list or being brought to the attention of the mechanic in the area. For these
reasons, I find that a full maintenance shift had passed since the last production shift and WCC

36 FMSHRC Page 395

had still not, at the time of the inspection, identified the missing skirts as a hazard requiring
repair.
As such, I hold that WCC did in fact violate 30 CFR § 75.370 (a)(1) and its ventilation
plan in failing to repair a damaged dust skirt in the next maintenance shift following the damage.
I also find that Citation No. 7656891 was an S&S violation of WCC’s duties under the
Mine Act. As noted earlier, the ventilation plan provision operates as a mandatory safety
standard and is enforceable as such. If not replaced, the missing dust skirts would expose roofbolter operators to an increased amount of respirable dust, a discrete safety hazard. As discussed
above, there is a reasonable likelihood that this over-exposure to respirable dust will result in
injury as respirable dust has been consistently linked to respiratory illnesses such as black lung
and silicosis. Additionally, black lung and silicosis far exceed the definition of an injury of a
reasonably serious nature, as they are irreversible illnesses that result in debilitating respiratory
complications and even death. For these reasons, I find that the Secretary has shown that this
violation meets the four element Mathies test for S&S violations.
For the reasons just discussed regarding the likelihood and severity of permanently
disabling respiratory illnesses, I find the likelihood of injury as “Reasonably Likely” and the
severity of injury to be “Permanently Disabling.” I find that 2 miners were affected by this
violation, as Inspector Rich credibly testified that the missing dump skirt allowed respirable
dust to circulate across the two roof bolt operators. Tr. 88- 89.
While the testimony at hearing indicates that the skirts had been missing for at least one
entire maintenance shift, I also note that WCC personnel credibly testified that the dust skirts
were partially enclosed during operations and difficult to replace without opening up the roof
bolting booms. Tr. 76-77, 219. For these reasons, I find that Citation No. 7656891 was the
result of “Moderate” negligence on the part of WCC.
After making these findings and reviewing the six penalty criteria set forth in set forth in
section 110(i) of the Act, I uphold the Secretary’s originally assessed civil monetary penalty of
$2,473.00 for Citation No. 7656891.
IV. CITATION No. 7656922
On June 7, 2011, MSHA Inspector Michael Dillingham issued Citation No. 7676922 to
WCC for a violation of 30 CFR § 75.1725(a), alleging in part that:
The Bucyrus America Inc. Roof Bolter, CO # 6050, located on # 3
Unit, 030-) MMU was not being maintained in a safe operating
condition in that oil had been allowed to accumulate in the
operators control deck. When measured it was 32 inches in length,
24 inches width and ranged from 0-.25 inches in depth…
Ex. 6, 1.

36 FMSHRC Page 396

Inspector Dillingham found that an in injury was reasonably likely to occur and would result in
lost workdays or restricted duty, that the violation was S&S, that 2 persons would be affected,
and that the violation was the result of moderate negligence on the part of the operator. Ex 6, 1.
On the same day Inspector Dillingham issued Citation No. 7677922, he also issued
Citation No. 8503660, not directly at issue in this docket, alleging that the pooled oil on the
operator deck of roofbolter CO # 6050 violated 30 CFR § 75.400 and presented a hazardous
accumulation of combustible materials. Tr. 177. WCC has subsequently accepted and paid
Citation No. 8503660 in full. Resp. Br, 9.
A.

Statement of Law
1. The Regulations

30 CFR § 75.1725 (a) requires that:
Mobile 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 CFR § 75.1725 (a).
In relevant part, 30 C.F.R. § 75.400 requires that :
… combustible materials, shall be cleaned up and not be permitted
to accumulate in active workings, or on diesel-powered and
electric equipment therein.
30 C.F.R. § 75.400.
2. Interpretation
The Commission has provided the following guidelines for evaluating an alleged violation of 30
CFR § 75.1725:
Under section 75.1725(a), in deciding whether machinery or
equipment is in an unsafe operating condition, the alleged violative
condition is measured against the standard of whether a reasonably
prudent person …would recognize a hazard warranting corrective
action…
Alabama By-Prods. Corp., 4 FMSHRC 2128, 2129 (Dec. 1982).

36 FMSHRC Page 397

3. Duplication
The Commission has ruled that the Secretary may properly assess multiple citations for a
single condition so long as the regulatory standards cited in each violation impose separate and
distinct duties upon the operator. Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378 (March
1993); Western Fuels-Utah, Inc., 19 FMSHRC 994, 1003-05 (Rev. Comm. June 1997).
However, the Commission has vacated citations issued upon the same factual basis under
different standards when the Secretary failed to show that the cited condition violated multiple
duties. Western Fuels Utah Inc., 19 FMSHRC 1005.
4. Significant and Substantial
A violation is 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 Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981).
In order to uphold a citation as S&S, the Commission has held that the Secretary of
Labor must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).
B.

Testimony and Party Arguments
1. The Secretary

At hearing, Inspector Dillingham testified that the Bucyrus roof bolter had significant oil
leaks that caused oil accumulations to build up on the roof bolting machine, the operator’s
control deck, and the operator himself. Tr. 179-180. Dillingham stated that the oil accumulation
on the control deck and operator’s gloves could cause the operator to slip off the controls. Tr.
181. Dillingham acknowledged that he had never heard of an operator losing control of a roof
bolter due to oil accumulations, and that a “deadman pedal” had to be pressed for three seconds
before the operator could begin to tram the roofbolter. Tr. 200-201.
Dillingham also testified that the oil accumulations made it likely that operators entering
and exiting the control deck could possibly slip, bump their elbows and head, or get cuts and
bruises. Tr. 185. Dillingham testified that he had never actually heard of an injury resulting from
a trip and fall from accumulated oil on a roof bolter control deck. Tr. 200. Dillingham stated that
he issued two separate citations after observing the oil accumulation because the pooled oil was
both a fire hazard and a slip hazard. Tr. 178, 180.
The Secretary argued in his post-hearing brief that Citation No. 7656922 is not
duplicative of Citation No. 8503660 that WCC has already accepted and paid in full. Sec’y Br.,

36 FMSHRC Page 398

9. The Sec’y notes that 30 CFR § 75.1725(a) requires operators to maintain equipment in safe
operating order while 30 CFR § 75.400 requires operators to prevent fire risks through
controlling accumulations of combustible materials. Sec’y Br., 9-10.The Secretary states that a
broken tie rod will violate 75.1725(a) but not 75.400, while an accumulation of oily rags will
violate 75.400 but not 75.1725. Sec’y Br., 10. The Secretary also restated Inspector Dillingham’s
concerns of the oil accumulations creating a slip hazard or causing an error in equipment
operation. Sec’y Br., 8.
2. WCC
WCC Shift Foreman Nall and Safety Director Gunn testified for WCC on the operation
of the Bucyrus roofbolter machine. Tr. 220, 279. Nall stated that the operator deck was shielded
by a canopy and operators swung themselves into the cab at a 45 degree angle from a handle
mounted on the canopy. Tr. 223. Gunn described the canopy handle as located three and a half
feet above the mine floor while the operator’s seat was just three inches above the mine floor. Tr.
281, 283. Both Nall and Gunn testified that the “deadman” pedal on the control deck had to be
depressed for a full three seconds before the operator could move or “tram” the roof bolter with a
separate joystick control. Tr. 225, 280.
Gunn testified that the low height of the canopy deck, the available handle, and small
confines of the operator deck made it unlikely for an operator to injure himself if he were to slip
on accumulated oil on the operator deck. Tr. 282-283. Gunn also stated that the deadman switch
made it improbable that a slip would lead to an error in roofbolter operation. Tr. 282. Gunn
testified that he had never heard of oil accumulations on a roofbolter causing either a slip and fall
injury or loss of control over the roofbolter. Tr. 281, 283.
In their post-hearing brief, WCC states that Citation Nos. 8503660 and 7656922 were
issued at the same time, on the basis of the same pool of accumulated oil, on the same roof
bolter. Respondent’s Br., 8-9. WCC describes 30 CFR § 1725(a) as a “general” regulation that
cannot be used as the basis for a citation based on the same factual circumstances as a citation
based on a “specific” standard. Western Fuels Utah Inc., 19 FMSHRC at 1004 n. 12. WCC
argues that the mine’s duty with respect to the roofbolter was simply to keep it free from the
accumulation of oil. Respondent’s Br., 9. WCC further states that separate and distinct duties
were not present in these two citations and as such Citation No. 7656922 should be vacated as
duplicative.
WCC also argues that even if the oil accumulation constitutes a violation of 30 CFR §
1725(a), the Secretary has not established the necessary elements to sustain an S&S designation.
Respondent’s Br., 9. WCC states that the configuration of the operator deck and dead man pedal
control make it clear that the oil accumulation was highly unlikely to lead to either a slip and fall
injury or a potential loss of roof bolter control. Respondent’s Br., 10. As such, WCC argues that
the Secretary has failed to demonstrate a reasonable likelihood that the hazard contributed to by
the violation will result in injury. Respondent’s Br., 9. From this contention, WCC argues that
Citation No. 7656922 should be modified to non-S&S. Respondent’s Br. 10.

36 FMSHRC Page 399

3. Findings
Inspector Dillingham testified credibly that the Bucyrus roof bolter had an oil leak that
caused oil accumulations to build up on the operator deck and upon the roof bolter operator
himself. Tr. 179-80. Dillingham recorded the oil accumulation on the operator deck as measuring
32 inches long, 24 inches wide and a ¼” deep. WCC has not contested these basic factual
descriptions and in fact concedes that the oil accumulation constitutes a violation of a mandatory
standard. Respondent’s Br., 9.
Therefore, I initially find that a prudent miner would have recognized extensive oil
accumulations as a potential slip hazard and I hold that the Sec’y has established that the oil
accumulation constituted a violation of 30 CFR § 75.1725(a).
However, WCC argues that the Secretary has sought to impose improper duplicative
penalties by citing WCC twice for the same condition. Id.
WCC is incorrect. Citation Nos. 8503660 and 7656922 were indeed both based on the
same oil accumulation on the Bucyrus roofbolter. Tr. 195. However, Inspector Dillingham issued
the two citations under two separate standards that regulate entirely different hazards. Tr. 178,
180. 30 CFR § 75.400 prohibits accumulation of combustible materials in an effort to prevent
fires and explosions. 30 CFR § 75.1725(a) broadly mandates the “safe operating condition” of
equipment, seeking to prevent miners from suffering direct injuries from malfunctioning or
improperly maintained equipment.
As such, WCC’s reliance on Western Fuels is misguided. Respondent’s Br. 8. In Western
Fuels, the Commission vacated one of two citations when the Sec’y sought to impose penalties
on an operator for both 1) failing to provide an adequate number of reservoirs on a dry chemical
fire suppression system and, 2) failing to install a dry chemical powder fire suppression system
to protect each belt drive. Western Fuels-Utah, Inc., 19 FMSHRC 994, 1004. Both of these two
standards clearly and exclusively regulated potential fire hazards and were based on the identical
lack of proper reservoirs. Therefore, the Secretary in Western Fuels failed to meet the
Commission’s requirement that citations based on the same factual circumstances impose
separate duties upon the operator. Cyprus Tonopah Mining Corp., 15 FMSHRC 378.
However, as discussed above, the testimony presented at hearing reveals that Citation No.
7656922 is not analogous to Western Fuels as WCC claims. The cited standards in this case
imposed separate duties upon WCC to both prevent fire hazards and maintain equipment in a
safe condition for miners to access and operate. As the Commission has previously held, the fact
that the oil accumulation violated both of these distinct duties does not excuse it of liability from
either. Cyprus Tonopah Mining Corp., 15 FMSHRC 378.
As such, I hold that Citation No. 7656922 is not duplicative of Citation No. 8503660 and
proceed to determining the gravity of the citation. Inspector Dillingham testified that he believed
the oil accumulations on the operator deck and on the operator’s gloves could cause an operator

36 FMSHRC Page 400

to lose control of the machine during operation, or slip and fall while entering the operator’s
deck. Tr. 181, 185.
MSHA Inspector Dillingham, Foreman Nall, and Safety Director Gunn all testified that it
was impossible to tram the roof bolter without first depressing the deadman pedal for three
seconds. Tr. 200-01, 220, 279. All three of these witnesses similarly testified that they had never
heard of an operator losing control of a roofbolter due to oil accumulations. Tr. 200, 226, 283.
For these reasons, I hold that it was highly unlikely for an operator to lose control of the
roofbolter due to oil accumulations and thus decline to consider struck by or caught between
injuries as a component of this citation.
Still, Inspector Dillingham did present credible testimony that the entire floor of the
operator deck was coated with a ¼” deep layer of hydraulic oil. Thus, I find that the slick nature
of hydraulic oil could cause the operator to lose his footing as he entered or exited the operator
deck. Nonetheless, Foreman Nall and Safety Director Gunn testified earnestly that even if the
operator slipped momentarily, the canopy handle, small dimensions of the operator deck
compartment and low height of the operator seat all greatly decreased the likelihood of any
resulting injury. Tr. 223, 282-83. In fact, Dillingham himself testified that he had never heard of
an operator suffering an injury from a slip and fall within the operator’s deck. Tr. 200.
Thus, due to the configuration of the cab and absence of any history of injuries resulting
from similar conditions, I hold that the violation was not reasonably likely to contribute to an
injury. For these reasons, I hold that gravity designations of Citation No. 7656922 should be
modified to “Unlikely” for chance of injury, to “No Lost Workdays” for type of injury, and to
Non-S&S.
However, I do find that the oil leak was an obvious condition, as it coated the entire
operator deck and the operator himself. Tr. 179-80. As such, I find that the violation was the
result of “Moderate” negligence on the part of WCC. Additionally, as the oil leak was spraying
oil across a large portion of the roof bolter, the operator deck and one of the operator’s clothing
and shoes, I find that two miners were affected by this violation as both roof bolt operators
working on this machine had to work on the oil coated roof bolting machine. Tr. 188.
Therefore, after reviewing the six penalty criteria set forth in section 110(i) of the Act, I
reduce the civil monetary penalty for Citation No. 7657922 to $250.00.
V.

SETTLEMENT

The Secretary has filed a motion to approve settlement of 31 of the violation involved in
this matter. I acknowledge and accept the explanation for the agreed upon settlement contained
in the parties’ settlement motion and amendments. The originally assessed amount for these 31
citations was $65,265.00 and the proposed partial docket settlement is for $44,500.00. The
parties have moved to approve the proposed settlement as follows:

36 FMSHRC Page 401

Citation
No.

8504120
7656897
7657047
7657049
7657050
7657051
7657053
7657055
8499894
7657125
7657127
7657128
7657282
8502593
8502594
8502595
7657184
7657185
8502599
8502458
8502602
8502603
8498982
8499873
7657060

7657131

Originally
Proposed
Assessment

Settlement
Amount

$540.00
$1,304.00
$585.00
$634.00
$585.00
$585.00
$207.00
$3,405.00
$392.00
$807.00
$5,503.00
$1,657.00
$2,901.00
$1,530.00
$5,503.00
$4,689.00
$1,795.00
$1,795.00
$1,304.00
$3,143.00
$2,106.00
$745.00
$1,412.00
$3,996.00
$3,996.00

KENT 2012-438 (Partial)
$540.00
$1,304.00
$585.00
$634.00
$585.00
$585.00
$207.00
$3,405.00
$392.00
$807.00
$2,500.00
Reduce Monetary Penalty
$1,657.00
$2,901.00
$1,530.00
$1,857.00
Reduce Monetary Penalty
$1,819.00
Reduce Monetary Penalty
$1,795.00
$1,795.00
$1,304.00
$3,143.00
$2,106.00
$745.00
$1,412.00
$2,900.00
Reduce Number of Miners Affected from “10” to “8”
$1,795.00
Reduce Likelihood of Injury from
“Reasonably Likely” to “Unlikely”

$3,143.00

$1,412.00

Remove “Significant and Substantial” Designation
Reduce Likelihood of Injury from
“Reasonably Likely” to “Unlikely”

Modification

8499896

$3,143.00

$1,412.00

Remove “Significant and Substantial” Designation
Reduce Likelihood of Injury from
“Reasonably Likely” to “Unlikely”

7656997

$1,530.00

$687.00

Remove “Significant and Substantial” Designation
Reduce Likelihood of Injury from
“Reasonably Likely” to “Unlikely”

36 FMSHRC Page 402

8502596

$1,111.00

$499.00

Remove “Significant and Substantial” Designation
Reduce Likelihood of Injury from
“Reasonably Likely” to “Unlikely”

7657008

$1,530.00

$687.00

Remove “Significant and Substantial” Designation
Reduce Likelihood of Injury from
“Reasonably Likely” to “Unlikely”

$1,500.00

Remove “Significant and Substantial” Designation
Reduce Likelihood of Injury from
“Reasonably Likely” to “Unlikely”

8502600

SubTotal

$3,689.00

Remove “Significant and Substantial” Designation
$65,265.00

$44,500.00
V.

ORDER

For the three citations contested at hearing, I rule as follows.
It is ORDERED that Citation No. 8503536 is UPHELD as written and assessed with a
monetary penalty of $2,473.00.
It is ORDERED that Citation No. 7656891 is UPHELD as written and assessed with a
monetary penalty of $2,473.00.
It is ORDERED that Citation No. 7656922 is MODIFIED to “Unlikely,” “No Injury,”
“Non-S&S” and assigned a reduced monetary penalty of $250.00.
Additionally, I have considered the submitted settlement documents and I conclude that
the proposed settlement is appropriate under the criteria set forth in section 110 (i) of the Act.
The motion to approve settlement is GRANTED and the citations contained in this agreement
are MODIFIED as set forth above for a partial settlement total of $44,500.00.
Therefore, Webster County Coal, LLC is ORDERED to pay the Secretary of Labor a
total sum of $49,696.00 within 30 days of this order.2
/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

2

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

36 FMSHRC Page 403

Distribution: (First Class U.S. Mail)
Thomas Motzny, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
Tyler H. Fields, Alliance Coal, LLC, 771 Corporate Drive, Suite 500 Lexington, KY 40503

36 FMSHRC Page 404

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19TH STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

February 13, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,
v.
FREEPORT-MCMORAN MORENCI,
INC.,
Respondent.

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CIVIL PENALTY PROCEEDING
Docket No. WEST 2013-766-M
A.C. No. 02-00024-317732

Mine: Freeport-McMoRan Morenci, Inc.

DECISION
Appearances:

Robert D. Ankeney, CLR, MSHA, U.S. Department of Labor, Denver,
Colorado and Luis Garcia, Office of the Solicitor, U.S. Department of
Labor, Los Angeles, California for Petitioner;
Brian Lamana, Sr. Safety Specialist, Freeport-McMoRan Morenci, Inc.,
Morenci, Arizona for Respondent.

Before:

Judge Miller

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, Mine Safety and Health Administration (“MSHA”) against Freeport-McMoRan
Morenci, Inc., pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ 815 and 820. This docket involves two citations, with penalties assessed
pursuant to section 110(i) of the Mine Act, which are in dispute. The parties presented testimony
and evidence at a hearing held on January 22, 2014 in Phoenix, AZ.
The parties agree that Freeport-McMoRan Morenci, Inc., is an operator as defined by the
Act, and is subject to the jurisdiction and provisions of the Mine Safety and Health Act. A
stipulation has been reached regarding Citation No. 8755004, leaving Citation No. 8596482 for
decision.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Inspector Ernesto Vasquez issued Citation No. 8596482 on January 11, 2013. The
Secretary asserts that the Respondent violated 30 C.F.R §56.11002, which requires stairways to

36 FMSHRC Page 405

be of substantial construction and maintained in good condition. The citation states, in pertinent
part, as follows:
The stairway located at the P-5 conveyor, adjacent to the drive
motors, was found not being maintained in good condition. The
eighth step, (from top to bottom), was found to be showing
damage, in that the outside edge was bent downward
approximately three quarters of an inch for approximately twenty
five inches alongside the outer edge of the step.
Inspector Vasquez indicated that the violation was significant and substantial and the negligence
was moderate. The proposed assessed penalty amount is $1,111.00.
The mine does not dispute that the step was in the condition described by the inspector,
and agrees that the violation occurred as cited. The parties agree that the stairway was of
substantial construction, was provided with handrails, and that the step at issue was the eighth
step from the top. Moreover, they agree that, for approximately twenty-five inches along the
outside edge of the step, it was bent downward approximately ¾ of an inch. The condition is
shown in Sec’y Ex. 2. The area is used as a passageway and is accessible 24 hours a day, seven
days a week. The stairs were free of mud and other slippery conditions at the time the citation
was issued. Hence, I find that violation of the cited standard existed.
While the Respondent does not dispute the fact of violation, it does dispute that the
condition is significant and substantial. A “significant and substantial” violation is described in
section 104(d)(1) of the Mine Act as a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety or health hazard.”
30 U.S.C. § 814(d)(l). A violation is properly designated significant and substantial “if based
upon the particular facts surrounding that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission explained its
interpretation of the term “significant and substantial” to be:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
The difficulty with finding a violation S&S normally comes with the third element of the
Mathies formula, in which the Secretary must establish that there is a reasonable likelihood that

36 FMSHRC Page 406

the hazard will result in an injury. The Commission has explained that the third element of the
formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed
to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (Aug. 1984). This evaluation is made in consideration of the length of time that the
violative condition existed prior to the citation, and the time it would have existed if normal
mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). In addition, the question of whether
a particular violation is S&S is a circumstantial inquiry that must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio
Coal Co., 9 FMSHRC 2007 (Dec. 1987).
Mine Inspector Ernesto Vasquez had been an inspector for two years and, prior to that
time, he worked in the mining industry for 15 years. Vasquez explained that Morenci is a large
copper mine that he has inspected a number of times. Morenci is a surface, open pit mine with
approximately 2,500 employees. Vasquez was at the mine with a number of other inspectors on
January 11, 2013 when he issued this citation for the bent step that he observed. Vasquez went
up the steps with a safety representative from the mine and, when he returned down the steps, he
stepped on the bent step and felt himself lose his balance. He grabbed the handrail and did not
fall, but testified that he lurched forward and that the step made a significant difference in his
ability to safely move down the steps. He did not notice the bent step when he first traveled up
the stairway. However, on his return trip down, he lost his balance and subsequently turned
turned to look at the step, took photographs, Sec’y Ex. 2 pp. 1-5, and took measurements.
Vasquez explained to the representatives from the mine that the step was a problem and that he
would issue a citation. He did not know how long the step had been bent, but he surmised that
something very heavy had to have been dropped on the step to bend it in such a fashion.
As illustrated by the photograph in Sec’y, Ex. 2, pp. 1-5, the step is made of a heavy wire
mesh and is 36 inches wide. The middle 23- inch portion of the step was bent down and was
uneven. Each step is eight inches apart from the step above and below it. If a miner were aware
that the step was uneven in the middle, that portion of the step could be avoided by stepping
along the side. However, as Vasquez explained, a miner would have to remember that it was
bent each time he went down in order to avoid the damaged part. The miner would also be
required to hold the handrail in order to avoid tripping on the step. Vasquez observed a number
of miners, often carrying tools or equipment, walking up and down steps without holding on to
the rail.
The step that was damaged was about three-quarters of the way up the set of stairs, and a
slip and fall would result in a tumble ten feet to the bottom of the steps. Anyone who fell would
fall into those walking down ahead, which in turn would cause the others to fall some distance.
A miner using this set of stairs expects the step to be flat and even. Vasquez opined that if you
step down, and are not prepared to step on a damaged step, it is easy to fall. The inspector does
not know how long the condition existed but the step was not closed off or barricaded and it was
available for use. Given that the stairs are used every shift to access the conveyor and drive
motors, miners carry tools up and down, do not always use the handrail, and cannot avoid the
damaged step unless fully concentrating on walking to the side, Vasquez believed that the
condition would inevitably lead to an accident resulting in a serious injury.

36 FMSHRC Page 407

Sullivan Heber, a member of the Morenci safety department, accompanied Vasquez when
he observed the step. Heber did not believe it was likely that someone would fall as a result of
the damaged step. Instead, he explained that there are other ways to access the work platform,
even though he agreed that these stairs are used on a regular basis for maintenance. Heber said
that the inspector paused, but did not fall, and then continued down the stairs before turning to
look at the step. Heber had not noticed the damaged step prior to the time the inspector paused
on his way down, and he had no idea how or when the step was damaged. Heber explained that
there is a light above the stairway, a handrail, and only the middle portion of the step was
damaged, leaving the edges for someone to safely step around. He believed that the stairs and
handrail were in sound condition, there were no obstructions or work being done on the steps,
and he did not feel unsafe in using the steps.
Based on Heber’s testimony, the arguments made at hearing, and the documents
submitted after hearing, the mine argues that this violation is not S&S for several reasons. First,
there is a handrail that would prevent a fall and, second, the ¾ inch bend did not affect the safety
of the entire step and, rather, there were several inches on each side of the step to use safely. The
mine also points out that the bend in the step was not significant, there are several access routes
to the conveyor, the remaining steps were in good condition, the inspector did not fall, it is
unlikely that ice or debris would build up on the step because it is of grate construction, there is
ample light, few tools are carried each day, and the defect was likely in place for only a short
period of time since there were no signs of rust.1 There is no question that the stair was
substantially constructed, and that the handrails were in place and in good condition. Further,
there were no other obstructions on the steps. However, the many factors listed by the mine are
not enough to take away from the gravity of the violation. Additionally, the allegedly mitigating
conditions noted by the company are required in many instances by other MSHA standards.
The Commission has determined that an experienced MSHA inspector’s opinion that a
violation is significant and substantial is entitled to substantial weight. Harland Cumberland
Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal Inc. v. MSHA, 52 F.3d
133, 135 (7th Cir. 1999). Vasquez reaffirmed that environmental conditions, along with
complacency in not using the handrail, as well as the expectation by miners that the step would
be flat and even, lead him to believe that it is likely that an accident will occur. He lurched
forward when he stepped down and, although he did not fall, it is reasonably likely that someone
would. The step is six feet above the ground, but the distance down the steps is about ten feet,
and a fall from ten feet would result in broken bones, cuts, or even trauma to the head or back.
The resulting injury was reasonably likely to result in an injury that would be permanently
disabling.
Other Commission judges have found that a bent stair was a significant and substantial
violation. In Lakeview Rock Products, 19 FMSHRC 321 (Feb. 1997) (ALJ), the judge found that
the company committed an S&S violation for failing to maintain two sets of stairs leading down
1

A number of these issues were not addressed by the testimony of the witness and,
therefore, are technically not in evidence. However, because the operator appeared pro se, I have
considered all arguments raised in making my decision.

36 FMSHRC Page 408

to a cone crusher and screen plant. The judge found that, given the bent condition of the steps, it
was reasonably likely that a worker would fall. The Courts and the Commission have addressed
the matter of other safety precautions, similar to those raised here by the mine, and found that,
even though “after-the-fact safety systems” were in place, the existence of other safety measures
to deal with the violation does not mean the violation is not a serious safety hazard. Buck Creek
Coal, Inc., 52 F.3d 133, 136 (7th cir. 1995); See Black Beauty Coal Co. v. Federal Mine Safety
and Health Review Com'n, 703 F.3d 553 (D.C. Cir. 2012), affirming Black Beauty Coal Co., 33
FMSHRC 1482 (June 2011) (ALJ). The Commission, likewise, determined that a violation was
S&S in spite of the operator’s arguments that the violation was not S&S because of the presence
of other safety devices. AMAX Coal Co., 19 FMSHRC 846 (May 1997).
I credit Inspector’s Vasquez’ description of the defects and associated hazards. While
there were no adverse conditions on the day Vasquez was at the mine, anything from an untied
shoe to simple inattention, combined with the bent and uneven stair, would easily result in a fall
of ten feet down the stairs. I find that there is a violation and that the condition cited, the bent
and damaged stair, would cause someone to stumble and fall as they descend the stairs. The
stairs are used daily, and there is no indication that the mine had a plan to repair the stair, leading
me to believe that it would have remained in that bent condition for some time. Falling the ten
feet down the stairs would result in a broken bone, or a head or back injury, which are very
serious injuries. Therefore, I find that the violation is significant and substantial.
II. PENALTY
The parties have agreed to settle Citation No. 8755004 by reducing the gravity to nonS&S and the penalty amount from $1,657.00 to $249.00. At hearing the parties agreed that the
Respondent would have presented evidence that the back brace on the ladder was bent, but it was
otherwise in good condition and used only in the shop. Therefore, it is not likely that a miner
would be hurt using the ladder and, as a result, the parties agree to amend the citation to remove
the “Significant and Substantial” designation, to modify the gravity of injury from “Reasonably
Likely” to “Unlikely,” and reduce the proposed penalty from $1,657.00 to $249.00. I accept the
stipulations of the parties and assess a penalty of $249.00.
The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine act delegates to the Commission and its judges “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to
the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29
C.F.R. § 2700.28. The Act requires, that “in assessing civil monetary penalties, the Commission
[ALJ] shall consider” six statutory penalty criteria which include the history of violations, the
size of the operator, the negligence, gravity, the ability to continue in business and good faith
abatement. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the Commission has
held that “findings of fact on the statutory penalty criteria must be made” by its judges.
Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984).
Once findings on the statutory criteria have been made, a judge's penalty assessment for a
particular violation is an exercise of discretion, which is “bounded by proper consideration of the

36 FMSHRC Page 409

statutory criteria and the deterrent purpose[s] . . . [of] the Act. Id. at 294; Cantera Green, 22
FMSHRC 616, 620 (May 2000).
In the instance case, for Citation No. 8596482, the operator is large, has no unusual
history of these types of violations, and abated the condition in good faith. The inspector
indicated that the negligence was moderate and, given the facts as discussed above, I agree. I
have discussed the gravity and S&S nature above and find that the $1,111.00 penalty proposed
by the Secretary is appropriate in these circumstances.
Given my above findings, I assess a total penalty of $1,360.00 for both the stipulated
citation and citation addressed at hearing. Freeport-McMoRan Morenci Inc. is hereby
ORDERED to pay the Secretary of Labor the sum of $1,360.00 within 30 days of the date of
this decision.

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

Distribution:
Robert Ankeney, CLR, U.S. Department of Labor, MSHA, P.O. Box 25367, M/NM, Denver, CO
80225-0367
Luis Garcia, U.S. Department of Labor, Office of the Solicitor, 350 S. Figueroa Street, Suite 370
Los Angeles, CA 90071
Brian Lamana, Sr. Safety Specialist, Freeport-McMoRan Morenci Inc., 4521 US Highway 191,
Morenci, AZ 85540

36 FMSHRC Page 410

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

February 18, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
MARTIN MARIETTA MATERIALS,
INC.,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. CENT 2013-332-M
A.C. No. 23-00141-315058

Mine: Greenwood Quarry

ORDER DENYING SECRETARY’S MOTION FOR SUMMARY DECISION
Before: Judge Rae
This docket is before me on a petition for assessment of penalty filed by the Secretary
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815
et seq. (2000) (the “Act”). On January 8, 2014, I granted the Secretary’s motion to plead in the
alternative alleging a violation of 30 C.F.R. §56.14100(b) as originally cited by the Mine Safety
and Health Administration (“MSHA”) inspector as well as a violation of 30 C.F.R. §56.14100(c)
in the alternative. This single citation docket arises from an inspection conducted by Rickie
Knupp on October 23, 2012 at the Greenwood surface limestone quarry operated by Martin
Marietta Materials, Inc. (“Martin Marietta”) in Greenwood, Missouri. The facts surrounding the
alleged violation as set forth below are uncontested by the parties and on January 31, 2014 the
Secretary filed a Motion for Summary Decision in accordance with Section 2700.67 of the
Federal Mine Safety and Health Review Commission’s Procedural Rules, 30 C.F.R. § 27.00.67
which the Respondent has opposed. For the reasons set forth herein, I DENY the Secretary’s
Motion and VACATE the sole citation.
Summary Decision Standards
Commission Rule 67 sets forth the guidelines for granting summary decision:
(b) A motion for summary decision shall be granted only if the entire record,
including the pleadings, depositions, answers to interrogatories, admissions,
and affidavits shows:
(1) That there is no genuine issue as to any material fact; and

36 FMSHRC Page 411

(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 long recognized that [ ] ‘summary decision is an extraordinary
procedure,’ and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under
which the Supreme Court has indicated that summary judgment is authorized only ‘upon proper
showings of the lack of a genuine, triable issue of material fact.’” Hanson Aggregates New York,
Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting Energy West Mining Co., 16 FMSHRC 1414, 1419
(July 1994)). In reviewing the record on summary judgment, the court must evaluate the
evidence in “the light most favorable to…the party opposing the motion.” Hanson Aggregates at
9 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962). Any inferences “drawn
from the underlying facts contained in [the] materials [supporting the motion] must be viewed in
the light most favorable to the party opposing the motions.’” Hanson Aggregates at 9 (quoting
Unites States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
The issues presented in this penalty proceeding are whether the defective head lights on a
skid steer loader violated either subsection (b) or (c) of mandatory standard section 56.14100.
Subsection (b) requires the operator to correct in a timely manner defects on equipment that
affect safety while subsection (c) requires the operator to remove from service defective
equipment when continued operation of such would be hazardous. Subsection (a) of that
standard requires the operator to inspect all self-propelled mobile equipment to be used during a
shift before it is placed in operation. 30 C.F.R. §56.14100.
Findings of Fact and Legal Analysis
The undisputed facts are that on October 23, 2012, MSHA inspector Rickie Knupp was
conducting an inspection at the Greenwood quarry. While accompanied by Martin Marietta
personnel, Harry Danforth and Chris Bollinger, he inspected the cited Case 1840 skid loader
located in the equipment shop. He found that the headlights were not functioning on the loader
at that time. The loader had been used the day before and the headlights had worked properly.
The loader had not been put into use on the day of the inspection and Knupp was informed by
Lambert that it had not yet been inspected for use that day. It was not locked or tagged out to
prevent use when Knupp inspected it. A faulty switch was found to be the culprit, which was
replaced by Danforth and the violation was abated by Knupp when he rechecked it the following
day. The loader is used to clean up the primary and secondary crusher areas of the mine during
the day. The mine does not operate a night shift.
The Secretary alleges a violation of subsection (b) of the cited standard based upon the
theory that the Act imposes strict liability for this violation even taking into consideration the
“timely manner” language incorporated into this subsection. He argues that because the lights
did not work when inspected, although working the day before, the operator should have known
about the faulty switch and corrected it or taken it out of service “at least after a pre-shift
examination.” Sec’y’s Motion. He cites several cases in support of his position but does not
present any evidence to ascertain when the operator first knew or should have known of the
defect as required by law. See Lopke Quarries, Inc., 23 FMSHRC 705 (July 2001) (ALJ

36 FMSHRC Page 412

properly vacated a citation where the Secretary could not prove a defect was known to operator,
how long it existed and that it was not corrected in a timely manner); Barrett Paving Materials,
Inc., 15 FMSHRC 1999 (Sept. 1993) (citation vacated where there was no evidence of length of
time defect existed or equipment examined); Sweetman Construction Co., 21 FMSHRC 101
(Jan. 1999) (ALJ) (violation established because defective truck was in use at the time the
inspector found the defect); Walker Stone Company, 20 FMSHRC 1225 (Oct. 1998) (ALJ)
(violation established where the operator had been using equipment without functioning
headlights for a long period of time due to a lack of knowledge that MSHA required them).
The undisputed evidence is that the lights had functioned the day before the inspection.
The equipment had not yet been put into service that day and the pre-use inspection had not yet
been done. The Secretary, under these set of facts, cannot establish that the operator knew or
should have known of the defect or that it would not have fulfilled its duties under subsection (a)
of the standard and performed the pre-use inspection, thereby identifying and repairing the defect
in a timely manner before the loader was put to use.
The Secretary argues in the alternative that the facts establish a violation of subsection (c)
because at “some point, the non-functioning headlights on the skid loader would rise to the level
of a hazardous defect.” The loader was still available for use as it lacked a tag or other indication
that it should not be used in its present condition. Again, the Secretary cites several cases in
support of his position which in fact do not support it. First he cites LaFarge North America, 35
FMSHRC 2472 (Dec. 2013) in which the Commission remanded the case where the ALJ vacated
a citation issued in section 56.14100(c) for lack of notice of the standard of measurement to be
used for play in ball joints. The “continued operation” of defective equipment was not at issue in
this case. It next cites North Idaho Drilling, Inc., 35 FMSHRC 2472 (Aug. 2013) (ALJ). This
case is illustrative of the significance of the language “continued operation” contained in
subsection (c) of this standard and why it does not apply in the instant case. Judge Manning
found a violation where the outrigger float on a crane was damaged and could have led to its
capsizing and endangering miners. The crane had been in use for 45 minutes when the inspector
cited it. Judge Manning found that the “respondent used the crane while the damage to the float
and outrigger existed....” Similarly, Judge Miller found a violation of this subsection where a
faulty brake light had been recorded repeatedly in the pre-use examination book and had been
found in service when cited. Boart Longyear Co., 34 FMSHRC 2715 (Oct. 2012).

36 FMSHRC Page 413

As the Respondent correctly argues, there is no evidence of “continued operation” as
required by the standard and as underscored by cases cited above. The headlights had functioned
the day before, the skid loader had not yet undergone its pre-use inspection and it had not been
used since its headlights ceased to function. There is no evidence that the operator would have
failed to conduct this required inspection identifying the defect and repairing it before placing it
into operation. There was no instance in time at which the operator could have known or should
have known that the defect existed nor is there any evidence that the loader would have been
used again in its defective condition.
For the reasons set forth herein, the citation is VACATED and the matter is DISMISSED.

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge
Distribution:
Susan J. Willer, Esq., U.S. Department of Labor, Office of the Solicitor, Two Pershing Square,
2300 Main Street, Ste. 1020, Kansas City, MO 64108
Scott Wircenske, Martin Marietta Materials, Inc., 7381 W. 133rd Street, Overland Park, KS
66213

36 FMSHRC Page 414

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

February 18, 2014
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SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
OAK GROVE RESOURCES, LLC ,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. SE 2012-416
A.C. No. 01-00851-285172

Mine: Oak Grove Mine

DECISION
Appearances:

Jennifer Booth-Thomas, U.S. Department of Labor, Nashville, Tennessee,
on behalf of the Secretary of Labor
Patrick Dennison, Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, on
behalf of Oak Grove Resources, LLC

Before: Judge Zielinski
This case is before me upon a Petition for Assessment of Penalty under section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The petition alleges that
Oak Grove Resources, LLC (“Oak Grove”), is liable for four violations of the Secretary’s Safety
Standards for Underground Coal Mines, and proposes the imposition of penalties in the amount
of $125,100.00. A hearing was held in Birmingham, Alabama. The parties settled two citations
prior to the hearing and a Decision Approving Partial Settlement was issued. At the hearing, the
parties settled the two remaining citations, Order Nos. 8521202 and 8521203. Afterwards, the
parties submitted a joint motion to approve settlement as instructed. For the reasons that follow,
I impose civil penalties in the amount of $88,125.00.
SETTLEMENT TERMS
The terms of the settlement are as follows:
Order No.
8521202

Proposed
Penalty
$70,000.00

Settlement
Amount

Modifications/Explanations

$44,062.00

The Respondent argues that the cited condition
was not a violation of Section 75.400, and was
not the result of an unwarrantable failure or high
negligence on the part of Oak Grove. Further,

36 FMSHRC Page 415

8521203

$47,100.00

$44,063.00

Total

$117,100.00

$88,125.00

the Respondent argues that the material cited
consisted of wet sloppy material and was not
combustible. Pre-shift mine examiners had
noted conditions in pre-shift examinations and
persons were assigned to complete work in the
cited area. Additionally, the Respondent argues
that maintenance had been conducted on shifts
prior to the inspection. The Secretary proposes
that the penalty be modified in light of the
contested evidence and mitigating
circumstances.
The Respondent argues that the cited condition
was not a result of the operator’s unwarrantable
failure to comply with a mandatory safety
standard because the pre-shift examination
report included all of the potentially hazardous
conditions that were in the area at issue in this
violation. The Secretary proposes that the
penalty be modified in light of the contested
evidence and mitigating circumstances.

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.
WHEREFORE, the motion to approve settlement is GRANTED.
ORDER
It is ORDERED that the operator pay a total penalty of $88,125.00 within 30 days of this
decision.1

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

1

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390.

36 FMSHRC Page 416

Distribution (Certified Mail):
Jennifer Booth Thomas, Esq., U.S. Department of Labor, 618 Church Street, Suite 230,
Nashville, TN 37219
Patrick Dennison, Esquire, Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401
Liberty Avenue, Pittsburgh, PA 15222

36 FMSHRC Page 417

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

February 19, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
MILLER SPRINGS MATERIAL, L.L.C.,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. CENT 2012-906-M
A.C. No. 41-04510-298298

Mine: Cove Quarry

ORDER GRANTING RESPONDENT’S
CROSS-MOTION FOR SUMMARY DECISION
Before:

Judge Feldman

This case is before me upon a petition for assessment of a civil penalty filed by the
Secretary of Labor (“the Secretary”) against the Respondent, Miller Springs Material, LLC
(“Miller Springs”), pursuant to section 105(d) of the Federal Mine Safety and Health Act of
1977, as amended. 30 U.S.C. § 815(d). This matter concerns Citation No. 8628189, the single
citation at issue, which alleges a violation of 30 C.F.R. § 56.1000. This mandatory reporting
standard states in relevant part that “when any mine is closed, the person in charge shall notify
the nearest [Mine Safety and Health Administration (“MSHA”)] district office . . . and indicate
whether the closure is temporary or permanent.” The Secretary seeks to impose a $100.00 civil
penalty for Citation No. 8628189. The Secretary has filed a Motion for Summary Decision in
this matter. Relying solely on joint stipulations, Miller Springs opposes the Secretary’s Motion.
Cove Quarry, the subject site in this proceeding, is a crushed limestone, rock and gravel
facility. (Jt. Stip. 2). The question presented is whether a mine may be deemed to be “closed”
pursuant to section 56.1000 during a period in which the Secretary concedes Miller Springs
periodically continued to fill orders from an existing stockpile in response to the needs of its
customers. (See Jt. Stip. 13). The Secretary argues that the mine must be considered closed
because there were no ongoing production-related activities. (Sec’y Mot. at 4-5).
I.

Background

On January 11, 2012, Miller Springs notified MSHA’s San Antonio field office that
the Cove Quarry mine was on intermittent, producing status. (Jt. Stip. 12). On June 28, 2012,
MSHA Inspector Homer Pricer arrived at Cove Quarry to conduct an inspection. At that time,
he found no mine personnel or production activities at the site. (Jt. Stip. 10). Pricer contacted
the plant manager, who informed him that production had stopped in December 2011, although

36 FMSHRC Page 418

orders were continuing to be filled from existing stockpiles throughout 2012. (Stip. 13 of Ex. 2,
Declaration of Inspector Pricer; Jt. Stip. 13). Based on his observation of a lack of activity at
the mine, and on the information he received from the plant manager that the crusher had been
removed for repairs since December 2011 although intermittent loading activities had continued,
Pricer concluded that Miller Springs had violated the reporting requirements of section 56.1000
because it had failed to notify the MSHA district office that the mine was closed. (Jt. Stip. 10,
15). The alleged failure to report was designated as non-significant and substantial, and
attributable to a low degree of negligence.
On December 6, 2013, the Secretary filed a Motion for Summary Decision, with joint
stipulations of material fact. On January 7, 2014, Miller Springs represented by email that it
did not oppose disposition by summary decision, although it declined to file a brief in opposition
to the Secretary’s Motion for Summary Decision. I construe Miller Springs’ acquiescence to
disposition by summary decision as a Cross-Motion for Summary Decision.
As discussed below, the Secretary’s assertion that a mine is deemed closed despite
ongoing stockpile operations is inconsistent with analogous ALJ Decisions concerning the
substantive significance of loading activities. In addition, the Secretary’s apparent willingness
to relinquish MSHA oversight of stockpile loading activities is contrary to the authority
delegated to MSHA to conduct inspections to ensure that mobile loading equipment and
stockpiles are maintained in safe condition. Accordingly, the Respondent’s Cross-Motion for
Summary Decision shall be granted. Consequently, Citation No. 8628189 shall be vacated.
II.

Joint Stipulations
The parties have stipulated to the following facts for purposes of summary decision:
1. Miller Springs Materials LLC (“Respondent”) owns and operates the
Cove Quarry (Mine ID 41-04510) in Kempner, Texas (“the Mine”).
2. The Mine is a crushed limestone, rock, and gravel operation.
3. Respondent is engaged in mining operations in the United States and the
company’s operations affect interstate commerce.
4. The Mine is subject to the Federal Mine Safety and Health Act of 1977
(“The Act”), 30 U.S.C. § 801 et seq.
5. The Mine is subject to regulation by the Mine Safety and Health
Administration (“MSHA”).
6. The Federal Mine Safety and Health Review Commission has jurisdiction
over the Mine, the parties and the subject matter of this proceeding.
7. The proposed penalty will not affect Respondent’s ability to continue to
do business.
8. Respondent demonstrated good faith in abating the cited conditions.

36 FMSHRC Page 419

9. MSHA Inspector Homer Pricer (“Inspector Pricer”) was acting as an
authorized representative of the Secretary of Labor (“Secretary”) at the
time of the inspection at issue in this case.
10. On June 28, 2012, Inspector Pricer arrived at the Mine to conduct a
regular E01 inspection. There were no mine personnel or production
activities on site.
11. Inspector Pricer instead conducted an E16 inspection.
12. On January 11, 2012, Respondent notified the San Antonio field office
that the Mine was on intermittent, producing status.
13. Respondent filled orders at the Mine from the existing stockpile of
material throughout 2012.
14. Inspector Pricer Issued Citation No. 8628189 for a violation of 30 C.F.R.
§ 56.1000.
15. Citation No. 8628189 states:
The mine operator failed to notify the nearest District, Sub district,
or Field Office of the Mine Safety and Health Administration of
their intent to close (permanently or temporarily) the mine. Plant
Manager stated that the crusher which had been moved for repairs
has not operated at this location since December 2011. Failure to
notify MSHA of the mine status is a violation of a mandatory
standard.
16. Respondent terminated the citation by notifying MSHA on June 28, 2012
of its non-producing status.
(Jt. Stip. 1-16) (emphasis added).
III.

Procedural Framework

Disposition by summary decision is appropriate provided the entire record establishes
that there is no genuine issue as to any material fact, and that the moving party is entitled to
summary decision as a matter of law. 29 C.F.R. § 2700.67(b). See, Missouri Gravel Co.,
3 FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The parties agree that no material facts remain at issue in this matter. Section 56.1000
requires that operators notify the nearest MSHA office when a mine closes. It is uncontested that
at the time of the June 28, 2012, inspection, the Cove Quarry Mine was on record with MSHA’s
San Antonio office as “intermittent, producing” rather than “closed.” (Jt. Stip. 12). It is also
uncontested that, although no production activities were occurring on site on June 28, 2012,

36 FMSHRC Page 420

Miller Springs continued to fill customer orders from a stockpile at the Cove Quarry Mine
throughout 2012.1 (Jt. Stip. 10, 13). As noted above, the issue to be resolved is whether a mine
is properly deemed “closed” when the only activity occurring on-site is loading from a stockpile.
IV.

Discussion and Evaluation

The operative language in section 56.1000 requires mine operators to notify MSHA “when
any mine is closed.” The Commission has recognized:
“When the meaning of the language of a statute or regulation is
plain, the statute or regulation must be interpreted according to its
terms, the ordinary meaning of its words prevails, and it cannot be
expanded beyond its plain meaning.” Western Fuels-Utah, Inc.,
11 FMSHRC 278, 283 (Mar. 1989); Consolidation Coal Co.,
18 FMSHRC 1541, 1545 (Sept. 1996). It is a cardinal principle
of statutory and regulatory interpretation that words that are not
technical in nature “‘are to be given their usual, natural, plain,
ordinary, and commonly understood meaning.”’ Western Fuels,
11 FMSHRC at 283 (citing Old Colony R.R. Co. v. Commissioner
of Internal Revenue, 284 U.S. 552, 560 (1932)). It is only when
the plain meaning is doubtful that the issue of deference to the
Secretary's interpretation arises. See Pfizer Inc. v. Heckler,
735 F.2d 1502, 1509 (D.C. Cir. 1984) (deference is considered
“only when the plain meaning of the rule itself is doubtful or
ambiguous”) (emphasis in original).
Akzo Nobel Salt, Inc., 21 FMSHRC 846, 852 (Aug. 1999) (holding that the term “two or more
separate escapeways” is plain on its face and not subject to interpretation). The relevant plain
meaning of “closed” is “to bring to an end; terminate,” “to stop the operations of permanently
or temporarily.” The American Heritage Dictionary 349 (4th ed. 2009). Judge Manning has
addressed the issue of “temporary closure” as it relates to section 56.1000 in John Richards
Construction, 23 FMSHRC 1045, 1049-50 (Sept. 13, 2001) (ALJ). Judge Manning stated that
section 56.1000 “is designed to cover situations where an operation closes permanently or is
closing for some definite period of time.” Id. Consistent with Judge Manning, I believe that
a mine may not be considered “closed” within the context of its plain meaning, when periodic
ongoing loading activities dictated by the needs of customers continue to occur.
However, the Secretary contends that the word “closed” is ambiguous, given the fact that
it is not defined in the Secretary’s regulations. Hence, the Secretary maintains that a mine is
“closed” when it is not engaged in the act of extracting or processing material. Consequently,
the Secretary argues that activities solely related to filling orders from a preexisting stockpile
do not render the mine “open.” (Sec’y Mot. at 4-5).
1

The record does not reflect, nor does Miller Springs contend, that it engaged in any
production activities at Cove Quarry after it notified the San Antonio Field Office on January 11,
2012, that it was on intermittent, producing status.

36 FMSHRC Page 421

Where a statutory provision is ambiguous or silent, deference is owed to the Secretary’s
interpretation of the provision as long as that interpretation is reasonable. Bill Simola, employed
by United Taconite LLC, 34 FMSHRC 539, 542-43 (Mar. 2012), citing Chevron USA, Inc., v.
Natural Res. Defense Council, Inc., 467 U.S. 837, 842-44; Energy West Mining Co. v. FMSHRC,
40 F.3d 457, 460 (D.C. Cir. 1994). Giving the Secretary the benefit of the doubt that there is
ambiguity, the Secretary’s proffered interpretation of the word “closed” must be rejected as
unreasonable because it is inconsistent with previous ALJ decisions, as well as Commission
decisions addressing the question of what constitutes “mining.” Perhaps more importantly,
the Secretary’s position is contrary to the Mine Act’s fundamental goal of fostering a safer
working environment, given the absence of a showing of any feasible method by which
personnel performing loading activities can be protected from hazardous equipment or mine
conditions if Cove Quarry were deemed closed.
In arguing that the Secretary’s interpretation is reasonable, the Secretary relies
on Nelson Quarries, 32 FMSHRC 1422 (Oct. 7, 2010) (ALJ Rae). (Sec’y Mot. at 4-6).
In Nelson Quarries, the operator had notified MSHA that a plant would be closed from
February 2 to February 28, 2009. However, when the inspector arrived in May 2009, he
determined that the site was still closed, and issued a citation for failing to provide MSHA
with a corrected start date as required by section 56.1000. 32 FMSHRC at 1425. The parties
stipulated that there had been no drilling, blasting, or extracting of materials in the intervening
months. Moreover, Nelson Quarries failed to provide any documentation indicating that
mechanics had been on-site to service equipment. Significantly, as distinguished from this
case, the testimony as to whether customers had been loading trucks from a stockpile was
inconclusive. Id. at 1426-28. Accordingly, the judge held that the mine was still closed as of
May 2009, and the citation alleging a violation of section 56.1000 was affirmed. Id. at 1428.
Thus, the Secretary’s reliance on Nelson Quarries is misplaced, in that there was no definitive
evidence of any activities occurring at the mine.
While Nelson Quarries does not support the Secretary’s assertion that its interpretation
is reasonable, there are ample Commission Judges’ decisions that have held that loading from
a stockpile constitutes sufficient activity for a mine to be designated as “open” as contemplated
by section 56.1000. In John Richards, Judge Manning found that a sand pit was open on
intermittent status where employees were only on site when customers requested loading
assistance. 23 FMSHRC at 1049-50 (vacating an alleged violation of section 56.1000 for failing
to notify MSHA of a mine shutdown). Similarly, in Robert L. Weaver, the judge found that a
mine was operating intermittently where miners were not present when the inspector arrived, but
came on-site to fill customer orders by loading material from the mine stockpile. 15 FMSHRC
2117, 2120-21 (Oct. 4, 1993) (ALJ Melick) (vacating an alleged violation of section 56.1000 for
failing to notify MSHA of a temporary closure). See also, Concrete Materials, 35 FMSHRC 690
(March 26, 2013) (ALJ Manning) (finding a violation of section 56.1000 where a mine notified
MSHA that it had closed, but in fact it was not closed because the mine had “maintenance and
load-out activity throughout the winter as weather permitted”).
Although jurisdictional status and operating status are admittedly distinct issues, the
Commission’s caselaw on jurisdiction is instructive. In this regard, the Secretary’s contention
that a mine must be considered closed if the sole activity is loading from a stockpile, because

36 FMSHRC Page 422

filling customer orders is too far removed from the extraction process, is belied by Commission
caselaw on jurisdiction. In determining whether an operation is properly classified as “mining,”
the Commission has consistently looked to whether the activities being undertaken are usually
performed by the operator and are undertaken to make the extracted material suitable for a
particular use or to meet market specifications. See Shamokin Filler Co., Inc., 34 FMSHRC
1897, 1902 (Aug. 2012), citing Oliver M. Elam, Jr., Co., 4 FMSHRC 5, 7-8 (Jan. 1982).
Specifically, Elam involved a business entity that operated a commercial dock on the
Ohio River. Elam’s customers were coal brokers who paid Elam to load and transport coal on
barges leaving from the dock. The Commission noted that Elam’s activities with respect to coal
related solely to loading it for shipment. Thus, the Commission concluded that Elam’s facility
was not a mine subject to the Mine Act. In reaching this conclusion, the Commission stated:
Thus, inherent in the determination of whether an operation
properly is classified as “mining” is an inquiry not only into
whether the operation performs one or more of the listed work
activities, but also into the nature of the operation performing such
activities. In Elam’s operations, simply because it in some manner
handles coal does not mean that it automatically is a “mine”
subject to the Act.
4 FMSHRC at 7 (emphasis in the original).
While Elam dealt with a jurisdictional question, the case stands for the proposition
that loading in response to a customer’s needs is not mining when the business entity
performs no activities normally associated with the extraction and preparation processes.
Here, Miller Springs’ loading activities in response to customer orders at the very site where
the limestone, rock and gravel are extracted and crushed, cannot be disassociated from the
mining process itself. In short, Miller Springs’ loading activities utilizing front end loaders
and other relevant equipment at the Cove Quarry Mine, albeit intermittently, remain under
MSHA’s jurisdiction to inspect and, as such, may not be considered evidence of inactivity
justifying the characterization of the mine as “closed.”2
The primary purpose of the Mine Act is to preserve “the health and safety of its most
precious resource – the miner.” 30 U.S.C. § 801(a). Inspections are the means by which this
purpose is achieved. 30 U.S.C. § 813(a). Presumably, only mines listed as “open” are inspected.
Requiring Cove Quarry to be listed as “closed” while loading activity is occurring on-site
2

It is noteworthy that Congress has expressed that “what is considered to be a mine and
to be regulated under this Act [should] be given the broadest possible interpretation, and . . .
doubts [should] be resolved in favor of inclusion of the 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)
(emphasis added). The interruption of crushing and/or extraction, apparently due to repair of the
crusher, does not alter MSHA’s continuing jurisdiction over Cove Quarry, given its intermittent
loading activities. (See Jt. Stip. 15).

36 FMSHRC Page 423

endangers the health and safety of the operators of the mobile equipment performing the loading
activities. See, e.g., Concrete Materials, 35 FMSHRC at 692 (noting that allowing the mine to
be classified as “closed” when activities were occurring onsite endangers the health and safety
of personnel in the mine); Hansen Truck Stop, Inc., 26 FMSHRC 293, 297 (March 9, 2004)
(ALJ Zielinski) (noting that a mine operating on intermittent status is subject to MSHA scrutiny,
while a mine listed as closed is not). The only way for MSHA to determine if stockpiles and
mobile loading equipment are maintained safely is to retain MSHA oversight, rather than
relinquishing inspection responsibility because a mine is considered to be closed.
In the final analysis, the motivation behind the Secretary’s assertion that the mine should
be deemed closed is pragmatic rather than substantive. In this regard, in his brief, the Secretary
states:
Due to the absence of equipment, personnel, and activity at
the mine, Inspector Pricer was unable to determine whether
Respondent operated the Mine in a safe manner. Instead, he
unnecessarily expended MSHA resources to travel to a closed
mine which failed to update its status as required by 30 C.F.R.
§ 56.1000.
(Sec’y Mot. at 5-6) (citation omitted).
It is difficult to distinguish the Secretary’s asserted hardship in inspecting mines in
which activities are limited to periodic loading from the Secretary’s apparent acceptance of
its responsibility to inspect mines that are designated with “intermittent status.” As noted,
Miller Springs informed MSHA that the Cove Quarry mine was on intermittent status as of
January 11, 2012. Miller Springs was cited for failing to notify MSHA that it was closed as a
result of Pricer’s June 28, 2012, inspection that found no mine personnel at the mine at that time.
The difficulty of complying with the notification requirements of section 56.1000 with regard
to mine closure are self-evident in instances where activities are dictated by the demands of
customers. Judge Manning addressed this very issue in John Richards:
In the case of this pit, it remained open all winter, but it had
employees present only when there was a demand for its products.
If Richards Construction had notified MSHA that it was closed at
the end of December 1998, the standard would have required it to
notify MSHA every time a customer called for sand. I do not read
section 56.1000 imposing such a requirement on intermittent
operations.
23 FMSHRC at 1050. While I understand MSHA’s dilemma, the problem is one of scheduling
inspections rather than compliance with section 56.1000. The procedures best known to MSHA
for efficiently inspecting intermittent mines should have prevented or minimized the possibility
of Pricer’s unnecessary travel to the unattended Cove Quarry mine on June 28, 2012.

36 FMSHRC Page 424

Consequently, the Secretary has failed to demonstrate by a preponderance of the evidence
that the Miller Springs intermittent loading activities warranted changing the status of the
Cove Quarry mine from “intermittent” to “closed,” as loading at a mine site constitutes mining.
Accordingly, Citation No. 8628189 citing an alleged violation of the reporting requirements
in section 56.1000 shall be vacated.
As a final note, this decision should be viewed in the context of the undisputed facts
in this case. It is significant that the Secretary has stipulated that Miller Springs intermittently
continued to fill orders from an existing stockpile throughout 2012.
ORDER
In view of the above, IT IS ORDERED that the Secretary’s Motion for Summary
Decision IS DENIED, and the Cross-Motion for Summary Decision filed by Miller Springs
Material, LLC, IS GRANTED.
Accordingly, Citation No. 8628189 IS VACATED, and the captioned civil penalty
proceeding IS DISMISSED.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

Distribution:
Carol Liang, Attorney, U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite
800, Denver, CO 80202-5708
Jesse Sepeda, Miller Springs Material LLC, 6218 Highway 317, P.O. Box 1598
/tmw

36 FMSHRC Page 425

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

February 19, 2014

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

v.

NORTHSHORE MINING COMPANY
Respondent.

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CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2011-818-M
A.C. No. 21-00831-255564
Docket No. LAKE 2011-834-M
A.C. No. 21-00831-258448
Docket No. LAKE 2012-499-M
A.C. No. 21-00831-283699
Docket No. LAKE 2012-536-M
A.C. No. 21-00831-283699
Docket No. LAKE 2012-728-M
A.C. No. 21-00831-292533
Mine: Northshore Mining Company

DECISION AND ORDER
Appearances:

Timothy Turner, Esq., U.S Department of Labor, Office of the Solicitor,
Denver, CO for the Secretary
Arthur Wolfson, Esq., Jackson Kelly, PLLC, Pittsburgh, PA for
Respondent

Before:

Judge Lewis

STATEMENT OF THE CASE
These cases are before the undersigned Administrative Law Judge on Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor against Respondent, Northshore
Mining Company (“Respondent” or “Northshore”), pursuant to Section 104 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §815(d). A hearing was held in Duluth, Minnesota on
August 27, 2013. The parties subsequently submitted post-hearing briefs.

36 FMSHRC Page 426

PROCEDURAL HISTORY
Between April 2011 and May 2012, MSHA Inspectors William H. Soderlind, Steven E.
Swenson, and Robert A. Marincel conducted several inspections of Northshore Mining Company
and issued numerous citations. Northshore Mining Company contested many of these citations,
69 of which were placed in five civil penalty dockets (LAKE 2011-818, LAKE 2011-834, LAKE
2012-499, LAKE 2012-536, and LAKE 2012-728). The total assessed penalty for those civil
penalty proceedings was $146,290.00. On May 9, 2013 a hearing was set in this matter. As the
date for the hearing approached, the parties settled 65 of the 69 citations (including all of the
subject citation issued by Inspectors Swenson and Marincel). The parties filed a Motion to
Approve Partial Settlement, which was granted on February 11, 2014. The remaining citations
were Citation No. 6564267 (LAKE 2011-834), Citation No. 6564223 (LAKE 2011-818),
Citation No. 6564235 (LAKE 2011-818), and Citation No. 6564248 (LAKE 2011-818). The
total assessed penalty for the remaining citations was $20,327.00. On August 28, 2013 a hearing
was held on these remaining citations.
STIPULATIONS
The parties have entered into several stipulations, admitted as Parties’ Joint Exhibit 1.1
Those stipulations include the following:
1. Northshore Mining Company is engaged in mining operations in the United States, and
its mining operations affect interstate commerce
2. Northshore Mining Company is the above-referenced mine. Northshore Mining Company
is an “operator” as defined in Section 3(d) of the Federal Mine Safety and Health Act of
1977, as amended (Mine Act), 30 U.S.C. 803(d).
3. Northshore Mining Company is subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §801 et. seq.
4. The Administrative Law Judge has jurisdiction in this matter.
5. The subject citations and orders were properly served by a duly authorized representative
of the Secretary upon an agent of Northshore Mining Company on the dates and places
stated therein, and may be admitted into evidence for the purpose of establishing their
issuance.
6. The exhibits to be offered by Northshore Mining Company and the Secretary are
stipulated to be authentic but no stipulation is made as to their relevance or the truth of
the matters asserted therein.

1

Hereinafter the Joint Exhibits will be referred to as “JX” followed by the number.
Similarly, the Secretary’s Exhibits will be referred as “GX” and Respondent’s Exhibits will be
referred to as “RX.”

36 FMSHRC Page 427

7. The assessed penalties, if affirmed, will not impair Northshore Mining Company’s ability
to remain in business.
8. MSHA Inspector William Soderlind was acting in his official capacity and as an
authorized representative of the Secretary of Labor when aforesaid citations and order
were issued.
Joint Exhibit 1 (see also Transcript at 6).2
Citation No. 6564267
I.

ISSUES

With respect to Citation No. 6564267, the issues to be determined are whether
Respondent’s alleged actions on May 3, 2011 were a violation of §56.14112(a)(1) and, if so,
whether that violation was significant and substantial (“S&S”), whether it was reasonably likely
to result in lost workday/restrict duty injury to one miner, whether it was the result of moderate
negligence, and the appropriate penalty for the violation.
II.

SUMMARY OF TESTIMONY

On May 3, 2011 Inspector William Soderlind issued Citation No. 6564267 for a guard
violation (GX-2).3 (Tr. 18). Soderlind issued Citation No. 6564267 because he observed a
violation of 56.14112(a)(1) in the pellet plant which he believed could endanger the safety of
miners. (Tr. 20). That standard states that guards must be constructed and maintained to
withstand the vibration, shock, and wear to which they are subjected during normal mining
operations. (Tr. 20).

2

Hereinafter the transcript will be cited as “Tr.” Followed by the page number.

3

At hearing, Soderlind was present and testified for the Secretary. (Tr. 13). At the time
of the hearing, he had worked for MSHA’s Duluth, Minnesota office as a metal/nonmetal mine
safety and health inspector for four years. (Tr. 13). In that capacity he inspected 50-80 mines a
year to ensure safety. (Tr. 13). Soderlind had been trained to become an inspector at the Mine
Safety and Health Academy in West Virginia. (Tr. 14). He also received journeyman refresher
training every two years. (Tr. 14, 82). Before working for MSHA, Soderlind worked
construction for seven years. (Tr. 14-15, 83). Before that he was in the Marine Corps for over
six years. (Tr. 15). His Marine Corps experience included work as crash, fire, and rescue
personnel. (Tr. 15, 83). He also attended a structural firefighting academy in Orange County,
California. (Tr. 15). Soderlind was certified as an EMT and a firefighter. (Tr. 15). Soderlind
also had an English degree. (Tr. 15). He had never worked in a taconite plant. (Tr. 83).

36 FMSHRC Page 428

Soderlind was at Respondent’s plant during May and April of 2011 for a regular, full
inspection.4 (Tr. 17). Respondent’s employee Brian Hill accompanied Soderlind during the
inspection.5 (Tr. 103). During the inspection Soderlind took handwritten contemporaneous
notes, which he reviewed during the hearing (GX-3). (Tr. 19, 83). He also had general field
notes (RX-17). (Tr. 83-84). When Soderlind observed a condition he would enter it into his
general field notes and then turn to the back pages of his note book to write his citation notes.
(Tr. 84).
The specific violative condition cited was a guard on the 124 conveyor that had come
apart in places leaving jagged metal stuck out where it could cut a miner. (Tr. 20, 28, 103-104).
This conveyor was in the pelletizer and elevated eight feet off the ground. (Tr. 104, 113). The
hanging guard was four or five inches from another portion of the guard, which itself was six
inches from the tail pulley. (Tr. 23-24). Originally, the guard had been temporarily welded, or
“tacked,” in place. (Tr. 22). Another guard had fallen completely off the 124 conveyor and was
hanging partway into the walkway. (Tr. 20, 22). The cited condition exposed the pulley.6 (Tr.
22).
The guards could have come apart from the vibration of equipment, contact from spilled
material, corrosion, improper construction, or other reasons. (Tr. 21). When the conveyor is
running there is some vibration and shaking. (Tr. 112). It would be hard to say how much the
pulley would vibrate when in operation. (Tr. 23). The area had wet processes, which could have
caused the guard to corrode and separate. (Tr. 26). Water and oxygen cause guards to wear, so
Respondent had to continually upgrade their guards. (Tr. 26).
During the inspection, the conveyor was running and the tail pulley was spinning. (Tr.
22-23, 112). A piece of the guard was hanging while the belt was running. (Tr. 112). If the
hanging guard were to contact the tail pulley it could shoot out into the walkway or under the
conveyor. (Tr. 24). The guard could get shot out after getting pulled into the pulley or it could
4

Respondent was owned by Cleveland Cliffs and the plant was located in Silver Bay,
Minnesota. (Tr. 16). Respondent engaged in iron ore mining and creation of taconite pellets.
(Tr. 16). There are roughly 400 miners at Respondent’s plant. (Tr. 114). At the time of the
hearing, Soderlind had inspected the plant a total of four times. (Tr. 15-16). His most recent
inspection lasted 9-weeks and occurred two weeks before the hearing. (Tr. 16). The plant was
inspected twice a year for between 9 and 14 weeks each time. (Tr. 16).
5

At hearing, Brian Hill was present and testified for Respondent. (Tr. 102). Both at the
time of the hearing and May of 2011, Hill was on the day crew for pelletizer operations. (Tr.
102). At the time of the hearing he took care of precips, dust collectors, and other environmental
pollution controls. (Tr. 102). When the instant citations were issued he was training and taking
care of equipment (the furnace, the ball and drums, etc.). (Tr. 102). He had worked for
Respondent for five and a half years and started in the mining industry in 1995. (Tr. 102-103).
He spent 13 years as a belt contractor, but worked at the Plant as he did so. (Tr. 103).
6

The tail pulley was about two feet in diameter and three feet wide. (Tr. 23). There was
a shaft through the pulley to the pillow block (which had a grease coming out of it). (Tr. 23).

36 FMSHRC Page 429

just fall. (Tr. 85). The walkway was right next to the pulley. (Tr. 24, 85, 104). The walkway
was about 30 inches wide and went all the way around the tail pulley. (Tr. 104). It would be
traveled a couple of times per shift, mostly by operators. (Tr. 104).
Further, there was a pile of taconite pellets by the tail pulley. (Tr. 24-25). The walkway
was grated so pellets should have fallen through. (Tr. 86, 113). However, sometimes the grates
clog and accumulations occur. (Tr. 86-87). Soderlind had seen places in the plant where pellets
had to be climbed over. (Tr. 33). He had issued citations for miners climbing past a tail pulley
where pellets had spilled. (Tr. 33). Soderlind testified that pellets were removed by shoveling
them out or onto the conveyor. (Tr. 25, 85). If a shovel contacted the pulley it could strike the
miner, pull the miner in the pulley, or knock a miner down. (Tr. 25). Hill testified that pellets
were removed with an air lance, not a shovel. (Tr. 113). The pellets that day were on a
structured beam, not the floor. (Tr. 113-114). Soderlind had seen miners shoveling pellet next to
an energized pulley, but not in this instance. (Tr. 25). Respondent sold the pellets, so they
would try to get them out quickly. (Tr. 87, 96-97). It could be an arduous process to shut down
the belt, lock it out, and tag it out. (Tr. 97). The belts are crucial to production and shutting
down the belt could shut down a whole section of the mine. (Tr. 97). As a result, Soderlind
testified that if the guards are in place, they just shoveled the product back on. (Tr. 86, 97-98).
Finally, Soderlind testified there was sharp metal sticking into the walkway. (Tr. 26).
There was also an opening in the guard itself. (Tr. 28). The metal in these areas was sharp
enough to break the skin if someone fell or rubbed against it. (Tr. 26, 28). Soderlind conceded
that there were no tripping hazards in the area and there were handrails. (Tr. 86). A miner might
contact the guard while cleaning, traveling, or greasing the pulley, possibly while carrying tools.
(Tr. 27). Hill testified that the edge on the guarding did not protrude into the walkway. (Tr.
106). There would be no reason to contact the guarding edges. (Tr. 106). Soderlind testified
that some miners wore latex gloves, but they did not provide protection. (Tr. 26-27). Hill
testified that most of the miners, including operators, wore strong leather gloves. (Tr. 107, 114,
117). The guard would not easily puncture those gloves. (Tr. 107). They would only go
through the leather if someone fell on the edges and there was no tripping hazard. (Tr. 107).
Hill did not recall any lost-time injuries from hand cuts at the plant. (Tr. 108). Latex gloves
were only used when hosing the swamp or in the lab. (Tr. 114). Respondent’s employees were
also trained to keep their hands and limbs away from moving equipment. (Tr. 106-107).
However, the area could be hot and miners sometimes had exposed arms. (Tr. 118).
The citation was marked “reasonably likely” because the guard was damaged in several
places and miners travelled in the area to apply grease, to examine belts, or to walk through. (Tr.
30, 87). The examinations were required under 56.18002, which applies to working areas. (Tr.
87-88). If the condition was not abated, it would get worse and a miner could contact the sharp
edge, receiving a laceration. (Tr. 27, 30). It was possible, but less likely, that a miner could
contact the shaft of the tail pulley. (Tr. 27, 30, 105). Hill stated the area was only traveled a
couple of times a day, the walkway was adequate, and structure blocked everything except an 8inch opening 20 inches off the walkway. (Tr. 105-106). Further, the tail pulley was recessed
four or six inches behind the guarding. (Tr. 106).

36 FMSHRC Page 430

The citation was also marked “lost workdays or restricted duty,” because someone could
cut their hand or leg during a fall or get a puncture wound requiring a tetanus shot or medical
attention. (Tr. 30-31). A miner contacting the rotating shaft could suffer permanently disabling
injury. (Tr. 31). The citation was marked as affecting one person because it was unlikely that
more than one person would injure themselves on the same guard at the same time. (Tr. 31).
The citation was marked S&S because there was reasonable likelihood of an injury that
was at least lost workday/restricted duty. (Tr. 31). The specific hazard was the loose guard with
jagged edges in the walkway. (Tr. 32). The deteriorating guard and the high traffic created the
likelihood of injury. (Tr. 32). The guard had corroded, which was evidence that the condition
had existed for months. (Tr. 32). Under normal mining conditions there was a strong likelihood
that a miner would be injured. (Tr. 32-33). This is especially true in light of the pellets in the
walkway. (Tr. 33).
The citation was marked as “moderate” negligence. (Tr. 33). Moderate negligence exists
where there are some mitigating factors. (Tr. 33). Soderlind considered violation history, the
location, visibility, and obviousness. (Tr. 34). Soderlind did not believe Respondent knew of
this condition, but should have. (Tr. 34). Respondent’s miners are a “self-directed” workforce
meaning the individual miners are supposed to tell management about any issues they come
across. (Tr. 34). Low negligence would be in a remote area. (Tr. 34).
Respondent terminated the citation by replacing the guard with a one that was better
constructed. (Tr. 34-35). The new guard had a large metal frame around it. (Tr. 28-29).
III.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact are based on the record as a whole and the Administrative Law
Judge’s careful observation of the witnesses during their testimony. In resolving any conflicts in
the testimony, the Administrative Law Judge has taken into consideration the interests of the
witnesses, or lack thereof, and consistencies, or inconsistencies, in each witness’s testimony and
between the testimonies of the witnesses. In evaluating the testimony of each witness, the
Administrative Law Judge has also relied on his demeanor. Any failure to provide detail as to
each witness’s testimony is not to be deemed a failure on the Administrative Law Judge’s part to
have fully considered it. The fact that some evidence is not discussed does not indicate that it
was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (administrative law
judge is not required to discuss all evidence and failure to cite specific evidence does not mean it
was not considered).
1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That 30 C.F.R. §56.14112(a)(1) Was Violated.
On May 3, 2011, Inspector Soderlind issued a 104(a) Citation, No. 6564267, to
Respondent. Section 8 of that Order, Condition or Practice, reads as follows:
Pellet Plant – The tail pulley guard for the 124 conveyor was corroded and falling
apart in several areas. Sharp jagged metal edges where the expanded metal had

36 FMSHRC Page 431

separated were found on all sides of the guard. This condition exposes miners to
laceration type injuries due to unexpected contact with the jagged metal.
(GX-2).
The cited standard, 30 C.F.R. §56.14112(a)(1) (“Construction and Maintenance of
Guards”), provides the following:
(a) Guards shall be constructed and maintained to—
(1) Withstand the vibration, shock, and wear to which they will be
subjected during normal operation; and
30 C.F.R. §56.14112.
Inspector Soderlind credibly testified that the cited guard was coming apart. (Tr. 20, 28,
103-104). Specifically, corrosion and vibration had caused the guard to break down. (Tr. 21).
When cited, the guard had ragged edges and was no longer properly blocking the tail pulley. (Tr.
20, 22, 28, 103-104).
In its brief, Respondent did not argue against the validity of Citation No. 6564267. The
Administrative Law Judge finds that Respondent conceded that it violated the standard. In light
of this fact, and the evidence presented, the Administrative Law Judge finds that this citation was
valid.
2. Considering The Record In Toto And Applying Applicable Case Law, The Violation
Was Reasonably Likely to Result in a Lost Workday/Restricted Duty Injury And
Significant And Substantial In Nature
Inspector Soderlind marked the gravity of the cited danger in Citation No. 6564267 as
“Reasonably Likely” to result in “Lost Workday/Restricted Duty” injury to one person. (GX-2).
These determinations are supported by a preponderance of the evidence.
The Mine Act requires that “gravity of the violation” be considered in assessing a
penalty. 30 U.S.C. §820. The Secretary has promulgated a three-factor inquiry to determine the
gravity of a citation for purposes of determining the penalty. Those factors are:
[T]he likelihood of the occurrence of the event against which a standard is
directed; the severity of the illness or injury if the event has occurred or was to
occur; and the number of persons potentially affected if the event has occurred or
were to occur.
30 C.F.R. §100.3(e).
The event against which the instant standard, 30 C.F.R. §56.14112(a)(1), is directed is
contact by a miner with moving conveyor pieces or with damaged pieces of the guard. The
particular guard here was designed to prevent contact with the tail pulley of the 124 conveyor.

36 FMSHRC Page 432

(GX-2). Inspector Soderlind credibly testified that given the state of the cited guard, contact
with the conveyor, or the broken guard itself, was reasonably likely. Specifically, Soderlind
testified that the cited area was next to a walkway where miners worked and traveled on a
regular basis. (Tr. 104, 30, 81). In fact, the broken guard was sticking out into the walkway and
miners shoveling pellets onto the belt could have contacted the belt with a shovel. (Tr. 20, 25,
28, 85-86, 97-98, 103-104). Given this exposure, the Administrative Law Judge finds that
contact with the broken guard or moving pieces of the conveyor was reasonably likely to occur.
Soderlind also credibly testified that if a miner were to contact the conveyor or the
broken guard, lost workday/restricted duty injuries would occur to one miner. Specifically, he
testified that under continued normal mining conditions a miner could place his hand on the
guard and receive a laceration. (Tr. 26-28). Further, miners often walked through the area in
their shirtsleeves. (Tr. 118). As a result, miners could walk past the cited area and brush their
arms against the damaged guard, resulting in lacerations. In addition to the risk from touching
the guard, Soderlind credibly testified that as time passed and the guard’s condition became
worse, the guard could be pulled into the pulley and then shoot out into the walkway, injuring a
miner. (Tr. 85). Finally, miners could be injured by their shovels when cleaning pellets. (Tr.
25). All of these conditions would only affect one miner. (Tr. 31). A preponderance of the
evidence supports the Inspector’s findings.
Respondent offered several arguments asserting that an accident was unlikely. However,
as Respondent discussed those arguments in relation to the S&S designation, they will be
discussed infra.
Well-settled Commission precedent sets forth the standard used to determine if a
violation is S&S. A violation is 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., National Gypsum Co., 3 FMSHRC 822,
825 (April 1981). The Commission later clarified this standard, explaining:
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).
With respect to the first element, the underlying violation of a mandatory safety standard,
it has already been established that Respondent violated 30 C.F.R. §56.14112(a)(1).
With respect to the second element of Mathies, a discrete safety hazard – that is a
measure of danger to safety – contributed to by the violation – Inspector Soderlind credibly

36 FMSHRC Page 433

testified that the violation, a damaged guard, contributed to the safety hazard of a miner grasping
or brushing the broken guard or coming into contact with the energized conveyor pulley.
The Secretary also argued that contribution to a discrete safety hazard should be
considered in light of the frequency with which the cited area is accessed, the position of the now
exposed part in relation to the miner, and the general condition of the walkway next to the
moving part exposed by the faulty guard. (Secretary’s Post-Hearing Brief at 11, citing Carder,
Inc., 27 FMSHRC 839, 844 (Nov. 2005)(ALJ Manning); Bachman Sand & Gravel, 34 FMSHRC
226, 231 (Jan. 2012)(ALJ Miller); and Baker Rock Crushing Co., 2010 WL 3616493, *8 (Aug.
2010) (ALJ Barbour)). Inspector Soderlind credibly testified that the area experienced heavy
foot traffic and was accessed regularly for examinations. (Tr. 30, 87). He also testified, and the
photographs confirmed, that the exposed tail pulley was directly next to the walkway. (Tr. 2224, 85, 104, 112)(GX-4, p.1). Finally, the inspector testified that there were slippery pellets in
the walkway creating an additional tripping hazard. (Tr. 24-25, 33, 86-87, 113).
Respondent produced several arguments for the proposition that this condition did not
contribute to a safety hazard, none of which are compelling.
First, Respondent argued under normal mining conditions, no one would contact the
jagged edges of the guard. (Respondent’s Post-Hearing Brief at 5-6). It argued that the edges
did not protrude into the walkway, that edges were inside the waterline between the guarding and
the walkways, and that there was no reason for a miner to reach toward these jagged edges. (Id.
at 6). The Administrative Law Judge credits the Inspector’s testimony that the jagged guard was
exposed in the walkway and that miners could touch or brush the jagged edges. (Tr. 20, 22, 26).
The photographs, specifically GX-4, p. 2, support this testimony. While it was possible that
some of the jagged edges were behind the waterline, the Administrative Law Judge finds that
under normal mining conditions miners would eventually contact these jagged edges.
Respondent also argued that miners were trained to stay away from moving parts.
(Respondent’s Post-Hearing Brief at 6). There is no reason to doubt Respondent’s assertion that
the miners received this training. However, even if it is true, that does not change the significant
and substantial nature of this violation. If training were sufficient, properly maintained guards
would not be required under 30 C.F.R. §56.14112(a)(1). The standard exists because MSHA
determined that, even in light of the extensive training miners are given, miners could be injured
by exposed moving parts. Whether through inadvertence or accident, even trained miners could
contact the moving pieces if no guard were in place. As a result, the hazard still existed despite
the training.
Finally, Respondent argued that there was no tripping hazard in the cited area.
(Respondent’s Post-Hearing Brief at 6 citing Baker Rock Crushing Co., 32 FMSHRC at 976 and
Carder, Inc., 27 FMSHRC at 844). As discussed supra, there were pellets in the walkway in this
area. (Tr. 24, 25, 86-87, 113). These marble-like pellets constituted a tripping hazard.
However, even if there were no pellets in this area, this would still be S&S. The only
requirement of the second prong of Mathies is that the violation contribute to a discrete safety
hazard. While a tripping hazard may create a greater likelihood of the hazard being realized, the

36 FMSHRC Page 434

fact that the guard was deficient had already made an accident more likely. Therefore, the
second prong of Mathies is met.
The third element of the Mathies test – a reasonable likelihood that the hazard contributed
to will result in an injury – was also met. The preponderance of the evidence establishes that the
hazard contributed to in this matter would be reasonably likely to result in injury.
The Commission clarified the third element of the Mathies test in Musser Engineering,
Inc., and PBS Coal Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an S&S
violation for using an inaccurate mine map). The Commission held that the “test under the third
element is whether there is a reasonable likelihood that the hazard contributed to by the violation,
i.e., [in that case] the danger of breakthrough and resulting inundation, will cause injury.” Id. at
1281. Importantly, it clarified that the “Secretary need not prove a reasonable likelihood that the
violation itself will cause injury.” Id. The Commission concluded that the Secretary had
presented sufficient evidence that miners who broke through into a flooded adjacent mine would
face numerous dangers of injury. Id. The Commission also emphasized the well-established
precedent that “the absence of an injury-producing event when a cited practice has occurred does
not preclude a determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906
(Dec. 2005); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996).
If the hazard contributed here were realized, specifically if a miner contacted the guard or
moving parts, an injury would be reasonably likely. If the miner contacted the jagged edge of
the guard, he would experience lacerations and perhaps infection. (Tr. 27, 30-31). If the guard
were pulled into the tail pulley and shot out, a miner would experience puncture wounds or
lacerations. Finally, if the miner’s shovel were to contact the belt, it would result in striking
injuries.
Respondent made several arguments attempting to show that there is no likelihood of
injury from the cited condition. None of those arguments are compelling.
First, Respondent argued that miners would not receive lacerations from contacting the
jagged guarding because they wore leather gloves. (Respondent’s Post-Hearing Brief at 7). The
Administrative Law Judge credits the testimony of Inspector Soderlind that miners often wore
latex gloves, which would not provide protection from lacerations. (Tr. 26-27). Further,
Respondent’s witness, Hill, testified that even wearing leather gloves, a miner could be injured if
he fell onto the guarding, because the leather gloves could be punctured . Given the pellets
littering the floor, a fall was a real possibility. Also, regardless of leather gloves, other parts of
miners’ bodies, including their arms, were exposed without any protection. (Tr. 118).
Next, Respondent argued that there was no possible injury caused by the gap in the
guarding exposing the tail pulley. (Respondent’s Post-Hearing Briefs at 7-8). Specifically,
Respondent argued that the pellets shown in the photographs were shown on the pillow block
inside of the guard and that in order to shovel the belt, the conveyor would have be de-energized.
(Id.). The Administrative Law Judge credits the testimony of the Inspector that pellets
accumulated in the cited area and that miners loaded the pellets onto energized conveyors. (Tr.
24-25, 85). Even if the pellets photographed were on the pillow block rather than the walkway,

36 FMSHRC Page 435

under normal mining conditions pellets would eventually accumulate on the walkway and need
to be shoveled.
Finally, Respondent argued that Soderlind’s testimony regarding injury dealt solely with
what “could” happen if the miner contacted the moving parts of the pulley. (Respondent’s PostHearing Brief at 9). Specifically, when asked what would happen if the guard contacted the
pulley, Soderlind said that the belt could shoot into the walkway, it could go under the conveyor,
or anything could happen. (Tr. 24). It argues that something that merely could happen is not
sufficient to support an S&S designation. (Respondent’s Post Hearing Brief at 9 citing Wolf Run
Mining, 32 FMSHRC 1669, 1677 (Dec. 2010), Texasgulf 10 FMSHRC 498, 500-1 (April 1998);
and Zeigler Coal, 15 FMSHRC 949, 952-54 (Jun. 1993)). Respondent is correct that the
Commission has consistently held that dangers that simply “could” happen are insufficient to
support an S&S designation. While the Administrative Law Judge believes that it is somewhat
likely that this guard would eventually contact the pulley and then shoot into the walkway, the
evidence does not support a finding that such an event is reasonably likely. However, the S&S
designation is not based solely on the danger posed by the guard shooting into the walkway. The
Administrative Law Judge finds that an injury was reasonably likely to result from a miner
falling on or grasping the broken guard or contacting the moving parts of the pulley. As a result,
the cited condition meets the third prong of the Mathies test.
Under Mathies, the fourth and final element that the Secretary must establish is that there
was a “reasonable likelihood that the injury in question will be of a reasonably serious nature.”
Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC at 1574. The Administrative Law
Judge finds that that the kinds of injuries expected here, lost workday/restricted duty injuries
from lacerations or striking, are reasonable serious in nature. See e.g. Carmeuse Lime & Stone,
Inc., 29 FMSHRC 284, 295-296 (Mar. 2007)(ALJ Hodgdon) and Lexicon, Inc., 24 FMSHRC
1014, 1022-23 (Nov. 2002)(ALJ Hodgdon).
Respondent argued that any lacerations that results from a miner contacting broken
guarding would be minor. (Respondent’s Post-Hearing Brief at 8). It noted there was no history
of lost workday/restricted duty injury from cuts to the hand at the plant. (Id.). The
Administrative Law Judge credits the testimony of the Inspector that the lacerations to be
expected from a fall onto the guard would be of a reasonably serious nature. (Tr. 30-31). The
fact that Hill was not aware of lost workday or restricted duty injuries at the plant does not
change this determination. The issue is whether the danger here presented a possibility for
serious injury, not whether there was a history of these accidents. Respondent’s good fortune in
avoiding injuries in the past does not affect the S&S nature of this citation.
As a result of these factors, the Administrative Law Judge finds that the Secretary proved
the violation was S&S by a preponderance of the evidence.
3. Respondent’s Conduct Displayed “Low” Rather than “Moderate” Negligence.
In the citation at issue, Inspector Soderlind found that the operator’s conduct was
moderately negligent in character. (GX-2).

36 FMSHRC Page 436

Standard 30 C.F.R. §100.3(d) provides the following:
(d) Negligence. Negligence is conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to protect miners
against the risks of harm. Under the Mine Act, an operator is held to a high
standard of care. A mine operator is required to be on the alert for conditions and
practices in the mine that affect the safety or health of miners and to take steps
necessary to correct or prevent hazardous conditions or practices. The failure to
exercise a high standard of care constitutes negligence. The negligence criterion
assigns penalty points based on the degree to which the operator failed to exercise
a high standard of care. When applying this criterion, MSHA considers mitigating
circumstances which may include, but are not limited to, actions taken by the
operator to prevent or correct hazardous conditions or practices.
In 30 C.F.R. §103(d), Table X, the category of high negligence is described thusly: “The
operator knew or should have known of the violative condition or practice and there are no
mitigating circumstances.” Conversely, moderate negligence is shown when “[t]he operator
knew or should have known of the violative condition or practice, but there are some mitigating
circumstances.” Low negligence is reserved for situations where there are “considerable”
mitigating circumstances.
With respect to the instant citation, Respondent did not have actual knowledge of the
cited condition. Even Inspector Soderlind admitted as much. (Tr. 34). Therefore, the question
is whether Respondent should have known the condition existed. A preponderance of the
evidence shows that it should have.
Inspector Soderlind credibly testified that that the cited condition was open and obvious.
(Tr. 34). Further, he stated that routine checks of the area would have discovered this condition
for correction. (Tr. 33-34). Finally, Respondent would have been aware that this guard was in a
wet, vibrating location and that these conditions could cause corrosion. (Tr. 26). Therefore,
Respondent should have known the condition existed.
Respondent argued that it should not have known the cited condition existed because the
cited area was not a “working area” within the meaning of the Act and no examination of that
area was necessary. (Respondent’s Post-Hearing Brief at 9). For the purposes of the Act,
“working place” means any place in or about a mine where work is being performed.7 30 CFR §
56.2. However, the Act also requires that “safe means of access shall be provided and
maintained to all working places.” 30 C.F.R. § 56.11001. It is uncontested that a walkway went
directly past the tail pulley. (Tr. 24, 85, 104). Even if Respondent is correct that the tail pulley
was not a working area (a dubious claim), the fact remains that walkways between working
places must also be examined and maintained. Therefore, Respondent should have known about
the condition of the cited guard as it was directly next to a walkway.
While Respondent should have known about the condition of the cited guard, there are
mitigating circumstances. Inspector Soderlind conceded that those mitigating circumstances
7

“Places” and “Areas” are terms that are apparently used interchangeably.

36 FMSHRC Page 437

existed. Specifically, he testified that Respondent did not have actual knowledge of the cited
condition and Respondent’s employees were a self-directed workforce. (Tr. 34). The Secretary
felt that these mitigating circumstances dictated a finding of “moderate” negligence. (GX-2).
However, in addition to those cited by the inspector, the Administrative Law Judge finds another
mitigating factor. While this was a working area of the mine and examinations were required,
the area was still relatively remote. Miners were not working in this area constantly and when
they were in the area they were passing through. As a result, these mitigating circumstances are
better characterized as “considerable” and a finding of “Low” negligence is appropriate.
4. Penalty
Under the assessment regulations described in 30 CFR §100, the Secretary proposed a
penalty of $3,143.00 for Citation No. 6564267. A recent Commission decision, Sec. v.
Performance Coal Co., (Docket No. WEVA 2008-1825 (8/2/2013) reaffirmed that neither the
ALJ nor the Commission is bound by the Secretary’ proposed penalties. (see also 30 U.S.C.
§820(i) and 29 C.F.R. §2700.30(b)). However, the Commission in Performance Coal, also held
that, although there is no presumption of validity given to the Secretary’s proposed assessments,
substantial deviation from the Secretary’s proposed assessments must be adequately explained
using §110(i) criteria. (Id. at p. 2). (see also Cantina Green, 22 FMSHRC 616, 620-621 (May
2000)). The ALJ finds that a substantial deviation from the Secretary’s proposed assessment is
warranted herein and will evaluate the factors contained in 30 U.S.C. §820(i) to explain that
deviation. Those factors are as follows:
(1) The Operator’s history of previous violations – Inspector Soderlind credibly testified
that Respondent had a history of these violations. (Tr. 34). Respondent’s violation history
supports this testimony. (GX-1).
(2) The appropriateness of the penalty compared to the size of the Operator’s business –
Northshore Mining Company has 770,129 yearly mine hours and Respondent has 2,179,873
yearly controller hours. According to MSHA’s penalty assessment guidelines this gives United
Plant 10 “mine size points” out of a possible 15 and Respondent seven “controller size points”
out of a possible 10. see 30 CFR § 100.3(b). Thus, Respondent is a large operator with an
above-average sized plant.
(3) Whether the Operator was negligent – As previously shown, Respondent’s negligence
is better characterized as “Low” rather than “Moderate” negligence
(4) The effect on the Operator’s ability to remain in business – The parties have
stipulated that the Orders at issue here would not affect Respondent’s ability to remain in
business. (JX-1)
(5) The gravity of the violation – As previously shown, the gravity of the cited danger
was reasonably likely to result in lost workday and restricted duty injuries to one miner. Further
the condition was S&S.

36 FMSHRC Page 438

(6) The demonstrated good-faith of the person charged in attempting to achieve rapid
compliance after notification of a violation – The evidence shows the condition was abated
rapidly and in good faith.
In light of the Administrative Law Judge’s decision to modify the negligence from
“Moderate” to “Low” a reduction in the assessed penalty is appropriate. Therefore, Respondent
is hereby ORDERED to pay a civil penalty in the amount of $2,000.00 with respect to this
violation.
Citation No. 6564223
I.

ISSUE

With respect to Citation No. 6564223, the issues to be determined are whether
Respondent’s alleged actions on April 6, 2011 were a violation of §56.20003(a) and, if so,
whether that violation was significant and substantial (“S&S”), whether it was reasonably likely
to result in lost workday/restrict duty injury to one miner, whether it was the result of moderate
negligence, and the appropriate penalty for the violation.
II.

SUMMARY OF TESTIMONY

On April 6, 2011 Inspector Soderlind issued Citation No. 6564223 (GX-6) for a violation
of 56.20003(a) which requires working areas of the mine, travel ways, passageways, store rooms,
and service rooms be kept clean and orderly.8 (Tr. 35-38). Specifically, the base of the #10 Silo
was open, allowing miners to come into contact with old equipment and unsafe conditions for
foot travel. (Tr. 37, 108, 122). Pellets were stored in the top of the silo and various tools and
parts were stored on the shelves in the bottom of the silo. (Tr. 38, 43, 108, 114, 122, 144).
There were also loose pellets on the ground. (Tr. 41). Pellets are slippery when spread out, less
slippery (but still capable of causing falls) when piled up. (Tr. 41). There was no lighting in the
silo. (Tr. 42). It would sometimes be lit by the sun, but three-quarters of the day would be dark.
(Tr. 42). Tim Aijala conceded that the inside of the silo was a mess.9 (Tr. 124). There were
pallets laying around and dried mud on the floor. (Tr. 124).

8

Hill accompanied Soderlind on this inspection. (Tr. 108).

9

At hearing, Tim Aijala was present and testified for Respondent. (Tr. 119). He had
worked for Respondent for 15 and a half years. (Tr. 120). He worked for a year as safety
inspector and spent 13 years loading boats and running heavy equipment. (Tr. 120). At the time
of the hearing he was employed by Respondent to operate the railroad. (Tr. 119). At the time of
the instant citations he was the safety inspector. (Tr. 120). As a safety inspector, he inspected
the plant every day looking for safety hazards and writing work orders. (Tr. 120). He also
accompanied MSHA inspectors. (Tr. 120). Before working for Respondent, Aijala spent eight
years working at an underground copper mine in Michigan. (Tr. 120). Aijala did not accompany
the inspector here, but went afterwards and looked at it before the abatement. (Tr. 121-122, 139140).

36 FMSHRC Page 439

If an area was sealed off, MSHA would not issue citations. (Tr. 49). MSHA requires
operators to barricade an area if it wishes to keep miners out, but there is no specific standard for
how to make the barrier. (Tr. 38-39). A barricade is supposed to physically prevent people from
entering. (Tr. 98). Here, Respondent had two one-inch diameter metal bars four feet apart that
were welded to the garage door for the silo to block access. (Tr. 39, 44, 109, 124). The top rail
was about four feet high and the lower rail was about two feet high. (Tr. 50-51). The bars across
the silo entrance were installed a year and a half to two years before the citation. (Tr. 123-124,
144). There was no sign saying that miners should not enter. (Tr. 44, 149). Aijala testified that
miners would be less likely to enter an area with a sign, but believed the barrier would prevent
entry. (Tr. 149). Soderlind testified that while the barrier was there, it was clear that it was not
preventing miners from going inside. (Tr. 43-44, 98).
Soderlind knew the barrier was not working because he looked into the silo from the
entrance and saw footprints on the ground.10 (Tr. 40-42, 98). Respondent intended to close the
area and not have anyone in the silo. (Tr. 98, 109). However, the barricade did not indicate that
people should not enter because there was no sign. (Tr. 98-99, 114). Hill and Aijala did not
believe anyone entered the silo after it was closed and knew it was barred. (Tr. 109-110, 124).
Everyone, including contractors, receive site specific training, MSHA training, and new miner
training. (Tr. 116-117). However, Hill did not know if they were told not to enter the silo; that
was not his job. (Tr. 116). Not going through the barricade was common sense. (Tr. 117, 124).
Before the citation, Aijala believed that the two bars were enough to barricade the silo. (Tr.
148). At the hearing, he believed it was not. (Tr. 148).
To get inside, miners would have to crawl through the barrier. (Tr. 45). While climbing
in or out they would be carrying something, as there was no other reason go there. (Tr. 45).
There was a hose in the walkway and pallets with various items on them. (Tr. 43). Soderlind
believed a miner would enter this silo, bent over, to get old idlers, come-alongs, belts, and
hoses.11 (Tr. 42-43, 51). However, Hill and Tim Aijala testified that nothing in the silo would
be needed in the course of normal operations. (Tr. 110, 123, 149). Aijala knew the equipment
was not in use because he had worked there 13 years and knew a new storage area was built.
(Tr. 123). Respondent no longer had the equipment to use the idlers in Silo #10. (Tr. 123).
Hill testified that that the footprints were not on the equipment in the silo, but only on the
ground. (Tr. 111). The ground was flat and smooth. (Tr. 111). Aijala testified that from the
doorway he could not see footprints on equipment. (Tr. 125, 145-146). However, he reviewed
the photograph marked GX-8, p. 1 and saw dried footprints on either a roll of rubber line techs or
a small roll of old belt. (Tr. 146). He could not tell if there were more than one set of footprints
in the photograph. (Tr. 146). The photograph marked GX-8, p. 2 showed many sets of
footprints on the floor, but Aijala thought they were all old. (Tr. 147).

10

Soderlind did not go inside the silo. (Tr. 88).

11

Soderlind believed he ask someone why miners would enter the silo. (Tr. 88). Such a
conversation would be in his field notes. (Tr. 88). However, Soderlind was unable to find a
record of such a conversation in either his field notes (RX-7) or citation notes (GX-7). (Tr. 89).

36 FMSHRC Page 440

Soderlind believed the footprints had been left recently; around a week. (Tr. 40). He
knew this because the door never closed and was exposed to the weather, including rain, snow,
and wind. (Tr. 40-41). These conditions would cover the footprints. (Tr. 41). All the witnesses
agreed this area was exposed to the elements. (Tr. 40-41, 115, 147-148). Soderlind believed
miners entered this area a couple of times a month, but it was hard to say for sure. (Tr. 43).
Hill conceded there were footprints in the area. (Tr. 117). However, he believed the
footprints were dried and not fresh. (Tr. 110). New prints would be in mud and then old tracks
would dry up. (Tr. 110, 115). He believed footprints probably occurred in the fall when it was
raining and then froze in winter. (Tr. 115-116). Hill also testified that the silo was close to the
water and the weather could change often. (Tr. 116). Aijala observed some footprints hardened
on the floor level. (Tr. 124-125). Aijala did not believe that the footprints were very recent. (Tr.
145). However, he could not say for certain if the footprints were from when the silo was a
storage room. (Tr. 144). It was possible that they had occurred after the area was closed. (Tr.
144-145). In this area, mud usually occurred from water seeping from the water system. (Tr.
145). That system was shut down in November and kept off until spring. (Tr. 145). The
footprints were at least from the previous fall, though he could not say for sure. (Tr. 145). If
miners entered the previous fall, someone would have entered after the barrier was built. (Tr.
148-149).
The cited silo was along a roadway. (Tr. 90). Soderlind could not see the footprints
while driving. (Tr. 90). If he had not seen footprints he would not have issued the citation. (Tr.
48). Respondent had a policy against miners going through barred areas. (Tr. 49). Bars were
common at the mine and, if Soderlind had not seen the footprints, he would have assumed that,
like other areas, no one entered. (Tr. 49). If miners had not entered, this would have been an
acceptable barricade. (Tr. 50).
There was a pile of pellets (Respondent’s product) in front of the silo. (Tr. 90-91). The
silo was near the boat load-out area where the pellets were placed on ships for delivery. (Tr. 91).
The piles of pellets would come and go. (Tr. 91). Hill testified that there was not a lot of traffic
in this area because when boats we reloading, no one was permitted underneath the conveyors to
the ship. (Tr. 108-109). Only five or six guys worked in that area. (Tr. 114).
The instant citation was marked “reasonably likely” because when miners access an area
with clutter on the floor (pallets, hoses, boards) and no lighting it was reasonably likely that
someone would trip and be injured. (Tr. 46-47).
The citation was marked “lost workdays or restricted duty,” because a miner could sprain
or strain a joint when falling in this area. (Tr. 47). The citation was also marked as affecting one
person because it was likely only one person would be in that area at a time. (Tr. 47).
The citation was marked S&S. (Tr. 47). The specific hazard was the clutter in the
walking and working space in the silo. (Tr. 47). The clutter in the silo and the fact that miners
entered this area to get tools and parts created a tripping hazard. (Tr. 47-48). An injury from
such a trip would be likely if the condition was not corrected. (Tr. 48).

36 FMSHRC Page 441

The citation was marked as “moderate” negligence because there was an attempt to
barricade the area. (Tr. 48). However, the condition was open and obvious and Respondent a
history of housekeeping violations. (Tr. 48).
Aijala spoke with Inspector Soderlind about the citation.12 (Tr. 125). He explained to the
inspector that Respondent had put up the bars to keep people out, that the mud was hardened,
and that it was hard to determine when someone was in the area. (Tr. 126).
Respondent terminated this citation by putting up caution tape between the bars and
ribbon that showed the nature of the hazard. (Tr. 45-46, 50, 90, 125). They took expanded metal
and welded it between the existing bars to prevent people from climbing into the silo. (Tr. 46,
125). The new barrier was sufficient and the silo and its contents could not be accessed. (Tr. 46,
90, 149-150). A sign was added. (Tr. 99, 125).
III.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That §56.20003(a) Was Violated.

On April 6, 2011, Inspector Soderlind issued a 104(a) Citation, Citation No. 6564223 to
Respondent. Section 8 of that Order, Condition or Practice, reads as follows:
Yards & Docks – Silo #10 had boot tracks through the fines on the ground
indicating that this silo had been accessed. This silo had pallets, idlers, and
various other debris and parts cluttered throughout the area. There is no walkway
maintained and the silo is supposed to be barricaded by two bars across the door
opening. These bars are easily defeated and the area can be accessed without
much effort. There was no sign posted prohibiting entry, and no other warning
tape or other hazard type of warning present. This condition exposes miners to
trip and fall hazards resulting in injury
(GX-6).
Standard 30 C.F.R. §56.20003(a) (“Housekeeping”) provides the following:
(a) Workplaces, passageways, storerooms, and service rooms shall be kept clean
and orderly;
30 C.F.R. §56.20003(a).
12

Aijala took inspection notes that day. (Tr. 121, 140-141). He would take a notepad
every day and compiles notes and then collect them in a bigger notebook. (Tr. 121-122). The
next day, when the citations are issued with numbers, he transfers his notes from his notebook to
a new set of notes. (Tr. 141-142). If a citation was issued when he is not present, he will talk
with the person who was with the inspector and, if possible, look at the condition himself. (Tr.
141).

36 FMSHRC Page 442

Inspector Soderlind credibly testified that the cited silo contained a large amount of
debris and used equipment. (Tr. 37, 41, 108, 122). Respondent’s witnesses conceded that the
area was dirty and not maintained. Therefore, the only issue is whether the cited silo was a
“storeroom” within the meaning of the standard or if this was a barricaded area where
maintenance was not required.
A preponderance of the evidence supports a finding that this was a storeroom. Inspector
Soderlind credibly testified that this silo was used to store old equipment and pallets. (Tr. 41).
While he conceded that Respondent intended to close this area, he also credibly testified that
miners entered this area either to retrieve equipment or to drop off old equipment. (Tr. 45, 98,
109). The fact that miners were entering the area was evidenced by the fact that foot prints were
visible on the floor and equipment of the silo. (Tr. 40-42, 98). Respondent’s witnesses conceded
these points. (Tr. 111, 117, 146-147). Therefore, the Administrative Law Judge finds that the
cited area was an active storeroom and that it was not being maintained in a clean and orderly
fashion.
Respondent offered several arguments to show that the instant citation was not validly
issued. However, these arguments are not persuasive.
First, Respondent noted that the degree of cleanliness in the given area of a mine is
dictated by the amount of use that area receives. (Respondent’s Post-Hearing Brief at 15 citing
Beco Construction Co., 23 FMSHRC 1182, 1194-95 (Oct. 2011)(ALJ Manning)). It argued that
the cited area was closed and that no one needed to enter the silo. (Id.). Therefore, it argued that
despite the debris on the floor, the floor was sufficiently maintained. (Id.). Further, it argued
that the area was not in as great a disarray as Inspector Soderlind cited, as the floor was smooth,
flat, and easily visible. (Id.). In short, Respondent argued that the condition of the silo was
sufficient given its limited use.
There was some evidence supporting Respondent’s contention that the cited silo was no
longer in use. Specifically, it was uncontested that Respondent intended to close the cited silo.
(Tr. 98, 109). Further, it was uncontested that if the area was closed, a citation would not have
been appropriate. (Tr. 49). However, a preponderance of the evidence showed that the silo was
in use. Specifically, it is uncontested that footprints were found inside the silo. (Tr. 40-42, 98,
111, 117, 146-147). This indicates that while Respondent may have intended to close the area,
the silo was still in use. Respondent presented evidence that these footprints were old, perhaps
from before the bars were placed on the silo. (Tr. 147). However, the Administrative Law Judge
credits the Inspector’s testimony that the footprints had been created relatively recently. (Tr. 4043). Even Respondent’s witnesses testified that the footprints, while old, occurred after
Respondent intended to close the silo. (Tr. 145, 148-149). Finally, as discussed supra, the
evidence supports a finding that the cited area was extremely disordered. Therefore, given the
continued use of the silo and the level of debris found therein, the cleanliness of the cited area
was insufficient
Respondent also argued that most of those footprints inside of the silo were mostly on the
floor, not the equipment or tools. (Respondent’s Post-Hearing Brief at 15). A preponderance of

36 FMSHRC Page 443

the evidence indicates that there were footprints on equipment and pallets as well as on the floor.
(Tr. 40-42, 98, 111, 117, 146-147). Respondent’s witness Hill testified that he could see
footprints on the belts on the floor. (Tr. 117). Even if Respondent was correct and miners
largely walked on the floor, equipment and pallets still constituted a tripping hazard within in the
silo. As a result, the location of the footprints in the mine support the issuance of this citation.
Finally, Respondent argued that the issue of whether the barricade was adequate is
completely irrelevant. (Respondent’s Post-Hearing Brief at 16-17). It argued that under Section
56.20011 and the MSHA Program Policy manual, that the barricade need only prevent
unintentional access to an area. (Id.). According to the Respondent, even if the barricade was
inadequate, that does not necessarily create a violation of the cited standard here. (Id.).
Respondent is correct, as far as that goes. Respondent was not cited for an improper
barrier and whether the barrier was adequate does not directly bear on the issue of Respondent’s
violation of 56.20003(a). The issue in this case is whether the silo was a storeroom and, if it
was, whether the silo was maintained. As discussed supra, a preponderance of the evidence
shows that the silo was actively used and inadequately cleaned. The state of the barrier is only
relevant in that if the barricade was more solidly constructed, miners could not have used the
silo. Having found that miners used the storeroom, the exact state of the barrier is entirely
irrelevant.
2. Considering The Record In Toto And Applying Applicable Case Law, The
Violation Was Unlikely to Result in a Lost Workday/Restricted Duty Injury
And Was Not Significant And Substantial In Nature
Inspector Sichmeller marked the gravity of the cited danger in Citation No. 6564223
“Reasonably Likely” to result in “Lost Workday/Restricted Duty” injury to one person. (GX-6).
These determinations are supported by a preponderance of the evidence.
The event against which the instant standard, 30 C.F.R. §56.2003(a) is directed is injury
caused by poorly maintained working areas. Here the cited area was poorly maintained. (Tr. 37,
108, 122). Even Respondent’s witnesses testified that there were pallets, tools, and equipment
strewn throughout the poorly lit silo. (Tr. 37, 42, 108, 122, 142). However, the preponderance
of the evidence shows that exposure to the cited condition was not frequent enough to justify a
finding that the injury was “reasonably likely.” Respondent’s witnesses credibly testified that
the cited area was located on a lightly used access road. (Tr. 108-109). Further, the evidence
indicated that while some miners had clearly crossed through the barrier into the silo, many of
the miners at the plant knew that two parallel bars indicated that the area was barred. (Tr. 49).
This further limited exposure to the cited condition. Therefore, the Administrative Law Judge
finds that there was some exposure to the cited condition, but that an injury was unlikely to
occur.
If a miner were exposed to this danger, a preponderance of the evidence shows he would
sprain or strain a joint when falling in this area. (Tr. 47). Only one person would be affected by
the cited condition. (Tr. 47).

36 FMSHRC Page 444

Having found that the exposure was limited and that an injury was unlikely, the
Administrative Law Judge finds that the cited condition was not S&S. see Florida Rock
Industries, Inc., 34 FMSHRC 745, 751-753 (Mar. 2012)(ALJ Zielinski) (holding that if exposure
is low and injury unlikely, a violation of 56.20003(a) is not S&S).
In light of the foregoing, the Administrative Law Judge finds that the cited condition was
unlikely to result in lost workday/restricted duty to one miner and that the violation was not
S&S.
3. Respondent’s Conduct Displayed Moderate Negligence
In the citation at issue, Inspector Soderlind found that the operator’s conduct was
moderately negligent in character. A preponderance of the evidence shows that Respondent
knew or should have known that the cited condition existed. The Administrative Law Judge
credits the testimony of Soderlind that the condition was open and obvious. (Tr. 48). The
footprints, which showed the miners were entering the silo, were clearly visible from outside.
(Tr. 48) Therefore, Respondent should have known that the condition existed. Further,
Respondent had a history of housekeeping violations, putting Respondent on notice that
maintenance was an area of concern. (Tr. 48, GX-1). Therefore, Respondent was negligent.
Respondent argued that it did not know and should not have known about the cited
condition. (Respondent’s Post-Hearing Brief at 21-22). Specifically, Respondent argued that
the footprints were not visible from the roadway. (Respondent’s Post-Hearing Brief at 22).
More broadly, it argued that it had no knowledge that people were entering the barricade. (Id.).
While the administrative Law Judge credits Respondent’s evidence that it did not have actual
knowledge of the cited condition, it should have known. The Administrative Law Judge credited
the testimony of Inspector Soderlind that the footprints were visible. (Tr. 48). Further,
Respondent should have ensured that the barricade was honored and checked to make sure that
miners were not using the area. Even a brief glance into the silo would have revealed the
footprints and alerted Respondent to the cited condition. Respondent cannot simply overlook an
area and then use this oversight to claim that it is not negligent. See Freeport McMoran
Morenci, Inc., 2013 WL 1187700, *8 (Jan. 2013)(ALJ Miller)(holding that a condition is not
“hidden” simply because it is ignored.). While Respondent did not have actual knowledge of the
conditions at the silo, it should have known about the instant violation.
While Respondent was negligent, there were mitigating circumstances. Specifically,
Respondent exercised diligence in barricading the area and creating a policy against entering
barred places. (Tr. 39, 44, 49-51, 109, 123-124). In light of these mitigating circumstances, a
finding of “Moderate” negligence was appropriate.
4. Penalty
As with the previous citation, the Administrative Law Judge finds that a substantial
deviation from the Secretary’s proposed assessment of $2,473.00 is warranted herein. Once
again, the factors contained in 30 U.S.C. §820(i) will be used to explain that deviation. Those
factors are as follows:

36 FMSHRC Page 445

(1) The Operator’s history of previous violations – Inspector Soderlind credibly testified
that Respondent had a history of these violations. (Tr. 48). Respondent’s violation history
supports this testimony. (GX-1).
(2) The appropriateness of the penalty compared to the size of the Operator’s business –
As discussed with respect to the earlier citation, Respondent was a large operator with an aboveaverage sized plant.
(3) Whether the Operator was negligent – As previously shown, Respondent’s negligence
is best characterized as “Moderate.”
(4) The effect on the Operator’s ability to remain in business – The parties have
stipulated that the Orders at issue here would not affect Respondent’s ability to remain in
business. (JX-1)
(5) The gravity of the violation – As previously shown, the gravity of the cited danger
was unlikely likely to result in lost workday and restricted duty injuries to one miner. Further the
condition was not S&S.
(6) The demonstrated good-faith of the person charged in attempting to achieve rapid
compliance after notification of a violation – The evidence shows the condition was abated
rapidly and in good faith.
In light of the Administrative Law Judge’s decision to modify the gravity of the cited
danger from “Reasonably Likely” and “S&S” to “Unlikely” and “Non-S&S” a reduction in the
assessed penalty is appropriate. Therefore, Respondent is hereby ORDERED to pay a civil
penalty in the amount of $1,000.00 with respect to this violation.
Citation No. 6564235
I.

ISSUE

With respect to Citation No. 6564235, the issues to be determined are whether
Respondent’s alleged actions on April 11, 2011 were a violation of §56.12032 and, if so, whether
that violation was significant and substantial (“S&S”), whether it was reasonably likely to result
in fatal injury to one miner, whether it was the result of moderate negligence, and the appropriate
penalty for the violation.
II.

SUMMARY OF TESTIMONY

On April 11, 2011 Soderlind issued Citation No. 6564235 (GX-9) for a violation of §56.12032
which requires cover plates to remain securely in place on electrical junction boxes and

36 FMSHRC Page 446

equipment unless under repair.13 (Tr. 51-54). The citation issued at the head end of the 67
conveyor outside of the plant. (Tr. 126). Here, the cover plate for an electrical junction box was
hanging, exposing the inner-conductors and electrical terminals.14 (Tr. 54, 56-57). These were
clearly visible and the inch-and-a-half terminals were bare. (Tr. 57, 133). Soderlind could not
inspect the inner conductors, but they were covered in dust. (Tr. 58). Aijala saw that the
condition was dusty, but this did not mean the plate had been off for a long time, without a tight
seal equipment gets dusty quickly. (Tr. 153). He believed that the wires were protected with a
rubber coating. (Tr. 133). Fewer than half of the 18 terminals were live. (Tr. 133).
The face plate could have fallen off from vibrations. (Tr. 62, 135). There were brackets
to keep the cover plate in place. (Tr. 61). MSHA did not require that all the screws attaching the
cover plate to the brackets be tightened, just that the plate be secure. (Tr. 62).
Soderlind testified that a cover plate dangling would be quite apparent. (Tr. 63). The
cited area was in continuous use. (Tr. 63). In the cited area, material dropped down into trucks
from chutes. (Tr. 63). There was also a conveyor that entered from the yard. (Tr. 63).
Sometimes miners would add material from the yard onto the conveyor. (Tr. 63, 126). The
material was then sent to the silos and kept there until the ships come. (Tr. 63). Soderlind
conceded that the condition was behind a set of stairs. (Tr. 94). He could not recall if he could
see the condition from the ground level, but he saw it as he was walking up the stairs to the area.
(Tr. 94-95). Aijala testified that this area was very infrequently traveled. (Tr. 126). He stated
no one was aware of the condition. (Tr. 135). If someone had been aware, they would have
called an electrician to put the box back on. (Tr. 135).
Miners would be in the cited area to clean with the hose and to examine. (Tr. 55, 60).
Hoses were used to clean out two chutes that feed two belts. (Tr. 55-56, 127). When miners
were hosing, they stood near the chutes. (Tr. 155). These hoses were high pressure, powerful
enough to knock a miner down. (Tr. 61). Only one miner would be using the hose at a time.
(Tr. 61). The chutes were cleaned four times a year when a crushed pellet product called sinter
was shipped. (Tr. 127-128, 152-153, 156). Sinter does not flow like pellets and can clog the
chutes. (Tr. 128, 152). Cleaning out the chute occurs outside in the elements, so there could be
rain or snow. (Tr. 153-154). Shipping occurred between late March and the middle of January.
(Tr. 156). However, there was still snow and ice during the shipping season. (Tr. 156). No one
would be in the area and no cleaning would occur during the non-shipping season. (Tr. 153). At
the time of the citation, no sinter boars had been to the plant in 2011. (Tr. 152, 156).
There was also a hose lying in the walkway near the junction box. (Tr. 59, 126). A
miner could trip over the hose if he was walking in the area and did not see it. (Tr. 59, 64). A
miner entering area to reach the electrical box and might be carrying a shovel or tools. (Tr. 59).
Soderlind testified the hose added to the hazard of the open box, making injury more likely. (Tr.
13

Aiajala accompanied Soderlind. (Tr. 126).

14

The junction box was about four and a half to five feet off the ground. (Tr. 57). There
was a handrail under the box, 44-inches off the ground. (Tr. 57). The box was between a footand-a-half and two feet above the handrail. (Tr. 57).

36 FMSHRC Page 447

59-60). Aijala testified that contact with these terminals was unlikely because someone would
have to fall against the wires. (Tr. 134). A fall was unlikely because there was no tripping
hazard. (Tr. 124). Contact with these terminals was unlikely because someone would have to fall
against the wires. (Tr. 134). He stated the hose did not present a tripping hazard because it was
coiled in a ball, the lighting was good (it was daylight), and there was room to walk around. (Tr.
132). At nighttime this area was well-lit with overhead sodium vapor lights. (Tr. 132). The
floor in this location was grated. (Tr. 156).
There were controls mounted on the cover plate. (Tr. 55, 57). These controlled the ram
and the limit switch.15 (Tr. 54). In order to use the controls a miner would put the plate back on
the box. (Tr. 91). However, Soderlind believed it was possible to use the box while the face was
hanging off. (Tr. 92, 100). Soderlind did not believe they would do so, it would make more
sense to put the face back on. (Tr. 92). He conceded that tripping over the hose was the most
likely hazard. (Tr. 92).
The citation was issued out in the yard and dock, the outside area of the mine. (Tr. 55,
58, 62). This increased the hazard because the box was exposed to the elements. (Tr. 58). Over
time the jackets from the wires would wear out. (Tr. 58).
The box was energized. (Tr. 58). Soderlind testified that an electrician verified that this
box was 110 volts, which is sufficient to kill a person. (Tr. 57, 60). In order to kill, 110 volts
would just need a path through the body; the miner would need to touch the box and, with the
other hand, some metal to complete the circuit. (Tr. 60). There were metal handrails, stairs, and
other structure in the area. (Tr. 60). In Aijala’s experience, 110 volts was not enough to prove
fatal. (Tr. 134-135, 151). Someone would just be shocked and then pull away. (Tr. 135).
However, he conceded he was aware that 110 volts could kill someone. (Tr. 151). That voltage
was the most common voltage and it was the most common cause of electrical death. (Tr. 151).
Aijala testified that the cited control box was not in use for any reason, though it had been
used before. (Tr. 128-129, 150). A new control box had been built behind the stairway near the
cited location. (Tr. 129-130). As a result, there would be no reason to enter this area because the
new box was installed. (Tr. 132-133). Accessing the new box would not require walking past
the one cited. (Tr. 131). Upon coming up the stairway in the area, the cited box was on the left,
the new box was on the right. (Tr. 131-132). Aijala conceded the old box was not being
repaired and not being tested. (Tr. 150). The cover plate was not off for maintenance. (Tr. 54,
150). Aijala further conceded that the old box was still energized. (Tr. 151). Aijala told the
inspector about the new box. (Tr. 135-136). However, while the box was no longer in use,
people still entered the area to hose out the sinter. (Tr. 151-152). People doing this task would
not be focused on the box. (Tr. 152).
15

Soderlind was not sure was the ram and limit switch were. (Tr. 55). The cited area
was a truck dump area and he believed the switch was related to clearing the chute, but was not
sure. (Tr. 55). Aijala testified that the controls were used to move the cylinder back and forth
between the belts. (Tr. 128-129). If maintenance was working on one of the belts it would use
the control box to direct the reclaimed pellets onto the other belt so one belt would continue to
run while they worked. (Tr. 129).

36 FMSHRC Page 448

The citation was marked “reasonably likely” because there was a hose in the walkway
and the junction box was exposed to the elements and water from the hose. (Tr. 64). Water
sprayed into the terminals may have increased the corrosion or tripped something. (Tr. 65).
The citation was marked “fatal” because this condition could lead to fatal electrocution,
burns, or shocks. (Tr. 65). A shock of 110 volts could cause a person to lose control of his
muscles and the ability to release something from his grip. (Tr. 65-66). Soderlind had read of
these types of injuries, he has never seen one himself. (Tr. 66). The citation was marked as
affecting one person because it was likely only one miner would be in the area. (Tr. 66).
The citation was marked S&S. (Tr. 66). The specific hazard was the electrical risk of the
open cover plate. (Tr. 66). The hazard would be likely to occur because miners were in the area,
the area was exposed to the elements, and there was dust in the box. (Tr. 66-67). The citation
was issued in April, so there could have been ice or snow. (Tr. 67). Under continuing mining
operations, an injury was reasonably likely. (Tr. 67).
The citation was marked as “moderate” negligence because the condition was in an open
and obvious area of the mine, the area experienced a lot of foot and vehicle traffic, and it could
be seen from outside. (Tr. 67-68). The office was nearby and all employees traveled through the
area to get to the silos, the boats, or the yard. (Tr. 68). Further, the dust in the box and on the
conductors inside indicated the condition had existed for some time. (Tr. 68).
To terminate the condition, Respondent screwed the four corners of the plate into the
existing metal framing. (Tr. 62, 68).
III.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That §56.12032 Was Violated.

On April 11, 2011, Inspector Soderlind issued a 104(a) Citation, Citation No. 6564235 to
Respondent. Section 8 of that Order, Condition or Practice, reads as follows:
Yards & Docks – The cover plate for the ram and limit switch, with control
switches mounted on the face, was dangling by live 110 volt inner conductors.
This was located at the shuttle level below the head of the 67 conveyor. A 1 ½
inch water hose was also in the walkway, creating an additional tripping hazard
(See Citation #6564236). This condition exposes miners to electrical hazards
resulting in serious injury.
(GX-9).

36 FMSHRC Page 449

Standard 30 C.F.R. §56.12032 (“Inspection and Cover Plates”) provides the following:
Inspection and cover plates on electrical equipment and junction boxes shall be
kept in place at all times except during testing or repairs.
30 C.F.R. §56.12032.
In the instant case, it is uncontested that there was a cover plate loose from a junction box
at the head of the 67 conveyor. (Tr. 51, 54, 56). There was no evidence that the box was being
tested or repaired. (Tr. 150).
In its’ brief, Respondent did not argue against the validity of Citation No. 6564235. The
Administrative Law Judge finds that Respondent conceded that it violated the standard. In light
of this fact, and the evidence presented, the Administrative Law Judge finds that this citation was
valid.
2. Considering The Record In Toto And Applying Applicable Case Law, The
Violation Was Significant And Substantial In Nature And Reasonably Likely
to Result in a Fatal Injury
Inspector Soderlind marked the gravity of the cited danger in Citation No. 6564235
“Reasonably Likely” to result in “Fatal” injury to one person. (GX-9). These determinations are
supported by a preponderance of the evidence.
The event against which the instant standard, 30 C.F.R. §56.12032, is directed is
electrocution by contact with live electrical equipment. In the instant case, the cited condition,
the hanging cover plate, exposed miners to bare terminals and conductors. (Tr. 55, 60). The
terminals were live. (Tr. 58). Inspector Soderlind credibly testified that, miners worked in this
area and were exposed to the electrical hazard. Further, a hose located in the area creating a
tripping hazard which increased the chances of contact with the junction box. (Tr. 59, 64, 126).
As a result, the Administrative Law Judge finds that contact with the electrical equipment was
reasonably likely. Soderlind also credibly testified that if a miner were to contact this electrical
equipment, the 110 volt charge was sufficient to cause fatal injuries to one miner. (Tr. 57, 60).
Respondent provided several arguments asserting that an accident was unlikely and that a
110 volt shock would be unlikely. As Respondent addressed those arguments as they related to
the S&S designation, they will be discussed infra.
Citation No. 6564235 was marked by Inspector Soderlind as S&S. (GX-9). It has
already been established that the first element of the Mathies S&S analysis, the underlying
violation of a mandatory safety standard, has been established with respect to this citation. As
discussed supra, Respondent violated 30 C.F.R. 30 C.F.R. §56.12032.
The second element of Mathies, a discrete safety hazard – that is a measure of danger to
safety – contributed to by the violation, is also met. The preponderance of the evidence shows
there cited condition, a hanging cover for a junction box, contributed to the hazard of contacting

36 FMSHRC Page 450

live electrical terminals. Specifically, the uncontested evidence showed that the cover of the
junction box was off and that the terminals within were live. (Tr. 54, 56-58, 151). The fact that
the wires were exposed increased the likelihood that a miner would be electrocuted.
Respondent produced several arguments for the proposition that this condition posed no
hazards. None of these arguments are persuasive. First, Respondent argued that there was no
reasonable hazard because miners rarely entered the cited area, limiting expsoure. (Respondent’s
Post-Hearing Brief at 27-28 citing Essroc Cement Corp., 33 FMSHRC 459, 467-68 (Feb.
2011)(ALJ Manning); Buffalo Crushed Stone, 16 FMSHRC 2154, 2158 (Oct. 1994)(ALJ
Weisberger); Danaco Exploration International, 13 FMSHRC 1962, 1966 (Dec. 1991)(ALJ
Morris); and Higman Sand & Gravel, Inc., 27 FMSHRC 641, 643-44 (Sep. 2005)(ALJ
Manning)). Respondent argued extensively that the instant citation is similar to the condition in
Higman Sand & Gravel, Inc. In that case, the ALJ found that the cited condition was located in
an area where, under normal mining conditions, no miners would ever enter. 27 FMSHRC at
643-644. Respondent argued that this was analogous to the instant situation wherein miners only
entered the cited area four times a year. (Id.).
While it is true that miners were not always exposed to the cited violation, under
continued normal mining conditions, exposure was certain. Unlike in Higman Sand & Gravel,
Inc., if the condition had not been abated, miners eventually would have been ordered into this
area to clean out the chutes. This would have occurred at least four times a year. (Tr. 127-128,
152-153, 156). Therefore, there would have been exposure. When working on the chutes,
miners would have been working in wet conditions and exposed to the elements in the direct
vicinity of the cited box. (Tr. 153-154, 156). There would also have been tripping hazards in the
area. (Tr. 54, 64). Therefore, unlike in Higman Sand & Gravel, Inc., miners would actually be
exposed to the junction box.
Respondent also argued that that the cited box was old and no longer in use, thereby
eliminating exposure to the cited condition. (Respondent’s Post-Hearing Brief at 27-28).
Respondent noted that Soderlind was not aware that there was a new box when he cited the
exposed junction box. (Id.). However, the fact that there was a new junction box probably
increased, rather than decreased, the chances that a miner would contact the bare terminals.
Miners working in this area would know that there was a new junction box. Further, given the
decrepit condition of the cited box, miners would reasonably conclude that the box was no longer
in use and, as a result, no longer energized. Miners might touch the box or simply behave less
cautiously around it believing that Respondent would not energize unnecessary electrical
equipment, increasing the chances for exposure. In effect, an “old” energized junction box might
have a greater chance of dangerous conduct than a “new” energized junction box.
Respondent also argued that miners working in this area would be using the hose, so it
would not present a tripping hazard. (Respondent’s Post-Hearing Brief at 30). Further, the hose
was sprayed away from the cited box. (Id.). The Administrative Law Judge finds that a
preponderance of the evidence supports a finding that the cited condition poses an S&S hazard
even without a tripping hazard. There was an open junction box with live electrical terminals in
an area where miners were working. (Tr. 51, 54, 56-59, 64,126, 151). The possibility that there
was a tripping hazard merely adds to that existing danger. Further, even if miners would be

36 FMSHRC Page 451

using the hose and spraying away from the junction box, under normal mining conditions there
would still be situations where the hose would be placed on the ground or when water was on the
ground, creating tripping hazards. Respondent’s argument in no way limits the hazard.
In light of the foregoing, the Administrative Law Judge finds that the second prong of
Mathies is met.
The third element of the Mathies test – a reasonable likelihood that the hazard contributed
to will result in an injury – is also met. In the event that a miner were to contact the electrical
terminal, he would be electrocuted by 110 volts of electrical current. (Tr. 57, 60). There is no
question that this would cause an injury.
The fourth element - a reasonable likelihood that the injury in question will be of a
reasonably serious nature – is also met. There is no question that electrocution could cause
serious injury or even death. (Tr. 57, 60, 151). The voltage in the cited junction box, 110 volts,
has caused more fatal electrocutions than any other voltage. (Tr. 151). As a result, the fourth
prong of Mathies is met.
The Administrative Law Judge finds that the cited condition was reasonably likely to
result in a fatal injury to one miner. Further, the cited condition was S&S.
3. Respondent’s Conduct Displayed Moderate Negligence
In the citation at issue, Inspector Soderlind found that the operator’s conduct was
moderately negligent in character. A preponderance of the evidence supports this determination.
Respondent knew or should have known of the cited condition. The condition was open and
obvious and was located near the office, the roadway and the truck load out area. (Tr. 63, 6768). Further, Respondent knew that vibrations could cause junction boxes to become uncovered.
(Tr. 135). Further, because it had ordered the junction box to be replaced, Respondent had to be
aware that it had an energized junction box that was no longer being examined or maintained.
As a result, Respondent was negligent.
Respondent offered several argument to show that it did not know and should not have
known about the cited condition. First, Respondent argued that this was not a high traffic area
and the condition was not readily visible. (Respondent’s Post-Hearing Brief at 31). As noted
supra, while miners may not have been at the cited junction box at all times, it was in a general
area where miners and management would be traveling and working. Further, Respondent knew
that it had an abandoned, but energized, junction box that was no longer being maintained and
examined. As a result, it should have known that the box could pose a hazard and was negligent.
Respondent also argued that this condition was likely caused by vibrations, meaning that
no one would notice it as it occurred. (Respondent’s Post-Hearing Brief at 31). Respondent was
clearly aware that vibrations could cause the cover plate to fall off. (Tr. 135). Therefore, it
should have been aware that the cited condition was possible and acted affirmatively to prevent
or correct it. Therefore, Respondent was negligent.

36 FMSHRC Page 452

While Respondent was negligent, there were mitigating circumstances. Specifically,
miners were not working in this area at all times. (Tr. 127-128, 152-153, 156). As a result, a
finding of moderate negligence was appropriate.
4. Penalty
In light of the fact that the Administrative Law Judge has affirmed the Secretary’s
citation as issued, it is appropriate to affirm the assessed penalty as issued. Therefore,
Respondent is hereby ORDERED to pay a civil penalty in the amount of $11,306.00 with
respect to this violation.
Citation No. 6564248
I.

ISSUE

With respect to Citation No. 6564248, the issues to be determined are whether
Respondent’s alleged actions on April 18, 2011 were a violation of §56.20003(b) and, if so,
whether that violation was significant and substantial (“S&S”), whether it was reasonably likely
to result in lost workday/restricted duty injury to one miner, whether it was the result of
moderate negligence, and the appropriate penalty for the violation.
II.

SUMMARY OF TESTIMONY

On April 18, 2011 Soderlind issued Citation No. 6564248 (GX-12) for a violation of
56.20003(b) which requires every work area and passageway be kept clean, orderly, and dry.
(Tr. 68-70). Here, the area behind the tail end of the 45 conveyor was wet, slippery, and had a
buildup of taconite fines on the floor. (Tr. 70, 95, 138). He did not measure how deep it was.
(Tr. 75). There was also a pellet spill nearby. (Tr. 70, 72). Loose pellets are like marbles. (Tr.
73). Some pellets were in the wet fines but others were in a different area. (Tr. 95). The
condition could occurred during a shift. (Tr. 75).
Soderlind knew this area was wet, muddy and slippery because he tested it with his foot.
(Tr. 71, 75). He did not walk through the material. (Tr. 96). There was a lot of moisture and
steam in the mine. (Tr. 74). Water could also spill in this area. (Tr. 74-75). The cited area was
low in the mine and so water would settle there. (Tr. 75). Aijala believed that the fines were dry
and had good traction because he drug his feet across them. (Tr. 137-138). He also did not walk
through the fines. (Tr. 154).
Soderlind observed footprints in the muddy conditions on the floor, but he could not tell
if there was more than one set. (Tr. 72, 80). Aijala believed that the footprints in the material
showed good traction because they were well-defined, rather than showing a slip. (Tr. 137-138).
There was no evidence anyone had slipped. (Tr. 138).
According to Soderlind, miners accessed this area on foot often, through a set of double
doors, to access the plant. (Tr. 72-74). Miners would either go through the doors, climb the
stairs, or take the walkway around the conveyor. (Tr. 74). When traveling through this area,

36 FMSHRC Page 453

miners might be carrying tools or equipment. (Tr. 76). The cited conditions were about ten feet
from the stairs. (Tr. 73). Aijala testified that the tail end of 45 conveyor was remote. (Tr. 136).
He stated miners did not normally travel in this area during the normal routine. (Tr. 136-137).
At the plant, miners act as representatives for Respondent and identify, report, and correct
hazards. (Tr. 80). Workers were to “clean through” meaning that if miners have to travel
through an area with a hazard they have to stop and clean up. (Tr. 76). This was not a written
policy. (Tr. 154). If a miner did not have time to clean, the area was barricaded off with danger
tape and the condition recorded. (Tr. 76). The length of time between taping off and cleaning
the condition would depend on the worker’s schedule. (Tr. 154-155). In the cited area, there
was no barricade or danger tape. (Tr. 76, 154).
Soderlind testified that Respondent did not have a cleaning crew, but other similar mines
hired a cleaning crew or a person to clean conditions constantly. (Tr. 81-82). Aijala testified
that Respondent’s day crew cleaned the floors and there were workers on the shift who cleaned.
(Tr. 138-139). He believed, under normal mining conditions, this area would be cleaned. (Tr.
139). Soderlind testified that it would take no more than ten minutes to clean the cited condition
with a hose. (Tr. 75, 77-78). He had seen similar areas cleaned. (Tr. 75).
The citation was marked “reasonably likely” because there were footprints going through
the condition and this was a high traffic area. (Tr. 78). Soderlind believed that someone would
eventually slip on the fines or pellets and injure himself. (Tr. 78).
The citation was marked “lost workday/restricted duty” because this condition could lead
to sprained or strained ankles, knees, elbows, wrists, or similar conditions. (Tr. 78). This
citation was marked as affecting one person. (Tr. 79).
The citation was marked S&S. (Tr. 79). The specific hazard was slip and fall on the
pellets or fines. (Tr. 79). Miners slipping on pellets was common. (Tr. 79). The hazard would
be likely to occur because miners traveled this area often. (Tr. 79). Under continuing mining
operations, an injury was reasonably likely. (Tr. 79-80).
The citation was marked as “moderate” negligence because Respondent had a history of
housekeeping violations and because miners traveled through this area often. (Tr. 80).
Soderlind had cited Respondent for similar violations and also seen others. (Tr. 81). The cited
condition was not “high” negligence because he did not believe that management knowingly told
miners to walk through the cited condition. (Tr. 81). However, it was not “low” negligence
because it was open, obvious, and should have been addressed. (Tr. 81).
This citation was terminated when Respondent cleaned the cited condition. (Tr. 82).
The area was sprayed down, cleared of all the slippery fine material, and the pellets were
removed with a hose. (Tr. 77). Pellets could also have been cleaned with a shovel. (Tr. 77).

36 FMSHRC Page 454

III.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The
Evidence That §56.20003(b) Was Violated.

On April 18, 2011, Inspector Soderlind issued a 104(a) Citation, Citation No. 6564248 to
Respondent. Section 8 of that Order, Condition or Practice, reads as follows:
Pellet Plant – The walkway around the tail end of the 45 conveyor was covered in
wet, slippery fines material and pellets. The affected area was approximately 20
ft. long by 6 ft. wide with foot tracks coming and going through the entire length
of the affected area. This condition exposes miners to slip/fall hazards resulting
in injury.
(GX-12).
Standard 30 C.F.R. §56.20003(b) (“Housekeeping”) provides the following:
(b) The floor of every workplace shall be maintained in a clean and, so far as
possible, dry condition. Where wet processes are used, drainage shall be
maintained, and false floors, platforms, mats, or other dry standing places shall be
provided where practicable; and
30 C.F.R. §56.20003.
In the instant case, it is uncontested that the walkway near the tail end of the 45 conveyor
had an accumulations of fines. (Tr. 70, 72, 95, 138). The cited condition was 20 feet long by 6
feet wide. (Tr. 71-73).
In its’ brief, Respondent did not argue against the validity of Citation No. 6564248. The
Administrative Law Judge finds that Respondent conceded that it violated the standard. In light
of this fact, and the evidence presented, the Administrative Law Judge finds that this citation was
valid.
2. Considering The Record In Toto And Applying Applicable Case Law, The
Violation Was Significant And Substantial In Nature And Reasonably Likely
to Result in a Lost Workday/Restricted Duty Injury
Inspector Soderlind marked the gravity of the cited danger in Citation No. 6564248
“Reasonably Likely” to result in “Lost Workday/Restricted Duty” injury to one person. (GX12). These determinations are supported by a preponderance of the evidence.
The event against which the instant standard, 30 C.F.R. §56.20003(b), is directed is
injury caused by poorly maintained working areas. With respect to the instant citation, the
condition, an improperly maintained walkway, exposed miners to the possibility of injury.
Inspector Soderlind credibly testified that the walkway was covered in an accumulation of mud

36 FMSHRC Page 455

and pellets, creating a slip and fall hazard. (Tr. 70, 72, 95, 138). He knew the area was slippery
because he tested it with his foot. (Tr. 71, 75). He also testified that this was a high traffic area.
(Tr. 72-74, 79). In fact, he observed footprints through the cited condition, showing that miners
were exposed to the condition. (Tr. 72, 80). Therefore, the Administrative Law Judge finds that
it was reasonably likely that a miner would suffer a lost workday/restricted duty injury from a
slip and fall.
Respondent provided several arguments asserting that an accident was unlikely. As
Respondent addressed those arguments as they related to the S&S designation, they will be
discussed infra.
Citation No. 6564248 was also marked as S&S. (GX-12). It has already been established
that the first element of the Mathies S&S analysis, the underlying violation of a mandatory safety
standard, has been established with respect to this citation. As discussed supra, Respondent
violated 30 C.F.R. 30 C.F.R. §56.20003(b).
With respect to the second element of Mathies, a discrete safety hazard – that is a
measure of danger to safety – contributed to by the violation, the preponderance of the evidence
shows that the violation created a tripping hazard. Inspector Soderlind credibly testified that
that the cited walkway contributed to the hazard of slipping and falling. (Tr. 73, 79). The
walkway was covered in accumulations of slippery mud and taconite pellets. (Tr. 70, 72, 95,
138). Soderlind knew the condition was slippery because he tested it with his boot. (Tr. 71, 75).
These conditions support a finding that the violation contributed to a discrete safety hazard. See
e.g. Imerys Pigments, LLC, 28 FMSHRC 180, 182-184 (Mar. 2006)(ALJ Melick).
Respondent produced several arguments for the proposition that this condition posed no
hazards. These arguments were not persuasive. First, Respondent argued that the cited
condition was located in a remote area with little foot traffic. (Respondent’s Post-Hearing Brief
at 36). Respondent noted that where there was limited exposure, a finding of S&S was
inappropriate. (Id. at 35 citing Placerville Industries, Inc., 27 FMSHRC 115, 119-21
(2005)(ALJ Manning)). As noted supra, Inspector Soderlind credibly testified that miners
traveled through this area regularly. (Tr. 72-74, 79). He testified at length about the various
directions miners could travel from the walkway. (Tr. 72-74). Further, the fact that footprints
were found in the accumulations shows that miners were accessing this area. (Tr. 72, 80).
Therefore, the Administrative Law Judge finds that there was sufficient traffic in this area to find
S&S.
Respondent also argued that the foot prints in the cited area were minimal and did not
show that there was a “regular” hazard. (Respondent’s Post-Hearing Brief at 36 citing Patriot
Mining, 31 FMSHRC at1470). While there may not, at that time, been a large number of
footprints, that does not show that this hazard was not S&S. Under normal mining conditions,
and without abatement, more miners would have been traveling through this area. (Tr. 79, 80).
The fact that only a small number of miners, at the time of the citation, had traveled through the
area attests to Respondent’s good luck in being cited early, rather a limited amount of exposure.

36 FMSHRC Page 456

Finally, Respondent testified that the cited condition was coarse and dry rather than
slippery. (Respondent’s Post-Hearing Brief at 36-37). Aijala testified that he tested the material
with his feet and found that it was dry and had good traction. (Id.). Further, the “firm”
footprints showed that the material was not slick. (Id.). The Administrative Law Judge credits
the testimony of Inspector Soderlind that the material was wet and slippery. (Tr. 71, 73, 75, 79).
The photograph evidence supports a finding that the walkway was slick. (GX-14, p. 1). Further,
even if the material was largely dry, it would still make the walkway slippery and increases the
likelihood of an injury. As a result, the Administrative Law Judge finds that the sector prong of
Mathies is met.
The third element of the Mathies test – a reasonable likelihood that the hazard contributed
to will result in an injury – is also met. In the event that a miner were to slip and fall on the
walkway, injuries including sprains, strains, and broken bones would be expected. (Tr. 78).
Respondent argued that there was no evidence that an injury could result beyond the
Inspector’s experience. While it is possible that no slip and falls had ever caused injury at
Respondent’s plant, the Administrative Law Judge credits the inspector’s testimony that such a
fall could result in sprains, strains, and broken bones. (Tr. 78).The inspector’s testimony
regarding his experience constitutes evidence regarding the likelihood of an injury. Buck Creek
Coal, Inc. v. Federal Mine Safety and Health Admin., 52 F.3d 133, 135-136 (7th Cir.
1995)(holding that “no further evidence” beyond the Inspector’s testimony is necessary to find
that a violation was reasonably likely to result in injury and was S&S); see also Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278-1279 (Dec. 1998). There is no requirement that
the Inspector prove that an injury occurred in this particular case or testify directly regarding an
identical situation. As a result, the Administrative Law Judge finds that the third element of
Mathies is met.
The fourth element - a reasonable likelihood that the injury in question will be of a
reasonably serious nature – As noted supra, an injury caused by slip and fall would be of a
reasonably serious nature.
Respondent argued that a slip and fall type injury would not constitute an injury of a
reasonably serious nature. (Respondent’s Post-Hearing Brief at 37). Respondent cites
Placerville Industries, Inc., for the proposition that a slip and fall would not result in a
reasonably serious injury. 27 FMSHRC at 121. However, slip and fall injuries are not, as a
matter of law, always minor. There are several ALJ cases that find hazards that pose slip-andfall risks to be S&S. See e.g. Oak Grove Resources, LLC, 35 FMSHRC 3039, 3052 (Sept. 2013)
(ALJ Zielinski); Oil-Dri Production Company, 32 FMSHRC 1761 (Nov. 2010) (ALJ Manning);
and Mach Mining, LLC, 32 FMSHRC 213 (Feb. 2010) (ALJ Weisberger). The determination of
whether a violation is S&S, including whether it would result in a reasonably serious injury is
based on the particular circumstances of that violation. Texasgulf Inc., 10 FMSHRC at 501.
Therefore, whether the slip and fall injuries expected here would result in a reasonably serious
injury must be determined based on the specific circumstances surrounding this violation. The
Administrative Law Judge finds the cited condition was extremely wet and slippery and also
located in an area where there were staircases and a large amount of equipment. (Tr. 71-75, 79).
As a result, a reasonably serious injury was reasonably likely.

36 FMSHRC Page 457

The Administrative Law Judge finds that the cited condition was reasonably likely to
result in a lost workday/restricted duty injury to one miner. Further, the cited condition was
S&S.
3. Respondent’s Conduct Displayed Moderate Negligence
In the citation at issue, Inspector Soderlind found that the operator’s conduct was
moderately negligent in character. A preponderance of the evidence supports this designation.
Inspector Soderlind credibly testified that the cited condition was open and obvious. (Tr. 80).
Further, Respondent had a history of housekeeping violations, placing them on notice that this
type of issue would arise. (Tr. 80, GX-1). While it is likely that Respondent did not have actual
knowledge of the cited condition, it should have known. Therefore, it was negligent.
Respondent argued that consideration of the history of housekeeping violations was
inappropriate. (Respondent’s Post-Hearing Brief at 39). Specifically, it noted that the only issue
with respect to negligence is whether Respondent knew or should have known of the cited
condition and that prior actions do not matter for this inquiry. (Id.). Respondent misunderstands
the way in which past violations are used in determining negligence. Respondent is not being
punished again for past violations, instead past violations are used to show Respondent had
notice. Black Beauty Coal Co. v. Federal Mine Safety and Health Review Com'n, 703 F.3d 553,
561-562 (D.C.Cir. 2012)(holding that past violations provide awareness to a mine operator and
are relevant for both unwarrantable failure and negligence determinations). Showing that
Respondent had been cited for housekeeping issues in the past shows that Respondent knew
these conditions could and would arise but failed to take proper precautions. As a result, the
Administrative Law Judge considers the credible evidence submitted on that point to be relevant
to determining Respondent’s negligence
Respondent also argued that it should not have known about the condition because the
cited area was remote and rarely traveled. (Respondent’s Post-Hearing Brief at 38). As
discussed with respect to gravity supra, the Administrative Law Judge credits the testimony of
the inspector that miners traveled with some regularity in this area. (Tr. 72-74, 79). Further, the
footprints in the material attested to the fact that miners were required to walk in this area. (Tr.
72, 80). A preponderance of the evidence shows that miners worked in this area. As a result, the
failure to maintain it constituted negligence.
While Respondent was negligent, there were mitigating circumstances. Specifically,
Inspector Soderlind noted that the mine used a “clean through” program that allowed miners to
inspect the mine. (Tr. 81-82). Therefore, management may not have been aware of the cited
condition. Further, as Respondent argued, a cleaning crew at the mine was tasked with cleaning
these areas. (Respondent’s Post-Hearing Brief at 38). Eventually, this crew may have cleaned
the cited condition even if Respondent had not been cited. As a result, a finding of moderate
negligence was appropriate.

36 FMSHRC Page 458

4. Penalty
In light of the fact that the Administrative Law Judge has affirmed the Secretary’s
citation as issued, it is appropriate to affirm the assessed penalty as issued. Therefore,
Respondent is hereby ORDERED to pay a civil penalty in the amount of $3,405.00 with respect
to this violation.
ORDER
It is hereby ORDERED that Citation Nos. 6564267, 6564223, 6564235, and 6564248 are
AFFIRMED as modified herein.
Respondent is ORDERED to pay civil penalties in the total amount of $17,711.00 within
30 days of the date of this decision.16
/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge
Distribution:
Timothy Turner, Esq., U.S Department of Labor, Office of the Solicitor, 1999 Broadway, Suite
800, Denver, CO 80202-5708
Arthur Wolfson, Esq., Jackson Kelly, PLLC, 401 Liberty Avenue, Suite 1500, Pittsburgh, PA
15222

16

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

36 FMSHRC Page 459

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19TH STREET, SUITE 443
DENVER, CO 80202-2500
303-844-5267/FAX 303-844-5268

February 19, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,
v.
PAYSON CONCRETE & MATERIALS,
INCORPORATED,
Respondent.

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CIVIL PENALTY PROCEEDING
Docket No. WEST 2013-819-M
A.C. No. 02-00740-321073

Mine: Tonto Pit

DECISION
Appearances:

Robert D. Ankeney, Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado for Petitioner;
Tim Hughes, Safety Manager, Payson Concrete & Materials Inc. for
Respondent.

Before:

Judge Miller

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, Mine Safety and Health Administration (“MSHA”) against Payson Concrete &
Materials Incorporated at its Tonto Pit location, pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820. This docket involves fourteen
citations with penalties assessed pursuant to section 110(i) of the Mine Act which are in dispute.
The parties presented testimony and evidence at a hearing held on January 22, 2014 in Phoenix,
AZ.
The parties agree that Payson Concrete & Materials Inc. is an operator as defined by the
Act, and is subject to the jurisdiction and provisions of the Mine Safety and Health Act. These
citations were issued at the Tonto Pit near Mesa, AZ. Citations 8591193, 8591194, 8591195,
8591196, 8591197, 8591198, 8591199, 8591200, 8598401, 8598402, 8598403, 8598404,
8598405, and 8598406 are at issue. The Secretary contends the Respondent repeatedly violated
30 CFR §50.30(a); where the Respondent failed to correctly report the hours worked by Mr.
Randall on the quarterly employment reports. Respondent does not dispute that the regulation
was violated, but contends that only one citation that covers all quarters should have been issued.
MSHA issued a separate citation for each quarter in which hours were not reported and proposed
a penalty of $100.00 for each. The violations are not S&S and were cited as moderate
negligence. After a hearing on the matter, I issued a decision on the record, which follows with a
number of corrections to provide easier reading, while leaving the substance of the decision.

36 FMSHRC Page 460

FINDINGS OF FACT AND CONCLUSIONS OF LAW
Taken from transcript:
This case involves 14 citations that were issued by Inspector Horning in March of 2013.
The Secretary contends that the respondent repeatedly violated 30 CFR 50.30(a) on each of these
14 citations where the respondent failed to correctly report the hours worked by Mr. Randall on
the quarterly employment reports, form 7000-2. Respondent does not dispute that the regulation
was violated, but contends that only one citation or, fewer than 14 citations should have been
issued. The violation is not at issue. The standard requires that Mr. Randall’s hours, like all of
those working at the mine, be reported, and they were not.
The issue is the number of citations that were written by Horning. The Secretary issued a
citation, one for each quarter where the reporting was incorrect. MSHA contends, and the
operator agrees, that Mr. Randall, who is one of the owners of the company and does various
tasks at the mine, was omitted from the number of hours worked for 14 quarters, beginning with
the first quarter of 2009 through the second quarter of 2012. Inspector Horning, from the MSHA
field office in Mesa, Arizona, conducted a Part 50 audit of the mine in March of 2013 and found
the violations with regard to the 7000-2 forms. He explained the error to Ms. Short, the company
bookkeeper and she promptly corrected the error and continues to include Mr. Randall in the
form as to this date.
MSHA not only issued a separate citation for each quarter in which Mr. Randall's hours
were not reported, they also issued a proposed penalty of $100.00 for each. The violations are
not significant and substantial and originally were marked as a result of moderate negligence.
But at hearing prior to the evidence that was submitted by each party, the parties agreed and
stipulated that the negligence should be modified from moderate to low. I will modify the
negligence in each of the 14 citations from moderate negligence to low negligence. The violation
is not really at issue. There is a violation of 30 CFR 50.30 which requires that each -- this is 30 - 50.30(a), each operator of a mine in which an individual worked during any day of a calendar
quarter shall complete an MSHA form 7000-2 in accordance with the instruction and criteria in
section 50.30-1 and submit the original. And the standard goes on from there. The pertinent part
is that all employees, including Mr. Randall, should have been included on the form 7000-2, and
he was not. Therefore, I find that there is a violation of 30 CFR 50.30.
The primary issue raised by Respondent is whether or not there should be 14 citations or
there should be some fewer number of citations. The second issue is the amount of penalty to be
assessed to each of the citations. Mr. Hughes argues on behalf of Payson that the Secretary
should have issued fewer than the 14 citations because the mine made a mistake and because the
MSHA policy manual, in certain circumstances, directs inspectors to issue only one citation for a
series of violations or combine certain kinds of violations into one citation. That's usually when
the inspector finds, for example, a number of violations on one piece of equipment, and those
violations would be cited under the same standard. They can be placed into one citation instead
of issuing a separate citation for each. Respondent makes a good point and it is difficult to
understand why -- in some cases, why there have to be 14 citations. However, from a legal
standpoint, the standard specifically refers to quarterly reports when it says “each operator during

36 FMSHRC Page 461

any day of the calendar quarter” shall report hours worked. I'm not sure MSHA could issue a
citation for more than one quarter at a time because of the requirement in the standard itself. The
Inspector Citation Writing Manual tells the inspector to issue a citation for each quarter.
Mr. Hughes makes a good point about why it should be different for a paperwork
violation than for some safety violations, but that argument goes to the penalty, and that's
something that can be dealt with in the penalty portion of this case as opposed to trying to
combine more than one quarter into one citation. So I agree with MSHA that the 14 citations
were appropriately issued, that one quarter in each citation is the appropriate way to do it.
As the Secretary pointed out, that's consistent with earlier decisions by the Commission
ALJs, as well as one of my decisions in the Eureka Rock, 34 FMSHRC 476 (July, 2012) (ALJ)
where I found that an owner of a mine must be included on the 7000-2 form and that issuing
those citations for each quarter was appropriate in that case. I find it was appropriate in this case,
as well, that the violation is shown that the 14 citations were appropriate.
PENALTY
What I would like to address is the penalty with regard to each of those 14 citations. The
Secretary issued a $100.00 penalty for each of the 14 violations, which is the minimum penalty
under their Part 100 regulations for each of the citations in this case, making a total of $1,400.00.
I am not bound by the Secretary's Part 100 penalty criteria. I am bound by the law and by what
the Commission has said and what the statute says about penalties. Section 100(i) of the Mine
Act confers upon the Commission, the authority to assess all civil penalties provided under the
Act. It further directs that the Commission, in setting penalties, and the Commission judges, shall
consider the operator's history of previous violations, the appropriateness of such penalty to the
size of the business of the operator, whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of the violation and the demonstrated good
faith of the person charged in attempting to achieve rapid compliance with notification. The
Commission reiterated that position recently in the case of Mining & Property Specialists, 33
FMSHRC 2961, (December 2011). In that case, the ALJ issued a penalty of $1.00 for some
recordkeeping violations. It was a violation where the mine simply did not have the records in
the location where they were supposed to as opposed to another location. The judge issued a
lower penalty, and the Commission, on appeal, sent the case back to the judge simply to look at
the six criteria again. In reviewing the penalty amount, the Commission determined that under
the clear statutory language, the Commission alone is responsible for assessing the penalties and
neither the ALJ nor the Commission is bound by the Secretary's proposed penalties or by
MSHA's Part 100 regulations. However, while there's no presumption of validity given to the
Secretary's proposed assessments, the Commission has held that substantial deviations from the
Secretary's proposed assessments must be adequately explained using the section 110(i) criteria.
So while I don't need to make exhaustive findings, I have to provide some adequate explanation
as to the basis for the penalty that I assess.
In this case, Payton is a small operator. There was definitely good faith abatement. As
soon as Ms. Short learned about the problem, she immediately corrected it, and she continues to
correct it to this day. The operator has made no issue of its ability to pay the penalty as assessed.

36 FMSHRC Page 462

The history of assessed violations, which is Exhibit 20 in this case, shows that there is no history
of violations at this mine. I didn't see any history of violations, and specifically no history of
recordkeeping violations. So this would have been the first time that it was brought to the
attention of the mine. As to the gravity, again, it's difficult to tell why this should be a serious
violation. I think it's certainly not S and S. And leaving Mr. Randall off of the report, I didn't see
anything from MSHA that would lead me to believe that would result in some serious safety and
health or some serious problem for MSHA. I find the gravity in this case to be negligible. And,
finally, the parties agree that the negligence was low, and when the Secretary assessed the
$100.00 penalty, she assessed it for moderate negligence, and it has now been changed to low,
and I think rightly so. I think as the mine indicated, Ms. Short made a mistake. She had no idea
she was doing it wrong, and until it was brought to her attention, she didn't know that she was
doing it wrong and therefore the negligence is low.
Based on the six penalty criteria I've just explained and my reasoning for each of those
six penalty criteria, I assess a penalty of $25.00 for each of these 14 violations, and that means
that the total penalty for this docket, then, would be $350.00. So given my findings in this case,
there is a violation. I don't find the violations to be very serious. I find the negligence to be very
low. And based upon the six penalty criteria as I described, there's a total penalty of the docket of
$350.00. And I will put that in writing and send it to you, and then Payson will have 30 days
from the date of that decision to pay the $350.00.
(End of Transcript).
8591193, 8591194, 8591195, 8591196, 8591197, 8591198, 8591199, 8591200, 8598401,
8598402, 8598403, 8598404, 8598405, and 8598406 were each originally assessed a proposed
penalty of $100.00 for a total amount of $1,400.00. As noted above, the negligence is modified
in each citation to “low” and the penalty for each violation is modified to $25.00.
Given my above findings, I assess a total penalty of $350.00. Payson Concrete &
Materials, Inc. is hereby ORDERED to pay the Secretary of Labor the sum of $350.00 within 30
days of the date of this decision.

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

36 FMSHRC Page 463

Distribution:
Robert Ankeney, CLR, U.S. Department of Labor, MSHA, P.O. Box 25367, M/NM, Denver, CO
80225-0367
Tim Hughes, Payson Concrete and Materials, Inc., 1900 E. Highway 260, Payson, AZ 85541

36 FMSHRC Page 464

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

February 21, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
CONSOLIDATION COAL COMPANY,
Respondent

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CIVIL PENALTY PROCEEDING
Docket No. VA 2011-605
A.C. No. 44-04856-260893-01

Mine: Buchanan No. 1

AMENDED DECISION AND ORDER
Appearances:

Michelle Kim Vaughan, Esq., and Eric H. McMurray, Esq., U.S.
Department of Labor, Arlington, VA for Petitioner
Billy R, Shelton, Esq., Jones, Walters, Turner & Shelton PLLC,
Lexington, KY for Respondent

Before:

Judge Rae

This civil penalty docket comes before me on a petition for assessment of civil penalties
filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health
Administration (“MSHA”), against Consolidation Coal Company (“Consol”) pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and
820 (the “Mine Act” or the “Act”).
This docket contains a total of eleven 104(a) citations issued to Consol during inspections
conducted from September 15, 2010 through February 2, 2011. Citation Nos. 8177785 and
8182529 were settled by the parties prior to hearing in a decision issued by me on February 11,
2013. The nine remaining citations carry a total proposed penalty of $91,200.00. The parties
presented testimony and documentary evidence at a hearing in Abingdon, Virginia. Post-hearing
briefs were submitted by both parties.
After consideration of the evidence on record and post-hearing briefs submitted by the
parties, I find that the Secretary has proven a violation of MSHA standards as alleged in Citation
Nos. 81779589, 8178050, 8178068, 8178082, 8178092, 8185012, 8182533 and 8185034 as
amended herein. I find the Secretary has not established a violation in Citation No. 8178100 and
it is vacated.

36 FMSHRC Page 465

This decision is based upon the entire record and my observations of the demeanor of the
witnesses.1
Finding of Fact and Conclusions of Law
At the time these citations were issued, Consol was operating the Buchanan Mine No. 1
located in Buchanan County, Virginia. This mine is a large bituminous coal mine employing
9,000 persons. Mining is done by the long wall method. The mine is considered one of the
gassiest mines in the country, liberating in excess of ten million cubic feet of methane every
twenty-four hours and was on a five day spot inspection schedule2 at the time of this inspection.
Tr. 15. Approximately 1,377 inspection days were logged in 2009 equating to four inspectors
being on-site each day of the year, twenty-four hours per day. Tr. 17.
The parties stipulated that: Consol is an operator as defined by the Act, that Buchanan
Mine No. 1 is a mine and subject to the jurisdiction of the Act, that the Federal Mine Safety
Health and Review Commission and its judges have jurisdiction to adjudicate these matters, that
the citations issued to Consol were done by an authorized representative of Petitioner and that
the proposed penalties will not affect the Respondent’s ability to continue in business. Ex. Ct. A.
Citation No. 8177959
Citation No. 8177959 was issued by MSHA inspector Buddy Stanley3 at 11:30 a.m. on
September 15, 2010 alleging a violation of 30 C.F.R. §75.202(a) which states, “[t]he roof, face
and ribs of areas where persons work or travel shall be supported or otherwise controlled to
protect persons from hazards related to falls of the roof, face or rib and coal or rock bursts.” The
violation was described in the citation as follows:
The face and ribs are not being supported or otherwise controlled to
protect persons from the hazards related to falls of the face or ribs in the No. 3
face on the Active 15 right mining section. This face has been undercut one
ripper wide 36 inches deeper than the other side and 4 feet high from the mine
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 thereof of testimony given, and consistency or lack thereof
within the testimony of a witness and between witnesses.
2

Section 103(i) of the Mine Act provides that when a mine liberates in excess of one
million cubic feet of methane during a 24-hour period, the Secretary shall perform a minimum of
one spot inspection by his authorized representative during every five working days at irregular
intervals.
3

Inspector Stanley has been employed by MSHA since October 2008. He received his
Authorized Representative (“AR”) card in October 2009. His prior experience consists of 22
years as a miner in positions as a section foreman, shift foreman, fire boss and operator of
equipment. He attained certifications as a foreman, dust and gas detector and an accident
investigator. He was a member of the mine rescue team. Tr. 21-24.

36 FMSHRC Page 466

floor. The face has an overhanging brow with a visible crack. These two brows
were taken down with very little effort. When measured, the lumps of coal that
are on the mine floor are as follows: 2 feet wide by 30 inches long by 11 inches
thick, there are three pieces, 20 inches wide by 20 inches long by 6 inches thick.
The miner is in the No. 3 right crosscut. From the left rib of this face to the first
rib bolt in this break is 24 ½ feet with no support. Miners are required to work in
this area.4
Ex. S-8.
Stanley recorded on his citation that the operator had been cited 58 times in the previous
two years for violations of the same standard. He assessed the violation as reasonably likely to
result in lost workday or restricted duty injuries to one person and significant and substantial. He
marked the negligence as moderate. The Secretary’s proposed penalty is $4,800.00.
For the reasons set forth below, I affirm the citation as written but modify the negligence
to HIGH.
Stanley observed a three foot deep by four foot high cut had been made in the number
three face. When the miner backed out, it left a void with two overhanging brows where he saw
visible cracks and large pieces of coal and rock as a result. Tr. 27. The area was also improperly
rib bolted. Two bolts were two feet from the face and one was between four feet nine inches and
five feet nine inches from the face where the roof control plan required it to be within four feet of
the face. Tr. 28-29. While it would not have been a violation if the area had been restricted from
entry, there were two reflective ribbons hanging up to mark the face but they did not serve to
danger off the area. All the face areas have these markers, but when the operator intends to
danger off an area they hang multiple ribbons and stretch one across the entry rib to rib. Tr. 2930. The ribbons were six to eight feet from the face on the last or next to last row of roof bolts,
but there were no ribbons hanging from the brows themselves. Tr. 46. There was also no
notation in the shift book that the area had been hazardous or closed off although it had been
mined in this manner two days earlier and was not going to be mined again for several days. Tr.
57, 68-69, 71-72, 76.
This mine is known to have soft coal and is notorious for draw rock and loose ribs,
according to Stanley. The mine roof is seven and one half feet high. When it is undermined in
this manner, it is going to fall. Both brows and the ribs had visible cracks. Tr. 31. When a
foreman took a slate bar and applied barely any pressure, both brows fell in large pieces landing
up to five feet away. Tr. 32, 59-60. MSHA roof control specialists had been conducting
meetings with Consol management about the roof and rib conditions every two to three weeks
leading up to this inspection, one having taken place just the week before this citation was
issued. Tr. 37. Because the conditions were poor, the operator had been advised to take only
flush cuts and in the case of overhanging brows or cut out areas, additional supports such as
timbers should be installed. Tr. 57-58.
4

Grammatical errors in the descriptions from the “Conditions or Practice” sections of the
citations have been corrected.

36 FMSHRC Page 467

Because the area had not been dangered off, Stanley believed miners would continue to
work in and around this area, exposing them to grave danger. The area would be accessed by the
foreman, roof bolters, scoop operator and gas checker. Tr. 34.
With regard to whether the standard was violated, the operator asserts only that the
ribbons served as a warning not to travel beyond that point, the condition was not hazardous and
that Consol’s primary focus is on safety. Resp’s. Brief. Respondent’s witness, Terry Hamilton5,
testified that the ribbons were placed on the second row of bolts back from the face when the
bolting was completed. He confirmed that as the section foreman, he would still go into that area
to conduct a pre-shift or on-shift examination or make gas checks. In fact, he confirmed that he
would go past the reflectors to do this. Tr. 85. Consol’s assistant superintendent, Stephen
McBride6, testified that the ribbons are not the equivalent of dangering off the area and it does
not necessarily mean that a dangerous condition is present; it just means one must exert some
caution. Tr. 115-16.
I find the Respondent violated the standard.
Significant & Substantial
An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). A
violation is properly designated S&S, “if, based upon the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). As is well recognized, in order to establish the S&S nature of a violation,
the Secretary must prove: (1) the underlying violation; (2) a discrete safety hazard – that is, a
measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will
be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 3-4 (Jan. 1984); accord Buck
Creek Coal Co., Inc. 52 F. 3rd 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v. Sec’y of
Labor, 861 F. 2d 99,103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the source of most controversies
regarding S&S findings. The element is established only if the Secretary proves “a reasonable
likelihood the hazard contributed to will result in an event in which there is an injury.” U.S.
Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be
based on the particular facts surrounding the violation and must be made in the context of
continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (Aug. 1985); U.S.
Steel, 7 FMSHRC at 1130. The Commission has emphasized that it is the contribution of a
5

Terry Hamilton has been a miner for 31 years, 25 of which he has been a certified
foreman. He is also a certified electrician. He works as a section foreman for Consol. Tr. 7879.
6
Stephen McBride began his mining career in 1974 and has worked as a utility foreman,
section foreman, general mine foreman and currently as an assistant superintendent. Tr. 95.

36 FMSHRC Page 468

violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Co., 6 FMSHRC 1824, 1836 (Aug. 1984).
I have found the violation has been established. It contributed to a discrete safety hazard
being a rib or roof fall in an area where miners work. Should a fall occur, there is a reasonable
likelihood of a reasonably serious injury resulting. Roof and rib falls are known to be
responsible for many fatal injuries in the mining industry. The third element of Mathies requires
a reasonable likelihood of an injury causing event to which the violation contributed.
Stanley testified that the mine is notorious for soft coal, draw rock and loose ribs. Both
brows had visible cracks and draw rock which he felt would certainly fall. Tr. 31. In support of
his opinion was the fact that applying very little pressure to the brow with a slate bar caused the
entire brow to fall in one large piece and then break into pieces as set forth in the written citation,
landing on the travelway five feet away where miners work and travel. Tr. 32, 59-62. This fact
was confirmed by McBride. Tr. 98, 104. The consensus of testimony was that cracks and loose
ribs could develop rather quickly and without warning. This undercut had been made two days
prior to the inspection and there were no plans to return to the area again for several more days.
Tr. 57, 68-69, 71-72, 76. In the meantime, the foreman was required to travel to the area to make
pre-shift and on-shift examinations and take gas readings. Tr. 85. It was extremely likely,
therefore, that the roof or rib would fall with continued normal mining operations and that this
violation contributed substantially and significantly to that hazard.
The Respondent, while not denying the fact that the material fell with ease over the
travelway when lightly prodded with a slate bar, argues that the condition did not pose a hazard.
The roof bolters, they contend, would be stationed in the machine on the opposite side from the
overhang and not exposed to the danger. It argues that there was no reason for anyone to be in
the area. Resp’s. Brief. However, it presented no credible evidence that the area was supported,
or dangered off, or that bolting was imminent. Instead, it presented its own witnesses who
confirmed the section foreman would enter the area beyond the ribbons hanging from the second
set of roof bolts at least twice a day to perform his examinations and gas checks, thereby
exposing himself to this hazard. The Respondent’s position is rejected and I find this violation is
S&S.
Negligence
Stanley evaluated the negligence to be moderate. The operator has a history of roof
violations, having been cited 58 times in the preceding two years. Tr. 37, Ex. S-8. MSHA
specialists had been meeting with Consol personnel every two to three weeks to discuss the
hazardous conditions in this mine; the most recent meeting having taken place the week before
this inspection. Tr. 37. In fact, they had been told when making cuts that were not flush or
where there is an overhanging brow, additional support would be needed. Tr. 58. They had
special jacks designed for this purpose which Stanley saw piled up on the surface not being used.
Tr. 38. The area had not been dangered off nor had the area been noted in the shift book,
indicating to Stanley that the operator had no plans to address the situation. Tr. 68-69. The cut
had been made two days prior to the inspection and regardless of whether the cracks developed
immediately or sometime thereafter, the foreman had been across the face performing on-shift

36 FMSHRC Page 469

examinations and gas checks from the time the cut was made until this condition was cited.
However, this condition was neither mentioned to Stanley as he approached the area nor were
corrections underway. Id.
Respondent did not deny that meetings with MSHA specialists had been taking place
prior to and leading up to the date of this inspection as Stanley testified. It further confirmed
through McBride that it did have timbers available. Tr. 121. Respondent alleges, however, that
it was unaware of the cracks and draw rock until it was pointed out by Stanley. I do not find this
claim to be credible. Even if it were true, the operator was put on sufficient notice that
heightened awareness was necessary due to the history of roof violations and the rapidity with
which cracks could develop and create a hazard. It was aware that this brow was left
unsupported for an unreasonable period of time and there were no immediate plans to install
additional support or scale it. It made no effort to comply with MSHA’s warnings, use the
supports readily available or to patrol the area with sufficient frequency to discover the hazard.
Moderate negligence is defined as a situation where “(t)he operator knew or should have
known of the violative condition or practice, but there are mitigating circumstances.” High
negligence is defined as “(t)he 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) (Table VIII). In view
of the facts, I find there are no mitigating circumstances and that the negligence is more properly
assessed as HIGH.
Citation No. 8178050
Citation No. 8178050 was issued by inspector William Ratliff7 on October 12, 2010 at
9:30 p.m. for another alleged violation of 30 C.F.R. §75.202(a). The narrative portion of his
citation reads:
The right rib at break No. 71 on the 3 East Mains was not adequately
supported or otherwise controlled to protect miners from the hazards associated
with falling ribs and rock. There was a loose rib with visible cracks over and
throughout the rock at the top of the rib. The rock was pulled easily with a bar
and measured 12 to 20 inches thick, 25 inches high above the coal, and extended
for a distance of 20 feet. When the rock was pulled, several pieces fell on the
track. This is the main travelway to all the working sections and is traveled each
shift.

7

William Ratliff has been employed by MSHA since January 2007. He attained his
Authorized Representative status in February 2008. He was in the mining industry for 24 years
performing as a foreman, equipment operator, fire boss, explosives handler and roof bolter. He
was a certified foreman. Tr. 126-30.

36 FMSHRC Page 470

Ex. S-2.8
Ratliff assessed the violation as reasonably likely to produce a fatal injury to two persons,
S&S, affecting two persons and the result of moderate negligence. The proposed penalty is
$8,400.00.
For the reasons set forth below, I affirm the citation as written but modify the negligence
to HIGH.
The Respondent does not contest the violation. Resp’s Brief. The facts as the inspector
stated were that 3 East Mains is the main travelway. Miners enter and exit this mine by
mantrips, both covered and uncovered, that travel along the rails through this area. Tr. 132-33.
At break 71 he observed a loose rib with visible cracks measuring twenty feet long. Tr. 132.
When pulled with a bar, rock pieces fell onto the track which would endanger miners traveling in
a mantrip on that side of the travelway. Tr. 133. These facts adequately establish the violation.
S&S
Ratliff characterized the hazard as S&S because in his opinion, a rib roll or roof fall was
reasonably likely to occur, producing serious crushing injuries to miners traveling in this area.
The rock that fell when prodded measured up to 20 feet long and 12 to 20 inches thick. Should it
fall on a miner traveling in an open mantrip, it could cause a crushed skull, broken bones or other
serious injury. There are often as many as 50 mantrips in this area at any one time. The
exposure to injury is great. Tr. 133-34. The likelihood of such a fall is also great, taking into
consideration the soft coal and the amount of unstable draw rock throughout this area. The area
had already been bolted as confirmed by foreman Timonthy Laforce9 but the rock had sloughed
off creating a brow. Despite being bolted, cracks still developed and were pulled down with
ease. Tr. 200-01. Raymond Kinder10, also acknowledged that the separation between the rock
and the coal was readily visible. Tr. 194.
Respondent argues that the third prong of the Mathies test has not been met. It argues
that the rocks that fell were small, would not strike a passing miner traveling six to eight feet
from the rib and would not result in a serious injury. Resp’s. Brief. Respondent presented
8

Secretary’s Exhibit S-2, Citation No. 8178050 and William Ratliff’s corresponding
inspection notes, were omitted from the official transcript. A duplicate copy was obtained from
the Secretary with notice provided to the Respondent and has been appended to the record of
trial.
9

Timothy Laforce worked in the coal industry for some time in the late 1980s and then
returned in 2001. In 2004 he became a member of management with Consol and in 2007 became
a section foreman. He is currently a section coordinator. Tr. 196-97.
10

Raymond Kinder has been a miner for 33 years working as a shift foreman, section
foreman, utility foreman and a superintendent. He is currently the assistant general mine
foreman. Tr. 180-81.

36 FMSHRC Page 471

testimony from Laforce who stated that the rock that was pulled down broke up into smaller
chunks of “maybe 50 pounds, if that; you know, something easily a man could handle,” “nothing
no big man couldn’t handle.” Tr. 199, 201. The remaining rock that could not be pulled down
was bolted to “make it, you know, up to standards as far as our roof control and rib control.” Id.
I find Laforce’s attitude to be appalling. Apparently, he believes that any real man should be
able to withstand a 50 pound rock falling on his head without suffering a serious injury.
Therefore such a situation is not a hazard that requires remediation unless of course an inspector
is on the scene requiring them to bolt the area to “make it up to standards” to comply with the
roof control plan.
Robert Baugh11, Consol’s section foreman and safety inspector, testified that the rock
came down in pieces ranging from three feet wide to four feet long and three to eight inches
thick. Tr. 171. When pulled down, it bounced towards the track but would not hit a miner in a
mantrip because there was a curve in the track which caused the rock to fall away from the track.
Tr. 172-73. In his mind, the conditions were not hazardous and the rock did not need to be
pulled. Tr. 174. However, he went on to say that when a rock is pried off, it must be pried in an
upward motion so the person does not lean in towards the rock because the rock has a
“tendency” to fall down. Tr. 177. Again, it is alarming that a manager responsible for safety is
not concerned that a rock the length and width of a small desk and eight inches thick is a hazard
to a miner walking below it. Additionally, I give little weight to Baugh’s recollection that the
rocks did not fall on the tracks. Ratliff testified that it did and recorded it in his notes taken at the
scene and stated it with specificity in his written citation issued shortly thereafter. Tr. 133, Ex.
S-2.
Kinder testified that he also believes the rocks did not land on the track and the condition
was not hazardous. Tr. 182-86. However, when asked on cross-examination if he considered a
crack in an overhanging brow a hazard, he replied that it depended upon how the cracks are. He
went on to say that they bolt areas where there are cracks in the brow to secure them. When
pushed for an answer as to why they would install bolts where there was a crack in the brow, he
admitted that it was because it was considered a hazard. Tr. 190-91. I find Kinder’s testimony
was intentionally evasive and give his testimony little weight.
I find this violation is S&S.
Negligence
The inspector assessed the negligence as moderate, however, upon reconsideration; he
felt the negligence was high due to the highly visible nature of the condition, the number of
cracks in the rib and the fact that management had been put on heightened awareness of their
roof and rib control problems through the ongoing meetings with MSHA. Tr. 152. I agree with
Ratliff’s revised assessment of negligence for the same reasons and modify it to HIGH.

11

Robert Baugh has been employed by Consol for 36 years as a roof bolter, miner
operator, section foreman and safety inspector for the evening shift which is his current position.
Tr. 165-66.

36 FMSHRC Page 472

Citation No. 8178068
This citation was also issued by Ratliff for a violation of 30 C.F.R. §75.202(a). It was
issued on November 16, 2010 at 3:30 a.m. and states as follows:
The right rib on the 4 North No. 1 belt flight at break No. 24 was not adequately
supported or otherwise controlled to protect miners from the hazards associated
with a rib fall. On the right inby corner at break 24 there was a loose rib with
visible cracks over and throughout the rock at the top of the rib. When pulled
with a bar the loose rib measured 12 to 18 inches thick, 27 inches high over the
coal seam, and extended for a distance of 92 inches. When pulled a large piece of
rock (18 inches by 32 inches) and a second piece that measured 6 inches by 40
inches landed on the rail of the track. This is the main supply route for the entire
mine and is traveled by miners each shift. This exposes miners to falling rock that
would enter mantrips and supply trams.
Ex. S-3.
This alleged violation was assessed as reasonably likely to result in a fatal injury
affecting two persons, S&S and the result of moderate negligence. The proposed penalty is
$8,400.00.
For the reasons set forth herein, I affirm the citation but modify the negligence to HIGH.
Ratliff observed a loose rib with visible cracks throughout the rock and the top of the rib.
The area was not supported in any manner. With just one pull on a pry bar, the rock easily came
down in two pieces which he measured and recorded in his notes as set forth in the citation
above. Tr. 208, 219. The slabs landed on the rail of the track of this supply route. This
travelway is heavily traveled by the supply crew in mantrips and locomotives as well as on foot.
Tr. 209. Ratliff could see rock dust behind the loose rock that had been blown in behind the
cracks which indicated to him that the condition had been present for more than one day. Id.
Respondent contests this violation, stating that the rock was not likely to come down on
its own. In support of this it states that Ratliff acknowledged that the coal rib and rock were
flush with one another, citing page 214 of the record of trial. It also cites to page 215 of the
record in support of the alleged fact that the coal rib was intact. Resp’s Brief. These statements
are inaccurate. Counsel for Respondent asked the inspector to confirm that “[t]he rock and the
coal are flush one with another….” The inspector responded, “[n]ot to my knowledge…It’s not
a flush rib.” Tr. 215. Ratliff went on to say that the rock had broken loose from the rib and fell
out away from the rib. Tr. 215. Respondent’s one witness, Richard Perkins12 acknowledged that
there were visible cracks in the rib. Tr. 234. It was his opinion, however, that the rock would
not have fallen in the near future and that it took a considerable amount of force and pounding on
12

Richard Perkins has been with Consol for nine years. He was certified as a foreman in
2001. He has been a miner for 26 years and currently holds the title of safety inspector for
Consol. Tr. 231-32.

36 FMSHRC Page 473

the rock with the pry bar to make it fall down. Tr. 234-37. I find these statements to be
unsupported. Ratliff made notes simultaneously with the inspection in which he recorded that
the rock was easily knocked down and landed on the track in large pieces, which he measured.
Ex. S-3. I find Ratliff’s testimony more credible and reliable as a result. The violation has been
established.
S&S
For essentially the same reasons the prior violations were assessed as S&S, this one is
S&S as well. The mine is known to have soft coal and a large amount of draw rock that
deteriorates without warning in a short period of time resulting roof and rib falls. Under
continued normal mining conditions, it was reasonably likely that the rock would have fallen on
its own, being unsupported and in very poor condition. It is also reasonably likely, having fallen
on the track were miners travel, that such a fall would be reasonably likely to result in reasonably
serious injuries. This violation was appropriately assessed as S&S.
Negligence
Ratliff pointed out that this area was traveled frequently. In fact, there was a date, time
and initial board within in ten feet of the cited condition that confirms this area was examined
regularly and management personnel traveled the route on a daily basis. Tr. 211. In his opinion,
the conditions in the mine are subject to rapid deterioration. This standard had been cited 52
times during the preceding two year period and meetings were held every two weeks to discuss
these issues. Tr. 212-13. For these reasons, he assessed the negligence as moderate. However,
he did not cite to any mitigating factors and I do not find any. I find the negligence is properly
assessed as HIGH.
Citation No. 8178082
This citation issued by Ratliff is dated December 1, 2010 at 8:24 a.m. It is also an
alleged violation of 30 C.F.R. §75.202(a) with similar conditions to those found at the other
locations. This one relates to break No. 3 inby SS# 10763 where a loose rib had visible cracks
extending beyond the rib with rock dust present behind the loose section of the rib. It was also
easily pulled down and fell in sections measuring from seven to twelve inches thick, four feet
high with one section being six feet long another two sections being four feet long. It was
assessed as reasonably likely to result in permanently disabling injury to one person, S&S and
the result of moderate negligence. The proposed penalty is $4,800.00. Ex. S-4.
For the reasons set forth herein, I affirm the citation but modify the negligence to HIGH.
This area is also part of the supply route with a shop area nearby. It is located three
breaks from the bottom of the mine. It is traveled often and there were footprints located within
12 inches of the cited rib. Tr. 250-53. The conditions stated in the narrative of the citation were

36 FMSHRC Page 474

established through Ratliff’s testimony and hearing notes. Tr. 250-55, Ex. S-5.13 Consol does
not contest this violation. I find it has been established.
S&S
Consol argues that there is insufficient evidence that persons would be within the zone of
hazard should a fall occur as miners walk towards the middle of the entry rather than beside the
rib. Lambright also testified that there is little foot traffic in the area. Tr. 259, 266. For the same
reasons the preceding Section 75.202(a) violations were assessed as S&S, Ratliff assessed this
one similarly. The rock did not strike the rail when pulled down in this location, however,
miners travel by mantrip and on foot within 12 inches of the rib in this area. This was confirmed
by his observation of footprints located in the area and the presence of a shop area located
nearby. Tr. 254, Ex. S-4, S-5. The rock fell in sizeable pieces up to six feet in length exposing
miners in the area to serious injuries such as broken bones in the event of a rock fall. Tr. 254-55.
The fact that miners may tend to walk more towards the center of the travelway rather than up
against the rib does not lessen the likelihood of being injured by a rib roll of the size documented
here. The fact that Ratliff could not say when the footprint was made does not disprove the fact
that this area was traveled on foot. I find the S&S designation to be supported by the evidence.
Negligence
The citation was marked as moderate negligence; however, the inspector added that there
had not been a pre-shift examination done of this area, for which he issued a citation not
contested herein. There was not a date, time and initials board present anywhere to indicate the
pre-shift had been done. The condition was obvious, it was located near the outby foreman’s
shop area and this violation has been cited dozens of time previously. For these reasons, the
inspector felt the negligence should be high rather than moderate. For these reasons Ratliff cited
and because of the ongoing meeting between MSHA and Consol management regarding roof and
rib control problems, I agree and modify the negligence in this citation to HIGH.
Citation No. 8178092
This citation was issued by Inspector Ratliff on December 13, 2010 at 5:25 p.m. for an
alleged violation of 30 C.F.R. §75.220(a)(1) which provides, “[e]ach mine operator shall develop
and follow a roof control plan, approved by the District Manager, that is suitable to the
prevailing geological conditions, and the mining system to be used at the mine. Additional
measures shall be taken to protect persons if unusual hazards are encountered.” It alleges that:
The approved Roof Control Plan was not being complied with on the 3
East Mains No. 4 belt flight and track. There were 4 timbers that are required by
the plan along the No. 4 belt flight that had been dislodged by equipment that was
13

The inspector’s notes for Citation No. 8178082 were made part of Exhibit S-5 which
contains Citation No. 8178092. The document appended to Citation No.8178082 at Exhibit S-4
is the approved ventilation plan which applies to Citation No. 8185012 found at Exhibit S-1 and
Citation No. 8185043 found at Exhibit S-7.

36 FMSHRC Page 475

hanging from the power cables and life line at break No. 145 to break No. 146.
These 4 timbers were hanging over the 3 East No. 4 conveyor belt. This is the
main travel way onto the
working sections and is traveled by miners on each
shift to and from the sections. There was 2 to 6 inches of draw rock in this area.
This condition exposes miners to the hazards associated with loose draw rock
falling when the timbers were dislodged and with the hazard of the timbers
coming in contact with the moving conveyor belt and being propelled into the
travelway.
Ex. S-5.
The condition was cited as reasonably likely to result in permanently disabling injuries to
one person, S&S and the result of moderate negligence. The proposed penalty is $5,200.00.
For the reasons set forth below, I affirm the violation, find moderate negligence but do
not find the violation was S&S.
The belt entry had been mined to a width of 24 feet. The top consisted of two to six
inches of draw rock. Due to these two factors, the roof control plan required timbers be installed
every five feet to take some of the weight off the bolts and support the top. Ex. S-12 pg. 28.
Ratliff found that four of these timbers adjacent to the track spanning twenty feet had been
dislodged from the top and were leaning over the belt to within 10 inches of it. Tr. 551-55.
According to Ratliff’s notes taken at the scene, one timber had a single “J” hook on it holding it
upright while the other three timbers were being held up by cables hanging from it. The timbers
were four feet from the rail. Mantrips traveling nearby would be within 17 inches of the rail.
Ex. S-5 pgs. 6-7. This created a hazard because a miner shoveling the belt as well as miners
traveling in mantrips would be exposed to a roof fall. Tr. 555. The Respondent does not contest
the violation. I find it has been established.
S&S
In the inspector’s opinion, the draw rock would fall with continued normal mining
operations. He did not, however, find the rock was in any immediate danger of falling and did
not require it to be scaled. Tr. 560-61. The timbers had been knocked out of alignment on the
previous shift when a piece of machinery was trammed through the track. Tr. 559. To abate the
citation, the timbers were simply put back upright and wedged against the roof. Tr. 560. Had
they fallen, Ratliff believed there was a likelihood that they would have fallen on the moving belt
which could have catapulted them into the travelway. Tr. 566. In order for that to happen, the
timber would have to fall on the belt, the cable would have to break and the timber would have to
fall on a section of the belt where there was no metal structure below it preventing it from
coming in contact with the moving belt itself. Tr. 568. There was no evidence that the
remaining timbers inby and outby these four at issue were taking on additional weight. Tr. 590.
There was also no evidence that the roof bolts were failing in any way, both indicating that the
roof was in good condition in this area. I find that a roof fall in this entry with relatively stable
roof conditions that was otherwise adequately supported by the bolts and other timbers was not
reasonably likely. I also find the possibility of the timbers falling on the belt and being ejected

36 FMSHRC Page 476

into the travelway by the moving conveyor too speculative to be considered reasonably likely. I
do not find this violation to be S&S.
Negligence
The moderate negligence for this citation was based upon the fact that the foremen travel
this area and the condition was obvious. Tr. 556. Roof control plan violations had been cited 42
times in the preceding two years. Tr. 558. I find that management was aware that equipment
had recently trammed through the area that was too wide to fit through the travelway and
dislodged the timbers. The foreman should have had it corrected immediately thereafter. I find,
however, that the condition had existed for a relatively short period of time and would likely
have been corrected on the on-coming shift in mitigation. I find that moderate negligence is
appropriate.
Citation No. 8178100
This citation written by Inspector Ratliff was issued on January 3, 2011 at 9:45 a.m.
under 30 C.F.R. §75.360(a)(1).14 The narrative section states:
The preshift examination conducted on the 16 Right Panel 011 MMU was
not adequate to protect miners from the hazards associated with inadequate
ventilation controls and a build-up of methane. In the No. 3 entry starting at
break No. 74 and extending inby for a distance of approximately 90 feet there was
inadequate ventilation and from 1.3 to 2.5 percent methane was found in this area.
If the preshift examiner had examined the ventilation controls on 011 MMU he
should have found this condition. This exposes all miners on the 011 MMU to the
hazards associated with a methane buildup and ignition.
Ex. S-6.
The hazard was assessed as reasonably likely to result in a fatal injury to 15 miners, S&S
and the result of moderate negligence. This standard was cited 13 times in the preceding two
years. The proposed penalty is $30,200.00.
For the reasons set forth below, I VACATE this citation.
Inspector Ratliff was accompanied by Reggie Lambright15 on his inspection of the #3
entry 16 right panel which is a 90 foot long entry with a brattice at one end. Ratliff noticed there

14

30 C.F.R. §75.360(a)(1) states, in relevant part,“[e]xcept as provided in paragraph
(a)(2) of this section, a certified person designated by the operator must make a preshift
examination within 3 hours preceding the beginning of any 8-hour interval during which any
person is scheduled to work or travel underground. No person other than certified examiners may
enter or remain in any underground area unless a preshift examination has been completed for
the established 8-hour interval.”

36 FMSHRC Page 477

were blocks missing from the brattice and there was no air movement. The methane level in the
area was 1.3% at the mouth and 2.5% at the back of the entry. Tr. 277. The level of methane
was of concern because at 1.5%, the power needed to be shut off and at 2.5%, the main circuit
breaker must be de-energized. Tr. 279. The pre-shift examination on this area had been made
three hours prior to the start of the shift, at approximately 4:30 a.m. Ratliff and Tim Greene16
acknowledged that the pre-shift examination report noted methane at .4% with no hazardous
conditions present. Tr. 280, 354. It was Ratliff’s opinion that the missing blocks in the brattice
created this situation where methane could build up quickly and pose an ignition hazard to
miners working in the area. This should have been obvious to the foreman conducting the preshift examination and the fact that no hazards were noted during that examination led Ratliff to
believe it was an inadequate examination. Tr. 286. Ratliff admitted that there was no activity in
this area but denied any recollection of Lambright telling him that no one was scheduled to work
in the area. Tr. 285. Lambright testified to this fact and that no one was working within 360 feet
of this area. Tr. 312. Greene testified that it had been weeks since any work had been done in
the area, contrary to Ratliff’s belief that the area had been active the day before. Tr. 370, 286.
Greene further stated that it was no surprise that the methane level rose from .4% the day before
the inspection to 2.5% when Ratliff tested it. Tr. 367-68. Methane could have come out of the
coal since the time the pre-shift was done. Tr. 358. Until the methane reached 1%, they are not
required to take any corrective action. Tr.364. Lambright testified that the methane level can
rise very quickly and can be caused by a barometric pressure change. Tr. 316. It is undisputed
that there were no ignition sources in the area and it had been rock dusted. Tr. 288, 290-92, 30506, 355, 358.
There is insufficient evidence from which to conclude that an inadequate pre-shift
examination had been done several hours before this citation was issued. A pre-shift
examination had been conducted as confirmed by Ratliff and Greene. The only point of
contention was whether the methane level was .4% as recorded in the examination book. Had
the methane levels not been elevated, the inspector confirmed he would not have issued this
citation. Tr. 287. In a mine that liberates 10 to 12 million cubic feet of methane every 24 hours,
it is quite conceivable that the levels at the face rose from .4% to 2.5% between the time the preshift was done and Ratliff toured the area. I also find credible the testimony that this area was
not one in which persons were working or traveling as required by the standard. The Secretary
has not proven this violation and I hereby VACATE the citation.
Citation No. 8185012
On January 19, 2011 at 2:20 a.m., Inspector Ratliff issued this citation for an alleged
violation of 30 C.F.R. §75.370(a)(1) which provides, “[t]he operator shall develop and follow a
ventilation plan approved by the district manager. The plan shall be designed to control methane
15

Reginald Lambright started mining in 1972 as a general laborer for Consol. He has
been involved in mine rescue for 25 years and has been a section foreman for ten years. He
currently works in the safety department. Tr. 261-62.
16

Timothy Greene has 27 years of experience as a miner and has been a foreman since
1992. He is a section foreman. Tr. 348-49.

36 FMSHRC Page 478

and respirable dust and shall be suitable to the conditions and mining system at the mine.” The
condition cited states:
The approved Ventilation Plan was not being complied with on the 17
Right Panel 014 MMU. In the No. 3 entry inby SS#27740 there was 2856 cfm
behind the line curtain in the idle place. The Ventilation Plan requires 6000 cfm
behind the line curtain in all idle places when the development panel exceeds
5000 ft. This panel has been developed over 6,300 feet. There was 0.4 percent
methane present in the 3 right crosscut at the end of the line curtain. This
condition exposes miners to the hazards associated with a buildup of methane and
ignition. Three miners were present doing repair work on a roof bolter in the No.
3 entry at this time.
Ex. S-1.
This violation was assessed as being reasonably likely to result in permanently disabling
injuries to three miners, S&S and the result of moderate negligence. The same standard had been
cited 90 times in the preceding two years. The proposed penalty is $9,800.00.
I affirm this violation as written for the reasons set forth below.
In July 2010, the mine adopted a supplemental ventilation plan that required a minimum
of 6,000 cubic feet per minute (“cfm”) of air in idle places when panels were driven in excess of
5,000 feet. Tr. 321, Ex S- 5. The cited gate entry had been mined to 6,300 feet and had only
2856 cfm of air when Ratliff took a measurement behind the line curtain located four feet from
the right rib. Tr. 322, 338.
The Respondent argues that the reason the violation existed was because a piece of
equipment had very recently moved through the area knocking down the fly curtain. Because the
inspector did not give the operator the opportunity to correct the violation before taking the air
reading, the citation should be vacated. Resp’s Brief. I reject this argument for two reasons.
First, there is no credible evidence establishing the sequence of events as the Respondent
portrays them, and second, such a requirement to correct a violation before a citation can be
issued would undermine the purpose of the Mine Act.
Assistant Foreman James Mullins17 testified that although he was not with the inspector
when the citation was issued, he signed a comment sheet recording the operator’s position with
respect to this alleged violation. Tr. 379-79, Ex. R-16. He recalled “very vaguely” a piece of
equipment came through this area but he “couldn’t recall” if it was a shuttle car, a miner or a roof
bolter but he was “thinking” that the operator bumped a timber which pulled the curtain down.
Tr. 382. He also could “remember vaguely” that he asked Ratliff or “that it was mentioned” if
“they could reset the timber.” Tr. 384. He could not recall what the air reading was that Ratliff
17

James Mullins has been with Consol for 23 years. Prior to that, he worked for ten years
at another mine. He holds certifications as an electrical repairman, maintenance foreman,
qualified gas foreman and is currently the assistant shift foreman on the owl shift. Tr. 374-75.

36 FMSHRC Page 479

had obtained behind the curtain as it was two years ago. Tr. 385. He never stated when the
equipment operator supposedly came through and bumped the timber but he did state that he had
not seen it happen. The equipment operator, he said, “told the people – when he backed out, he
told us that he believed he knocked that timber out” about a minute or two before Ratliff took his
air reading. Tr. 388-89. It was then that Mullins asked Ratliff if he could fix the curtain. Tr.
388. Although Mullins stated that he did not see the equipment strike the timber, he stated that
Ratliff and Richard Perkins were already in the intersection and Ratliff was aware of it. Tr. 389.
According to Mullins, Ratliff instructed him and Perkins not to touch anything when he asked if
he could correct the curtain or at least he “do[es] vaguely remember don’t touch anything.” Tr.
392. Thereafter, Mullins testified that Perkins and Ratliff had already talked about the timber
situation prior to Mullins’ arrival on the scene and Mullins did not have the time to speak with
Ratliff to inform him that the timber had just been knocked down, contrary to his earlier
testimony. Tr. 394. When Mullins confronted Perkins and Ratliff, the equipment had already
been backed through the intersection and had been parked in the #3 entry and that “best that [he]
can recall, he walked by the equipment and it had been parked. Tr. 395.
Perkins testified that he wrote the comments regarding this violation contained in Ex. R16. Tr. 400. His version of the events is that immediately after a piece of equipment came
through and knocked a timber, Ratliff wanted to take the air reading. Tr. 402. He and Ratliff
actually saw the car come through and hit the timber and, contrary to Mullins’ first version of
events, Perkins was the one who asked Ratliff if he could fix the curtain. Tr. 403. Despite
having accompanied Ratliff to take the air reading, Perkins could not recall where the reading
was taken. Tr. 407. The Respondent tried to establish through this witness that Ratliff had an
agenda as the reason for not allowing the curtain to be realigned. Counsel asked “have you ever
had any conversations with Mr. Ratliff where he indicated anything about, you know, issuing
citations to Buchanan or, you know, we can afford to pay citations? Has he made comments
about that?” Despite having been so blatantly led by counsel, the best Perkins could say was, “to
be honest with you, the best I can recall, you know, he has spoke (sic) about, you know, the
money the company has made. But he also said that if – to be honest, I can’t remember exactly.
He would talk about this here is – he would tell me, he said, it don’t matter to me whether this
citation is written or not, but he said I’m just holding up the law. That’s what he told me. That’s
basically what he’d tell me.”
I find that the numerous inconsistencies in each of the Respondent’s statements
individually as well as the contradictions between them make them unreliable. I further find that
despite the insistence that both individuals supposedly asked Ratliff to repair a curtain that had
just been knocked down in their presence, none of this information appears in the comments
Perkins made on the day this citation was issued. Ex. R-16. Ratliff also denies this version of
events and it does not appear in his notes. There is no credible evidence to establish the
operator’s contention that the violation had just occurred in the inspector’s presence or that
anyone from the operator had asked Ratliff to reset it.
Assuming arguendo that the evidence established that Ratliff saw the curtain being
knocked down, and that Perkins and Mullins made such a request to Ratliff, there is no basis for
finding Ratliff’s actions improper. Respondent offers no legal basis for its position and I find
none. The Act requires that unannounced inspections of the mines be made and citations issued

36 FMSHRC Page 480

for violations of mandatory standards as they are found. 30 U.S.C.§ 813(a). The Act imposes
strict liability for violations found regardless of their cause, in an effort to enforce compliance
with safety and health regulations. Sec’y of Labor v. Nat’l Cement of Cal, Inc., 573 F. 3d 788,
795 (D.C. Cir. 2009) (stating that strict liability means liability without fault; it does not mean
liability for things that occur outside one’s control or supervision). Affording the operator the
opportunity to correct violative conditions before the inspector issues a citation would undermine
the purpose of the Act. The length of time a violation has existed is more properly a factor taken
into consideration in the assessment of the gravity of the violation. I find the violation has been
established here.
S&S
It is undisputed that there was a roof bolter in the last open crosscut from the face that
was being repaired by three miners at the time this citation was issued. Tr. 326. These miners
would have been exposed to a methane buildup due to the lack of ventilation in Ratliff’s opinion.
Id. He was also concerned that the methane level could be at a dangerous level by the time it
blew back to where the electricians were working and when the methane monitors would
activate. If the bolter was activated at that time, the methane would likely ignite. Tr. 336-37. It
is also undisputed that this mine liberates approximately 10 to 12 million cfm of methane every
twenty-four hours, much of which is liberated at the faces, making it a gassy mine. Tr. 328. The
methane level, as confirmed by the Respondent, can spike quickly at any given moment without
warning. Tr. 316. The pre-shift examination done on this section prior to the start of the on-duty
shift reported a .4% methane level. Tr. 329. The amount of air present would not be sufficient to
off-gas the methane in the event of a spike presenting a significant hazard in the event of an
ignition. Tr. 328. The condition was obvious in the inspector’s opinion. It was his belief that
this confluence of factors made it reasonably likely that an ignition would occur under continued
normal mining operations and that serious injuries such as burns and smoke inhalation would be
suffered by the three miners in the area making this violation S&S. Tr. 325, 328.
The Respondent refutes the third element of the Mathies criteria being met; the presence
of an ignition source. It argues that the roof bolter, equipped with two methane spotters, was deenergized and locked and tagged out. Resp’s Brief. This statement is not entirely supported by
the record, however. Ratliff and Perkins both testified that the roof bolter was de-energized.
Neither said it was locked or tagged out. Tr. 331, 379, 401. Only Mullins, who was not present
when Ratliff and Perkins entered this area, said it normally would have been locked and tagged
out which is not dispositive of it being locked and tagged out in this instance, particularly in light
of his very poor memory of the events as set forth above. Tr. 381. Respondent also ignores the
fact that the bolter could have been re-energized at any moment in order to test the success of the
repair work being done, providing an ignition source for methane. Respondent also notes that
the miners also were equipped with methane monitors. Tr. 331. However, as Ratliff credibly
testified, he has noticed that at this mine the methane alarms on the spotters are often turned off.
Tr. 331.
I find an ignition, fire or combustion was reasonably likely taking into consideration the
factors present here. The methane level was .4% hours early when measured during the pre-shift
examination. By the Respondent’s witnesses’ testimony, these two foremen were aware that a

36 FMSHRC Page 481

piece of equipment had knocked out the ventilation curtain. That piece of equipment was
already parked and left in a crosscut by the time Ratliff and Perkins arrived and yet the curtain
had not been repaired although it was an obvious condition. There is no reason to believe that it
would have been in the immediate future had the inspector not intervened. Methane levels can
and do rise and spike without warning in this gassy mine, especially in areas near the face. The
methane could reach significant levels before blowing back to the first open crosscut where
miners were working on the roof bolter. The roof bolter was sufficiently close to the face to
serve as an ignition source particularly as it was being repaired by electricians who would likely
re-energize it at any moment to test the repairs. The presence of methane monitors does not
diminish the likelihood of such an event occurring. The amount of air being directed by the
curtain in violation of the ventilation control plan was insufficient to reduce the level of methane
present. This violation was properly designated as S&S.
Negligence
Moderate negligence was assessed because Ratliff believed the condition had existed for
less than one shift based upon the .4% methane reading obtained on the previous pre-shift
examination with no hazardous conditions noted. Tr. 329. However, the operator was on
heightened notice of the need for better ventilation control based upon the 90 previous violations
in two years as well as the change in the ventilation plan being implemented in June 2010
requiring increased air to idle places. I find the relatively short duration of the violation and the
rapid abatement (twenty-four minutes) sufficient mitigation to justify a finding of moderate
negligence.
Citation No. 8182533
This citation was issued by Mark Hlywa18 on November 16, 2010 at 9:10 a.m. for an
alleged violation of 30 C.F.R. §75.1725(a) which requires 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.” He cited this
condition for the following condition:
The “Old Bunker” coal storage system currently in use is not being
maintained in safe operating condition. The northwest pull cord emergency stop
switch located along the bunker car track does not work properly. There is too
much slack in the pull cord cable and when the 48” high pull cord was lowered to
the ground, it would not de-energize the system. At another point along this same
pull cord, the cord was so loose that it was lying on the mine floor, providing no
protection. There are currently 3 contract employees working directly next to the
18

Inspector Hlywa has been employed by MSHA since June 2008 and received his AR
card in November 2009. He attained his Bachelor of Science degree from Virginia Tech in 2002
in mine engineering. In addition to working part-time as a miner in 2001 and 2002 at the Consol
Buchanan mine, he became a full-time employee of Consol in 2003 until 2005 as an industrial
engineer and foreman. He then worked as a design engineer for a mining equipment
manufacturer in 2007 and 2008. Tr. 435.

36 FMSHRC Page 482

train car bunker system. It is reasonably likely that a miner would fall into the
area between the coal cars and be crushed by the automated moving cars,
resulting in fatal injuries. This mine had a fatality at this bunker under similar
circumstances in 2001. The operator removed this bunker system from service.
Ex. S-10.
Hlywa marked the citation as S&S and the result of moderate negligence affecting one
person. The proposed penalty is $7,100.00.
I affirm the violation but modify it to non-S&S with low negligence.
The bunker system is an underground railway consisting of twenty-one 55-ton cars
weighing up to 1,000 tons when fully loaded that automatically move back and forth along the
track accepting and dispensing coal. There are four emergency stop cords, two on the north side
of the track and two on the south side, that are mounted at waist-height on posts positioned every
ten feet spanning the entire length of the track. The cords are approximately one to two feet
away from the cars. Tr. 439-41. This electrical cord is attached to a spring loaded switch which
remains closed until the cord is pulled thereby shutting off the power to the train. There are two
switches on each side of the bunker with 300 feet of cord running from each one. Tr. 486. The
only way to manually stop the train in the event of an emergency is to pull the cord and break the
connection at the switch. Tr. 443. The train would be deactivated if a miner walked, fell or
pushed on, or backed into the cord. Tr. 443. When Hlywa approached the north side of the
track, he saw a section of the cord laying the ground. Because the cord cannot function when on
the ground, he testified that he issued the citation at that point. Tr. 459-60. Thereafter he walked
down the track and pushed the cord all the way to the ground with his foot in a second location
and it still did not de-energize the system. Tr. 440; diagram Ex. S-24. He issued the citation
under the cited mandatory standard because the cord is part of the mobile equipment, although
the cord itself is electrical and is examined weekly as part of the electrical equipment inspection.
Tr. 452.
Respondent contests the violation on the basis that the emergency stop cord is electrical
cord, not a mobile or stationary piece of equipment, and therefore this mandatory standard does
not apply. Because the cord is to be examined weekly, and Hlywa inspected this cord before the
next regular weekly examination was due, there is no violation. Resp’s Brief. No authority is
cited for this most interesting argument by the Respondent. The cord is both a piece of
equipment and an integral component of the mobile bunker system covered by the mandatory
standard. The Secretary’s interpretation of this mandatory standard is consistent with the
purposes of the Act and not “plainly erroneous” and is therefore controlling. Aver v. Robbins,
519 U.S. 542, 561 (1997); Western Fuels-Utah Inc., 900 F.2d 318 (D.C. Cir. 190). In addition to
finding that this cord fits within the definition of mobile or stationary equipment under this
mandatory standard, I also reject the Respondent’s position because it is the same argument
raised in the previous violations except that it is stretched even thinner in this instance. That a
violation cannot be cited before the operator has had an opportunity to perform the weekly
electrical examination is rejected for the same reasons I rejected the argument above that the
operator should be given an opportunity to correct a violation before a citation is issued. It

36 FMSHRC Page 483

would frustrate the very purpose of the Act, expose miners to the dangers contemplated by the
cited standard and ignores the strict liability foundation of the Act. In this instance, it would
have subjected the miners to the dangers posed by the non-functional emergency stop cord for
several more days which is absolutely preposterous. Judge Manning in his SOL v. Solar Sources
Inc. (Dec. 13, 2013) (LAKE 2011-942, LAKE 2011-1038, LAKE 2012-0231, LAKE 20120295) decision similarly rejected the operator’s argument that it should be allowed to perform its
pre-operational examinations of equipment before a citation can be issued.19
The Respondent also contends that the cord was working properly. It presented evidence
through Rockford Lambert20 that Hlywa kicked the cord off its stand which is why it did not
function. When Lambert pulled it, it worked perfectly well. Tr. 487-88. He stated that the cord
was not on the ground as Hlywa claimed. Tr. 494. While Hlywa’s notes taken
contemporaneously with the inspection do not mention the cord being on the ground, they do
state that “when the 48” high pull cord was lowered all the way to the ground, it would not deenergize the system.” Ex. S-10. He also confirmed that he lowered the cord with his foot which
is more credible than having “kicked” it from waist-height down to the ground as alleged by the
operator. Hlywa also confirmed that the cord did function properly in all other locations except
this one. This evidence would explain how Lambert could have found an area in which the cord
did function properly, as he testified. Tr. 439. Lambert confirmed that to abate the violation,
slack had to be taken out of the cord. Tr. 493. This supports the Respondent’s position that the
cable was not sufficiently slack to reach the floor but it also indicates that it was too loose to deenergize the system properly as Hlywa stated. I find that Hlywa’s testimony coupled with his
notes credibly establish that when he tested the cord, it did not trip the system to stop the bunker
cars. The violation has been established.
S&S
The reason this citation was assessed as S&S was because miners regularly work along
the walkway beside the tracks performing maintenance, rock dusting and cleaning. There were
three miners working on the opposite side of the track cleaning an accumulation of mud, water
and coal off the walkway when this citation was issued. Tr. 444 464. If one of them stumbled,
they would be able to reach the pull cord and de-energize the bunker. However, if they moved to
the other side where the cord was not functional, in the event one of the miners stumbled or lost
his balance and fell onto track, it is reasonably likely that a fatal crush-type injury would occur
from being struck by the railcar. Tr. 462, 443-44. A fatal accident occurred on June 20, 200221
when a miner was crushed when entrapped between a bunker car and a beam at this same mine
19

In its recent order dated January 17, 2014, the Commission has denied discretionary
review sought by the Respondent on this decision.
20

Rockford Lambert has been a miner for 34 years. He has worked numerous tasks
including laying track and working as a certified foreman. He has been certified as a foreman for
29 years. Tr. 478-79.
21

The inspector’s written citation references a fatal accident that occurred in 2001,
however, he corrected this error during his testimony and Ex. S-21 evidences that it occurred in
2002.

36 FMSHRC Page 484

operating the same bunker system. The cause of the accident was due to the miner applying
lubrication to the bearings of the bunker system while it was energized. Ex. S-21. Hlywa’s
concern here was not that miners were lubricating the bearings while the system was activated
but that a miner could stumble or lose his balance and fall onto the tracks without the cord
deactivating the bunker. Tr. 443-44. At the center of the bunker are overhead belts that allow
pieces of coal and rock to fall, creating a significant pile of coal that three miners were cleaning
up. Tr. 475. Because the inspector had only been to this bunker once before, he could not say
how frequently spillage would occur. Tr. 476.
The Respondent maintains that there are no tripping or stumbling hazards that would
cause a miner to fall onto the track. The walkway is well lighted, level and generally dry. Tr.
490-91, 476. Any spillage would be cleaned routinely. Tr. 498. None of these claims were
refuted by the Secretary.
I find there is insufficient evidence to establish that it is reasonably likely that a miner
would trip or fall onto the track; this violation is not properly assessed as S&S. Hlywa could not
say how frequently spillage would occur creating a tripping hazard and did not disagree with
Lambert that the area, except where a spill was being attended to, was dry, level and well lit.
There is no basis upon which to find a trip or fall was likely to occur.
Negligence
Based upon the prior fatality at the old bunker system and the fact that a prudent pre-shift
or on-shift examiner would have seen this condition, Hlywa assessed the negligence as moderate.
Tr. 446-47. The root cause of the prior accident in this area, however, occurred as the result of
an entirely different set of circumstances from those presented here. Based upon the evidence
that the violation was abated by taking up only nine inches of slack, I find the condition was not
as apparent as the Secretary proposes. I do not find sufficient evidence that the cord was lying
on the ground as the inspector testified as his notes to not reflect this important detail. It appears
from his notes that he issued the citation after he lowered the cord to the ground and found that it
did not work. I also find that the operator was properly maintaining the area along the walkway
to prevent the build-up of accumulations which could cause tripping hazards. For these reasons,
I find the negligence is properly assessed as LOW.
Citation No. 8185034
This citation was issued by Inspector Ratliff on February 2, 2011 at 4:35 p.m. for a
second alleged violation of the approved ventilation plan under 30 C.F.R. §75.370(a)(1). The
narrative section of the citation reads:
The approved Ventilation Plan was not being complied with on the 17
Right Panel 013 MMU. In the No. 2 left face inby SS# 27796 there was only 748
cfm behind the line curtain. The 17 Right Panel has been developed over 7,000
feet deep and the Ventilation Plan requires at least 6,000 cfm in all idle places.
There was 1.5 percent of methane found in the face of the 2 left crosscut. This

36 FMSHRC Page 485

condition exposes miners to the hazards associated with a build-up of methane
and an ignition. Two miners were working in the No. 2 entry at this time.
Ex. S-7.
The citation is assessed as reasonably likely to result in a fatality to two miners, S&S and
the result of moderate negligence. The same standard had been cited 90 times in the preceding
two years. The proposed penalty is $12,500.00.
I affirm the violation as non-S&S with low negligence as explained below.
As the inspector was walking up the 2 left entry, a roof bolter was backing out of the 2
left crosscut coming from the face at the end of the shift. Tr. 512, Ex. S-7. The evening crew
had just arrived on the section. Ratliff took an air reading at the face of the 2 left crosscut
approximately 150 feet from where the roof bolter was located. Tr. 516, Ex. R-12. He measured
748 cfm behind the line curtain that extended up to the face in this area. Tr. 517, Ex. S-7. He
noticed that the bottom of the curtain had been pulled against the rib which he surmised had
happened when the roof bolter was backed out at the end of the previous shift according to his
in-court testimony. Tr. 520-21. Ratliff also obtained a methane reading of 1.5 at the face. Tr.
517-18. As a result of these findings, he issued the citation.
The Respondent takes the position once again that it should have been given the
opportunity to correct the violation prior to the issuance of the citation. Resp’s Brief. Ronald
Ratliff22 testified that the roof bolter located in the 2 left crosscut had dislodged a pogo stick
holding the line curtain away from the rib when it backed out of the face. Tr. 533. At the time
he and the inspector arrived at this location at 4:15 p.m., the second shift foreman had not yet
had the opportunity to make his imminent danger run because he was conducting his safety
meeting with the on-coming crew. Tr. 532. The pre-operational checks on the machinery would
normally be done at 5 p.m., forty-five minutes after he and Ratliff arrived. Tr. 528-29. He stated
that he could not be sure when the curtain had been dislodged but he felt it could have been on
the off-going shift. Tr. 536. When he saw the dislodged curtain, he started to fix it but the
inspector stopped him in order to take the air reading first. Tr. 530.
Gregory Smith23 testified that his general practice at the start of the evening shift is to
make an imminent danger run at the face taking methane and air readings and noting conditions
that require corrections before production begins. Tr. 541. At the time the inspector and Ronald
Ratliff arrived at the section, the crew had not begun production and he had not yet made his
imminent danger run. Tr. 541. Had he been able to do so, he would have corrected the
ventilation controls. Tr. 542. He further stated that there had been a similar instance in the past
where Inspector Ratliff witnessed a fly pad being knocked down and he did not allow the
22

Ronald Ratliff is a mine foreman certified in 2000. He was a safety inspector at the
time of the hearing. Tr. 525-26.
23

Smith began his mining career in 2000 working on conveyor belts and then became a
certified foreman in 2011. He is currently a section supervisor on the evening shift.

36 FMSHRC Page 486

foreman to reinstall it before taking an air reading. He testified, “I think he may have wrote (sic)
citation on low air at that time.” Tr. 544. Respondent mischaracterized this testimony in its
post-hearing brief by stating that the witness confirmed there were other similar occurrences and
that a violation was issued. The Respondent offered no evidence to confirm this alleged event or
that a citation was issued. I find the testimony uncorroborated and unreliable.
For the same reasons I discounted the Respondent’s argument that it should have been
given an opportunity to correct a violation before it was cited, I reject it in this instance as well. I
find the violation has been established.
S&S
As previously stated, this mine is an extremely gassy mine with methane being liberated
from the faces on a constant basis. Ratliff confirmed that there were no ignition sources present
and the area was well rock dusted, however, he had no memory of whether the area was wet or
dry. Tr. 518. The roof bolter was approximately 150 feet from the cited area and was deenergized. Under normal continued mining operations, production would not have commenced
until the foreman had completed his imminent danger run, taken his air and gas readings, and the
bolter operator had done his pre-operational checks. Both would have been done within
approximately twenty minutes of the time the citation was issued. The lack of air velocity as
well as the elevated methane reading would have been detected at that time and the curtain
repaired. For this reason, I find that the possibility of an ignition or explosion was not
reasonably likely.
Negligence
The Secretary’s position is that moderate negligence is appropriate because the foreman
should have been aware of this violation. The equipment that caused the line curtain to become
displaced had completed its move on the preceding night shift giving the Respondent sufficient
time and opportunity to discover and correct the condition. Sec’y’s Brief. I do not find this
position supported by the evidence. The inspector testified that the roof bolter that displaced the
curtain was “at the mouth of the face, backing out of the face” when he arrived at the cited
location. Tr. 512. He went on to say, without referencing his notes, that the roof bolter was
already parked and denied that he had testified earlier that it was being moved when he arrived.
Tr. 519. He stated that nothing was going on when he arrived at 4:35. Id. His notes taken
contemporaneously with his inspection, however, clearly state that “[t]he day shift belt crew was
backing the Fletcher Dual head roof bolter out of the 2 left crosscut as I walked up the # 2
entry. 4:35pm.” Ex. S-6 (emphasis added). I find the notes taken at the time of the violation are
a more accurate recording of the events than the inspector’s memory at the time of the hearing.
They establish that the violation had very recently occurred providing the operator with far less
opportunity to become aware of the violation than the Secretary alleges.
The violation was also not entirely obvious. As the Secretary confirms, the curtain was
not completely sucked in against the rib and it was not a foregone conclusion that there would be
insufficient ventilation behind it. Sec’y’s Brief.

36 FMSHRC Page 487

For these reasons I find that the operator’s negligence is more appropriately assessed as
LOW.
Civil Penalties
The Commission has reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 176364 (Aug. 2012):
Section 110(i) of the Mine Act grants the Commission the authority to
assess all civil penalties provided under the Act. 30 U.S.C. §820(i). It further
directs that the Commission, in determining penalty amounts, shall consider:
The operator’s history of previous violations, the appropriateness of such penalty
to the size of the business of the operator charged, whether the operator was
negligent, the effect on the operator’s ability to continue in business, the gravity
of the violation, and the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i).
The Commission and it’s ALJs are not bound by the penalties proposed by the Secretary
nor are they governed by MSHA’s Part 100 regulations, although substantial deviations from the
proposed penalties must be explained using the section 110(i) criteria.24 See Sellersburg Stone
Co., 5 FMSHRC at 293. In addition to considering the 110(i) criteria, the judge must provide a
sufficient factual basis upon which the Commission can perform its review function. See Martin
Co. Coal Corp., 28 FMSHRC 247 (May 2006).
The parties have stipulated that the proposed penalties will not affect the Respondent’s
ability to continue in business. Ex. Ct.-A. The mine is large and I find the penalties assessed
herein are appropriate to the size of the business. The history of violations is contained in Ex. S16. There is no evidence to suggest that the operator did not abate the violations in good faith.
The negligence of each violation is discussed at length above. I assess the following penalties:
1. Citation No. 8177959 is affirmed as S&S affecting one person. However, I have raised the
negligence to high and I find the gravity of this violation is very serious. I assess a penalty of
$5,000.00.
2. Citation No. 8178050 is affirmed as S&S affecting two persons and I have raised the
negligence to high and find the gravity is very serious. I assess a penalty of $8,400.00.

24

Respondent has raised an objection to the special assessments levied by the Secretary
as being founded solely on the basis of the number of times the operator has been cited for a
particular standard. My assessment of penalties is based upon all of the statutory criteria above
as they relate to the facts of each violation as established by the record evidence. The special
assessments levied by the Secretary are immaterial.

36 FMSHRC Page 488

3. Citation No. 8178068 is affirmed as S&S affecting two persons and I have raised the
negligence to high. I find the gravity is very serious and assess a penalty of $8,400.00.
4. Citation No. 8178082 is affirmed as S&S affecting one person and I have raised the
negligence to high. I find the gravity is very serious and assess a penalty of $5,000.00.
5. Citation No. 8178092 is affirmed as a violation but I have modified it to non-S&S with
moderate negligence affecting one person. I assess a penalty of $750.00.
6. Citation No. 8178100 is VACATED.
7. Citation No. 8185012 is affirmed as S&S affecting three persons with moderate negligence. I
find the gravity is serious. I assess a penalty of $8,000.00.
8. Citation No. 8182533 is affirmed as a violation but I have modified it to non-S&S with low
negligence affecting one person. I find the gravity is moderately serious. I assess a penalty of
$500.00.
9. Citation No. 8185034 is affirmed as a non-S&S violation with low negligence affecting two
miners. I find the gravity to be moderately serious. I assess a penalty of $500.00.
ORDER
Citation Nos. 8177959, 8178050, 8178068, 8178082, 8178092, 8185012, 8182533 and
8185034 are AFFIRMED as modified. Citation No. 8178092 is VACATED.
Consolidation Coal Company is ordered to pay civil penalties in the amount of
$36,550.00 within 30 days of the date of this decision.25

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

25

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

36 FMSHRC Page 489

Distribution:
Michelle Kim Vaughan, Esq., U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor West,
Arlington, VA 22209-2247
Eric H. McMurray, Esq., U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor West,
Arlington, VA 22209-2247
Douglas N. White, Esq., U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor West,
Arlington, VA 22209-2247
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton PLLC, 151 N. Eagle Creek Dr., One
Fountain Plaza, Suite 310, Lexington, KY 40509

36 FMSHRC Page 490

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

February 21, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
REMINGTON LLC,
Respondent

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2009-1498
A.C. No. 46-09230-185272-01

Mine: Winchester Mine

DECISION AND ORDER
Appearances:

Joseph L. Gordon, Esq., U.S. Department of Labor, Office of the Solicitor,
Philadelphia, PA, for Petitioner
Jonathan R. Ellis, Esq., Steptoe & Johnson, PLLC, Charleston, WV, for
Respondent

Before:

Judge L. Zane Gill

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). This case
involves one citation issued under 30 U.S.C. § 814(d) (1) and one order issued under 30 U.S.C. §
814(d) (1).
The Secretary seeks civil penalties of $25,163.00 for Citation No. 8072231 and $5,645.00
for Citation No. 8072232, requesting that they be affirmed as issued or modified to reflect
increased severity of injury designations. Remington concedes the fact of a violation for Citation
No. 8072231, but contests the Significant and Substantial (“S&S”), negligence, and
unwarrantable failure designations and seeks to reduce the citation to a 104(a), non-S&S citation.
With regard to Order No. 8072232, Remington argues that there was no violation and seeks to
have the order vacated.
For the reasons listed below, I find that the violation for which Citation No. 8072231 was
issued is S&S and constitutes an unwarrantable failure to comply with a mandatory standard. I
uphold the violation cited in Order No. 8072232, and also find that the violation is S&S and
unwarrantable. Finally, I find that a total penalty of $30,808.00 is appropriate.

36 FMSHRC Page 491

I. Procedural History
History
On March 24, 2009, MSHA Inspector Martin Carver issued Citation No. 8072231 and
Order No. 8072232 at Remington’s Winchester Mine, an underground coal mine located in
Kanawha County, West Virginia. The Secretary of Labor filed a petition for the assessment of a
civil penalty on July 15, 2009, and the operator, Remington LLC, filed an answer contesting the
penalties on August 10, 2009. A hearing was held in Charleston, West Virginia on December 6,
2011.
Pretrial Motions
As a preliminary matter, I will memorialize my rulings on two pretrial motions. Both
motions dealt with the Secretary’s proffered expert, Dr. Sandin Phillipson, an MSHA geologist
who was called to testify about the likelihood of a roof fall in one of the cited areas. I heard oral
arguments on each motion before deciding these issues.
First, Remington moved to compel production of email communications between the
Secretary and Dr. Phillipson or, alternately, a detailed privilege log. Remington argued that it
was entitled to these messages because they contained factual information that the expert relied
on in forming his opinion. The operator claimed that without this information, it would be
prejudiced in its ability to cross-examine Dr. Phillipson. The Secretary contended that the emails
were privileged, and that no privilege log was required under Rule 26 of the Federal Rules of
Civil Procedure.1 After reviewing Dr. Phillipson’s pre-trial deposition and the parties’ motions, I
1

The Commission Procedural Rules do not address this issue, but Fed. R. Civ. P. 26(b)
(4) (C) provides useful guidance. The rule reads as follows:
(C) Trial-Preparation Protection for Communications
Between a Party's Attorney and Expert Witnesses. Rules
26(b)(3)(A) and (B) protect communications between the party’s
attorney and any witness required to provide a report under Rule
26(a)(2)(B), regardless of the form of the communications, except
to the extent that the communications:
(i) relate to compensation for the expert’s study or
testimony;
(ii) identify facts or data that the party’s attorney provided
and that the expert considered in forming the opinions to be
expressed; or
(iii) identify assumptions that the party’s attorney provided
and that the expert relied on in forming the opinions to be
expressed.

36 FMSHRC Page 492

found that no information was missing the lack of which would prejudice Remington’s ability to
proceed effectively in this case. Remington’s motion to compel was therefore DENIED.
Second, Remington moved to exclude Dr. Phillipson as a witness. Remington argued that
Phillipson’s use of illustrative rather than actual values in his mathematical models made his
testimony irrelevant because it provided only relative assessments of the likelihood of a roof fall
where an absolute assessment was needed. The operator further argued that Dr. Phillipson’s
testimony was ultimately lay testimony that stated common sense information, which cannot
assist the trier of fact. Because Dr. Phillipson had never visited the Winchester Mine, Remington
contended that his lay testimony was not based on his own perceptions and was therefore
inadmissible. In response, the Secretary argued that Dr. Phillipson’s expert opinions would
present complex testimony that discussed the scientific reasons why the area in question was
unique and at a higher risk of roof falls. Dr. Phillipson would also discuss how the unsupported
roof’s configuration increased the likelihood of a roof fall in the cited area. The Secretary
contended that Phillipson’s testimony would present scientific information that would be helpful
to the trier of fact.
Commission Rule 63(a) sets the parameters for admissible evidence in Commission
proceedings. 29 C.F.R. § 2700.63(a). The rule states that “Relevant evidence, including hearsay
evidence that is not unduly repetitious or cumulative, is admissible.” 29 C.F.R. § 2700.63(a).
Although the Commission is not required to apply them, the Federal Rules of Evidence have
value by analogy. Mid-Continent Res., Inc., 6 FMSHRC 1132, 1136 n.6 (May 1984). The
Commission discussed the qualification of expert witnesses in In re: Contests of Respirable Dust
Sample Alteration Citations, stating that
“[W]e are guided by principles established under Rule 702 of the
Federal Rules of Evidence: ‘If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.’ Fed. R.
Evid. § 702.”
17 FMSHRC 1819, 1843 (Nov. 1995), aff’d sub nom. SOL v. Keystone Coal Mining Corp., 151
F.3d 1096 (D.C. Cir. 1998) (emphasis added). The Commission further stated that
“Expert witnesses testify to offer their scientific opinions on
technical matters to the trier of fact.” Cyprus Tonopah Mining
Corp., 15 FMSHRC 367, 372 (March 1993), quoting Asarco, Inc.,
14 FMSHRC 941, 949 (June 1992). “Unlike an ordinary witness,...
an expert is permitted wide latitude to offer opinions, including
those that are not based on first-hand knowledge or observation.”
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469, 482 (1993).
Id.

36 FMSHRC Page 493

Dr. Phillipson holds a Ph.D. in Geology from the Colorado School of Mines, and his CV
reflects extensive knowledge of roof control and geological hazards in mines. (Ex. S-21) He has
11 years of experience in the Roof Control Division of MSHA’s Technical Support Branch. (Ex.
S-21) After reviewing the motions and exhibits submitted by the parties, which included Dr.
Phillipson’s expert report and curriculum vitae as well as the transcript of his deposition, I
determined that his background in geology and mine roof control qualify him as an expert in
those areas. As such, he is not required to base his opinions on firsthand observation. Moreover,
in keeping with my duty to admit only reliable scientific evidence2, the expert report and the
vigorous cross-examination during Dr. Phillipson’s deposition convinced me that the scientific
evidence Dr. Phillipson would present was reliable. Based on the expert’s report submitted by
the parties, I found that Dr. Phillipson’s testimony would help me understand the evidence, and
that it could therefore be presented at the hearing. Remington’s motion to exclude Dr. Phillipson
was DENIED. These preliminary rulings are affirmed here.
II. Findings of Fact3
Stipulations
1. Stipulation as to Jurisdiction
Respondent acknowledges jurisdiction under section 3(d) of the Mine Safety & Health
Act, 30 U.S.C. § 802(d) (“the Act”). Respondent also acknowledges that the products of
the Winchester Mine (“the Mine”) entered the stream of commerce within the meaning
and scope of Section 4 of the Act, 30 U.S.C. § 803.
2. Fact Stipulations
a) Remington, LLC (“Remington”) is an “operator” as defined in § 3(d) of the
Federal Mine Safety and Health Act of 1977, as amended (“Act”), 30 U.S.C. §
803(d), at the Mine at which the citations were issued.
2

Respirable Dust Cases, 17 FMSHRC at 1843 (citing Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993)).
3

The findings of fact are based on the record as a whole, including my careful
observation of the witnesses during their testimony. In resolving conflicts of testimony, I have
taken into consideration the interests of the witnesses, corroboration or lack thereof, and
consistencies or inconsistencies in each witness’s testimony and among the testimony of the
witnesses. In evaluating the testimony of each witness, I have also relied on his or her demeanor.
Any failure to provide detail on each witness's testimony is not to be deemed a failure on my part
to have fully considered it. The fact that some evidence is not discussed does not indicate that it
was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (noting that an
administrative law judge is not required to discuss all evidence and failure to cite specific
evidence does not mean it was not considered).

36 FMSHRC Page 494

b) The operations of Remington at the Mine are subject to the jurisdiction of the
Act.
c) This proceeding is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission and its designated Administrative Law Judges
pursuant to Sections 105 and 113 of the Act.
d) The individuals whose signatures appear in Block 22 of the citations at issue in
this proceeding were acting in their official capacity and as authorized
representatives of the Secretary of Labor, at the time that the citations at issue in
this proceeding were issued.
e) True copies of the citations at issue in this proceeding were served on
Remington as required by the Act.
f) Remington demonstrated good faith in the abatement of the citations at issue in
this proceeding.
The Story
Remington, LLC’s Winchester Mine is an underground coal mine located in Kanawha
County, West Virginia. The mine operates around the clock in three shifts: a day shift that starts
at 6:30 AM and ends between 3:30 and 4:00 PM; an evening shift that begins between 3:30 PM
and 4:00 PM and ends at 1:30 AM; and a midnight shift that lasts from 11:00 PM to 7:00 AM.
(Tr. 45:5-46:2) Pre-shift reports are conducted before the beginning of each shift and identify
hazards that need to be corrected before anyone enters the mine for the eight-hour shift. (Tr.
54:6-55:7). On-shift reports are conducted during the shift by the supervisor or examiner. (Tr.
54:6-55:7) These reports identify hazards encountered during the shift and note whether they
have been corrected. (Tr. 54:6-55:7)
Toward the end of the evening shift on March 23, 2009, while on his way to call his preshift report out to the surface, Foreman Frank Chambers encountered Continuous Miner
Operator J.C. Rhodes in the 7 right cross-cut (“7 right”). (Tr. 310:22-311:12, 311:19-22) Seven
right was the last cross-cut inby the face. (Ex. S-13) Rhodes was in the process of making the last
cut of the night, a punch-through cut that would drive the 7 right cross-cut into the 8 entry. (Tr.
278:6-15, 281:21-282:3; Ex. S-13) At the Winchester Mine, it is fairly common for a cut to be
made at the end of a shift and bolted the next day. (Tr. 272:20-273:6) Because the cut Rhodes
was making was the last cut of the night and would remain unbolted until the March 24 day shift,
Chambers asked Rhodes to hang reflectors around the unbolted area. (Tr. 310:16-21) Federal law
requires the use of reflectors to warn miners of unbolted areas (Tr. 82:8-15), and the Winchester
Mine’s roof control plan required Remington to hang two or more reflectors to mark the secondto-last row of roof supports. (Tr. 86:24-87:22; Ex. S-23 at 6) Miners are trained that these
reflectors signal hazards and rely on them to identify and avoid dangerous areas. (Tr. 117:16118:10) It is common for continuous miner and roof-bolter operators to hang reflectors in punchthrough cuts at Remington (Tr. 314:22-315:11), and Rhodes had put up reflectors in the past. (Tr.

36 FMSHRC Page 495

318:7-9) Chambers called out the pre-shift report, which noted only that 7 right “needs cleaned
and dusted,” at 10:44 PM on March 23. (Ex. S-7)
The cut left an unbolted area approximately 30 feet in length. (Tr. 97:2-20; Ex. S-24) The
unbolted area started in 7 right, and it extended seven to eight feet into the 8 entry because three
bolts in the first row of bolts in the intersection had been sheared off during the cutting process.
(Tr. 92:11-15, 97:10-20; Ex. S-13, Ex. S-21 at 3) Because the unbolted area could have been
approached from either 7 right or the 8 entry, reflectors should have been hung in both of those
areas to prevent miners from inadvertently walking under unsupported roof. (Tr. 82:8-18; Ex. S23 at 6) Rhodes, who had between six months and one year of mining experience (Tr. 317:9-19),
only hung a single reflector after he finished the cut. (Tr. 316:6-12) This reflector was hung in 7
right, at the last row of bolts before the unbolted area. (Tr. 82:3-7) Rhodes later explained that he
only hung one reflector because he only had one reflector with him at the time. (Tr. 311:13-18,
316:6-12) There were other reflectors available that Rhodes could have gone and gotten. (Tr.
316:13-18)
The area was left in this condition for the duration of the March 23 midnight shift, which
is a non-production maintenance shift. (Tr. 299:2-7) Roof bolting is considered production, and
therefore not performed on the midnight shift. (Tr. 273:7-16) Miners on the midnight shift may
occasionally have reason to travel to the face, but most of the midnight shift work is performed
outby the faces. (Tr. 299:23-300:9, 321:13-322:14) The midnight shift foreman, however, is
required to take methane readings at each face every two hours during his shift. (Tr. 55:14-56:10;
Ex. S-10) He also conducts a pre-shift inspection of the area where miners on the day shift will
be working. Both of these tasks required traveling across the section and taking methane
readings at each of the faces, and the pre-shift examination requires the foreman to travel
throughout the working section. (Tr. 54:6-23) Midnight Shift Foreman Brian Lester’s Date, Time
and Initials (“DTIs”) were found at all faces, including the 8 face, after the area was bolted. (Tr.
138:5-16) DTIs are the date, time, and initials left by an examiner to show he has been at a face.
(Tr. 116:5-21) Remington’s records reflect that Lester conducted gas checks from midnight to
1:00 AM, from 2:00 AM to 3:00 AM, from 4:00 AM to 5:00 AM, and from 6:00 AM to 7:00
AM (Ex. S-10)
These records also show that Lester performed a pre-shift examination from 4:00 AM to
4:45 A.M, while he was doing his 4:00 AM methane readings. (Tr. 136:17-23; Ex. S-5) On
Lester’s pre-shift report, he marked that 7 right was part bolted and listed “Ref.,” or “reflector,”
as the action taken. (Ex. S-5) There was also an unbolted area near the 7 Face, which was noted
on the pre-shift inspection as well. (Tr. 69:11, 78:18-22; Ex. S-5) This area had been properly
marked with reflectors. (Tr. 78:18-22) The 8 entry, along with the 1, 2, 3, 4, 5, 6, and 9 entries
and the 5 left cross-cut, was listed as having no hazards observed, although the pre-shift report
indicates that Lester hung a reflector somewhere in one of those areas. (Ex. S-5)
On the morning of March 24, Inspectors Martin Carver and Edgar Hendrick inspected the
Bays Mains 003/004 section of the Winchester Mine. (Tr. 58:3-59:6) Before going underground,
the inspectors reviewed the mine map and the pre-shift and on-shift reports for the previous three
shifts. (Tr. 47:6-48:7, 55:7-56:10) Carver and Hendrick inspected separate parts of the section.
(Tr. 59:2-10)

36 FMSHRC Page 496

Carver began his inspection with an imminent danger sweep across the faces, traveling
through the last cross-cut inby the faces. (Tr. 58:18-22) Remington Foreman Tommy Hess
accompanied Carver on his inspection. (Tr. 142:21-143:8) Hess conducted his daily on-shift
inspection and took methane readings while Carver inspected the mine. (Tr. 58:18-22) In the
cross-cut between the 6 and 7 entry, Carver encountered three men working near an energized
roof bolter. (Tr. 59:7-60:2, 60:18-22, Ex. S-13) The roof bolter, which was in the last cross-cut
inby the face, had been energized before the Foreman completed a required gas checks. (Tr.
60:17-22, 61:17-62:5, 63:7-16; Ex. S-12 at 2, 3) Unbeknownst to Carver, these men were
working 20 to 30 feet away from the unmarked, unsupported roof. (Tr. 128:2-8) Carver spoke to
them, then issued a citation to Hess for having energized equipment near the face before gas
checks had been completed. (Ex. S-14) Remington did not contest the citation, and it is not one
of the citations at issue in this case. (Tr. 66:18-20; Ex. S-22 at 2)
In the next cross-cut, between the 7 and 8 entry, Carver and Hess found two rows of
bolts, followed by the unsupported roof. (Tr. 93:16-20; Ex. S-13, Ex. S-12 at 4) Carver and Hess
observed that only a single reflector had been hung in the 7 right cross-cut. (Tr. 82:3-7) Carver
nearly walked under the unsupported roof because reflectors were not hung in a way that
indicated a hazard (Tr. 79:16-80:6, 82:1-18, 87:8-12; Ex. 12 at 12) At this point, around 7:30
AM, Carver issued Citation No. 8072231 for the missing reflector. (Tr. 88:8-12; Ex. S-11) To
complete the imminent danger sweep and on-shift examination without traveling under
unsupported roof, Carver and Hess traveled out-by to the next cross-cut, crossed over to the 8
entry, and proceeded in-by toward the unbolted 7-right cross-cut. (Tr. 88:4-12; Ex. S-13.) After
arriving at the intersection, they observed that three roof bolts in the first row of bolts outside of
the cross-cut had been sheared off. (Tr. 89:19-91:17.) No reflectors had been hung in the 8 entry.
(Tr. 88:13-89:3.) Carver added this to citation No. 8072231. (Tr. 91:7-13) The citation was
issued as an unwarrantable failure because the high degree of danger posed by unsupported roof
and the minimal effort required to hang the reflectors showed a reckless disregard for miners’
safety. (Tr. 120:4-13)
Carver confirmed that the 7 right cross-cut was not bolted by standing under the last row
of bolts and looking down the 7 right cross-cut. (Tr. 89:4-90:10; Ex. S-13) Although it was
impossible to see the entire length of the unbolted roof with the head lamps Hess and Carver
wore (Tr. 98:7-14, 163:11-164:5), Hess testified that what he could see looked like good roof.
(Tr. 271:9-15) Carver observed gob and loose coal in the middle of the 8 entry, and both sides of
the intersection had loose coal and rock along their entire length. (Tr. 99:21-100: 15; Ex. S-13 3)
This would have to be cleaned by a scoop operator as part of the mining process. (Tr. 100:19-23)
The debris came from the push-through cleanup run, in which the continuous miner operator
pushes coal that can’t be loaded into the intersection. (Tr. 100:2-9) Carver also testified that roof
can collapse at any time, even if it looks perfectly good. (Tr. 109:19-110:11)
Cross-cuts and entries at Remington are approximately 18 to 20 feet wide (Tr. 302:13-19;
Ex. S-23 at 1), and unsupported area is measured from roof bolt to roof bolt. (Tr. 97:2-14) The
distance from the last bolt in the cross-cut to the first bolt in the intersection was 30 feet. (Tr.
96:16-98:4; Ex. S-13, Ex. S-24) When roof falls occur, however, the falling area typically goes
into the second row of bolts. (Tr. 81:1-8) I credit Carver’s testimony that roof fall victims are not

36 FMSHRC Page 497

always killed outright, but roof fall survivors tend to have serious injuries that require
amputations. (Tr. 111:2-16)
During the inspection, Inspector Hendrick issued citations for two violations, neither of
which are at issue in this case. (Tr. 131:18-23, 260:4-261:4) The first citation was a grounding
violation issued because the power sled was missing a ground strap. (Tr. 260:23-261:4) The
citation was assessed as “unlikely” to cause injury or illness, but any injury that occurred would
be “fatal” because a miner would be electrocuted by 12,470 volts of electricity if he came into
contact with the ungrounded sled. (Tr. 260:23-261:4; Ex. S-17) The second citation was a
guarding violation, issued because a section of high-voltage cable was unguarded. (Tr. 260:1619; Ex. S-16) Like the first citation, this was assessed as “unlikely” to cause injury or illness, but
any injury that occurred due to the hazard would be “fatal.” (Ex. S-16) Remington did not
contest these citations. (Tr. 262:5-263:3) Because these two violations were found during the
inspection, in addition to the unsupported roof, Carver issued Order No. 8072232, which cited
Remington for an inadequate pre-shift examination. (Tr. 131:11-23; Ex. S-15) Carver designated
the order S&S because of the high degree of danger and the severity of the injuries that could
occur because of the hazards that were not recorded on the pre-shift inspection. (Tr. 140:13-19)
He issued the order as an unwarrantable failure to comply with a mandatory standard because he
felt that the foreman who conducted the pre-shift examination was not really looking for hazards,
but simply going through the pre-shift routine. (Tr. 140:20-141:11)
Remington investigated the failure to hang reflectors. (Tr. 309:8-13) Robert Hill,
Remington’s Safety Manager (Tr. 307:18-22), interviewed Chambers, Rhodes, and Lester. (Tr.
309:14-18) He spoke to Chambers and Rhodes about the failure to hang reflectors. (Tr. 309:1621) Chambers explained to Hill that he was on his way to call out an examination toward the end
of the shift when he told Rhodes to hang the reflectors (Tr. 310:22-311:7), and Rhodes
confirmed what Chambers said when Hill spoke to him. (Tr. 311:13-18) Neither Rhodes nor
Chambers testified at the hearing. Chambers is no longer with the company, having been let go
as part of an employee cut-back because he was “not a very good supervisor.” (Tr. 313:12-18)
Rhodes has worked for Remington on and off between the time the citation was issued and the
hearing date. (Tr. 316:19-23) There is no evidence that either Rhodes or Chambers was
disciplined for the failure to hang reflectors on March 23, 2009. Hill further stated that a result of
the investigation, he determined that the foremen were not looking as hard as they should have
been on their pre-shift inspections. (Tr. 309:19-310:7) There is no evidence that Lester was
disciplined by the company for the way he conducted his inspections.
Hess testified at hearing that although he did not find out about the missing bolts in the 8
entry until he made his on-shift examination (Tr. 288:19-22), he would have known to carefully
check the intersection of 7 right and the 8 entry for hazards. He explained that taken together, the
updated mine map he reviewed before going underground and the pre-shift report noting that 7
right was only partially bolted would have alerted him that a punch-through cut had been made.
(Tr. 289:10-290:2) Although there were two unbolted areas in the Bays Mains section, Hess
testified that the area in 7 right was the first thing he would address on the day shift. (Tr. 69:11,
Tr. 274:16-23; Ex. S-5)

36 FMSHRC Page 498

Dr. Sandin Phillipson, the Secretary’s expert, testified at hearing with regard to the roof’s
stability over time. Phillipson has not visited the mine site, but he testified credibly that a visit to
the mine site would not have been feasible, nor would it be necessary for his report and
testimony. (Tr. 223:5-12, 224:9-16) He explained that the unsupported area’s location at an
intersection dramatically increased the likelihood of a roof fall in the area. Specifically, he
testified that the removal of the 3 bolts in the cross-cut more than doubled the likelihood of a
roof fall (Tr. 233:16-234:15, 237:16-238:15), and that a roof fall was most likely in the part of
the unsupported area that extended into the intersection. (Tr. 227:18-228:3) Phillipson also
discussed two roof falls that occurred in the Bays Mains section between the issuance of the
citation and the hearing. A roof fall on July 25, 2011, was about 400 feet from the cited area, and
a roof fall on August 7, 2009, was about 1,100 feet away from the cited area. (Tr. 240:19-241:8)
Phillipson explained that having two roof falls in the vicinity of the unbolted area suggests that
the roof quality in the unbolted area was poor. (Tr. 241:9-15)
III. Legal Principles
The citation and order at issue in this case were issued under section 104(d) (1) of the
Mine Act, 30 U.S.C. § 814(d) (1).4 In order to uphold a citation issued under section 104(d) (1),
the Secretary must prove that the violation would significantly and substantially contribute to the
cause and effect of a safety or health hazard. The Secretary must also prove that the citation is an
unwarrantable failure to comply with a mandatory standard.
4

Section 104 (d) (1) of the Mine Act, 30 U.S.C. § 814(d) (1), reads as follows:
If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has been
a violation of any mandatory health or safety standard, and if he
also finds that, while the conditions created by such violation do
not cause imminent danger, such violation is of such nature as
could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard, and if he
finds such violation to be caused by an unwarrantable failure of
such operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation given to the
operator under this chapter. If, during the same inspection or any
subsequent inspection of such mine within 90 days after the
issuance of such citation, an authorized representative of the
Secretary finds another violation of any mandatory health or safety
standard and finds such violation to be also caused by an
unwarrantable failure of such operator to so comply, he shall
forthwith issue an order requiring the operator to cause all persons
in the area affected by such violation, except those persons referred
to in subsection (c) of this section to be withdrawn from, and to be
prohibited from entering, such area until an authorized
representative of the Secretary determines that such violation has
been abated.

36 FMSHRC Page 499

The Commission has established a four-part test to determine whether a violation is S&S.
To designate a violation S&S, judge must find “(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). The third and fourth factors will, as a practical
matter, often be combined in a single showing. Id. at 4. To show a reasonable likelihood that the
hazard will result in an injury, the Secretary is not required to prove that it is more likely than not
that the hazard will result an injury. U.S. Steel Mining Co., 18 FMSHRC 862, 865-66 (June
1996). The S&S analysis must be made in the context of continuing mining operations.
Texasgulf, Inc., 10 FMSHRC 1125 (Aug. 1985); U.S. Steel, 7 FMSHRC 1125, 1130 (Aug.
1985).
Unwarrantable failure “refers to more serious conduct by an operator in connection with
a violation,” Martin Cnty. Coal Corp., 28 FMSHRC 247, 264-66 (May 2006), and the
Commission has defined unwarrantable failure as “aggravated conduct, constituting more than
ordinary negligence.” Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987), Buck Creek
Coal v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995). Unwarrantable failure is characterized by
such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack
of reasonable care.” Emery Mining, 9 FMSHRC at 2003; Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th
Cir. 1995) (approving Commission's unwarrantable failure test).
Whether conduct is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist.
These factors often include (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, 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). These seven factors are viewed in the context of
the facts and circumstances of a particular case, and some factors may be irrelevant to the
scenario at hand. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Nevertheless, I
must examine all of the relevant facts and circumstances of each case to determine if an
operator's conduct is aggravated, or whether mitigating circumstances exist. Id.; Io Coal, 31
FMSHRC at 1351.

36 FMSHRC Page 500

IV. Analysis and Conclusions of Law
Citation No. 8072231
Citation No. 8072231 was assessed as highly likely to cause permanently disabling injury
or illness, and designated as S&S. (Ex. S-11) The inspector assessed the negligence as high. (Ex.
S-11) The condition cited states that
[t]he operator failed to comply with the approved roof control plan
on Bays Mains 003/004 mmu section. There was only one reflector
hung in the #7 to #8 crosscut and no reflectors were in the #8 outby the holed crosscut as required. This violation is an
unwarrantable failure to comply with a mandatory standard.
(Ex. S-11) The citation was issued for a violation of 30 C.F.R. § 75.220(a) (1), which requires
that
Each mine operator shall develop and follow a roof control plan,
approved by the District Manager, that is suitable to the prevailing
geological conditions, and the mining system to be used at the
mine. Additional measures shall be taken to protect persons if
unusual hazards are encountered.
Remington does not contest that a violation occurred, but contests the S&S, negligence, and
unwarrantable failure designations.
Gravity and Significant and Substantial
To uphold a citation, the Secretary must prove the gravity designations set out in the
citation and prove that the citation is S&S. Under Mathies, these showings are closely linked in
that as long as a violation of a mandatory standard and a discrete safety hazard are proved, proof
that a violation is highly likely, or even reasonably likely, to result in a serious injury would
necessitate an S&S designation. As a result, it is appropriate to address the gravity and S&S
determinations together.
The Secretary argues that the gravity and S&S designations should be upheld. According
to the Secretary, Remington’s failure to hang the reflectors exposed miners on the evening,
midnight and day shifts to dangerous, unsupported roof because miners on all three shifts could
have traveled in the unsupported area. He further argues that the failure to hang the reflectors
contributed to the hazard by falsely signaling that it was safe to travel through the unbolted area.
The roof was highly likely to fall because of the length of time the area remained unbolted and
the fact that the unbolted area extended out into an intersection. The Winchester Mine’s history
of roof falls near the unbolted area further supports the conclusion that a roof fall was highly
likely. If it occurred, a roof fall would result in a permanently disabling or fatal injury. For these
reasons, the Secretary contends that Remington’s failure to hang the reflectors was highly likely
to result in at least a permanently disabling injury, justifying an S&S designation for this citation.

36 FMSHRC Page 501

Remington argues that the facts show that the violation was not reasonably likely to result
in an injury, making an S&S designation inappropriate for this citation. With regard to the
likelihood of injury, Remington argues that the Secretary’s evidence does not show that a miner
was likely to be in the unbolted area, and that any miner traveling in that area would be alerted
that the area was unbolted because the coal gob present in the area would indicate that the area
had not been bolted or cleaned. Additionally, no one in 7 right or the 8 entry saw adverse roof
conditions and the expert witness’s testimony did not address how likely the roof in 7 right or the
8 entry was to fall. Finally, Remington points out that the inspector changed the citation from
“reasonably likely” to cause injury to “highly likely” to cause injury after leaving the mine and
changed his notes after changing the citation, arguing that the change constitutes evidence that
the cited condition was not highly likely to result in an injury.5
Remington does not contest that only one reflector was hung before the beginning of the
unsupported roof in 7 right, nor does it contest that no reflectors were hung around the shearedoff bolts in the 8 entry. This is a violation of Remington’s roof control plan, which requires that
two or more reflectors be hung at the next-to-last full row of roof bolts before an unsupported
area. (Ex. S-23 at 6) Roof control plan provisions are enforceable as mandatory standards.
Martin Cnty. Coal, 28 FMSHRC at 254-255. The violation therefore meets the first of the four
Mathies criteria, the violation of a mandatory safety standard. The failure to hang reflectors
contributes to a discrete safety hazard. Miners in the Winchester Mine are trained to rely on
reflectors in order to recognize and avoid unsafe conditions. (Tr. 117:11-118:10) Failure to hang
reflectors exposes miners to the hazard of unsupported roof because without these visual
indicators, a miner could unknowingly enter the unsupported area.
The third element of the Mathies test requires the Court to consider whether the identified
hazard—in this case, walking under unsupported roof—would result in an injury. Mathies, 6
FMSHRC at 3, 4. This prong of Mathies focuses on whether the safety hazard contributed to by
the violation is likely to cause injury, not whether the violation itself will cause injury. Musser
Eng’g., Inc., 32 FMSHRC 1257, 1281 (Oct. 2010).
Secretary’s expert testified that because the unbolted area extended into the intersection,
the likelihood of a roof fall in the unbolted area more than doubled. (Tr. 233:11-234:15, 237:16238:15) He was unable to assign a specific, actual value to the likelihood of injury, but the crux

5

I do not find Remington’s argument about the changes to Carver’s notes and penalty
assessment persuasive. Carter convincingly explained his reasoning for making the changes at
hearing, testifying that he most likely marked the citation “reasonably likely” while performing
the inspection, then modified it after further consideration. Carver had the discretion to do this.
Moreover, this change is analogous to an amendment to a citation, which is to be freely granted
prior to hearing unless the operator can show prejudice. No such showing has been made here.

36 FMSHRC Page 502

of his testimony was the dramatic increase in likelihood.6 Unsupported roof can fall at any time,
and if a miner were under it, he would be injured. Moreover, because roof falls usually come into
the second row of bolts (Tr. 80:18-81:8), a miner could be injured by a roof fall without walking
directly underneath the unsupported area. This is particularly problematic for miners traveling in
the 8 entry toward the face. The first row of bolts was 7 feet into the 8 entry, putting the second
row of bolts 11 to 12 feet into the 8 entry based on the four-foot spacing requirements in the
Winchester Mine’s roof support plan. (Tr. 162:16-23; Ex. S-23) In an 18 to 20-foot wide entry,
this dramatically increases the likelihood that a miner traveling in the 8 entry would be exposed
to the hazard, especially if he or she were operating a large piece of machinery such as a scoop.
The cut that created the unbolted area was made toward the end of the shift, around 11:00
PM (Tr. 310:22-311:7; Ex. S-7; Resp. Br. 13), and the inspector issued a citation for the hazard
during the on-shift inspection for the day shift the next day around 7:30 AM. (Ex. S-11) The area
then remained unbolted for a period of eight and a half hours. During this period, at least five
miners were exposed to the hazard. Lester, the midnight shift foreman, was exposed to the
condition as he traveled throughout the section taking methane readings at each of the faces (Tr.
116:6-117:1) and conducting the pre-shift examination for the oncoming day shift. Lester would
have had no reason to know to avoid the unbolted area until he found it on his pre-shift
inspection, which was conducted during his third run across the faces, because the pre-shift
report for the midnight shift does not mention the unbolted area in 7 right. (Ex. S-6) Second,
Carver encountered three miners on the section who were working 20 to 30 feet away from the
unbolted area. These men could easily have walked under the unsupported roof without
reflectors to warn them away from it. Finally, Hess (along with Carver) was exposed to the
hazard when he conducted his on-shift examination and nearly walked under the roof. Evening
shift miners, who would have been working all over the section, were also likely exposed to the
hazard at the end of their shift as they traveled back to the mantrips to exit the mine.
Carver testified credibly that he observed coal debris in the form of loose coal and rock in
the middle of the intersection (Tr. 99:21-100:1, 100:10-15; Ex. S-13), which would have to be
cleaned by a scoop operator as part of the mining process. (Tr. 100:19-23) In the course of
continued normal mining operations, a scoop operator cleaning up the gob in the intersection
would most likely have been exposed to the hazard.
Although gob and loose coal was found in the intersection, I am not persuaded that the
gob alone would have alerted miners to the unsupported condition of the roof and prevented
them from being exposed to the hazard. Carver testified credibly that loose gob indicates that an
area has been mined and has not been cleaned yet, but not necessarily that that the area is
unsupported. (Tr. 165:13-22) Moreover, Foreman Lester’s DTIs at the 8 face belie the
effectiveness of the gob and loose coal as a deterrent to travel in the area.

6

Remington stresses Phillipson’s inability to state exactly how likely the roof was to fall,
pointing out in its reply brief that if the likelihood of a roof fall is zero, if the likelihood doubles
it will still be zero. (Resp. Reply Br. at 2-3) Due to the multiple roof falls that occurred not far
from the unbolted area between the violation and the hearing, I am not persuaded that the
likelihood of a roof fall in the area was zero or close to it.

36 FMSHRC Page 503

The injury sustained from a roof fall would most likely be serious. Roof falls are a
leading cause of underground mining fatalities, and miners who survive roof falls often receive
crushing injuries that result in amputations. (Tr. 111:2-20) In light of all the circumstances
surrounding the violation, I find that third and fourth elements of the Mathies test are satisfied
because the unsupported roof is highly likely to contribute to an injury, and the injury would be
serious. I therefore affirm the citation’s gravity and S&S designations as issued.
Negligence and Unwarrantable Failure
As discussed above, unwarrantable failure is “aggravated conduct, constituting more than
ordinary negligence.” Emery Mining Corp., 9 FMSHRC at 2004; Buck Creek Coal, 52 F.3d at
136. Because making a negligence determination is an integral part of deciding whether the
operator’s conduct constitutes more than ordinary negligence, I will discuss my negligence and
unwarrantable failure findings together.
The Secretary argues that Remington’s negligence is best categorized as “high.” First,
although the continuous miner operator was asked to hang the reflectors after making the punchthrough cut, it was ultimately the evening shift foreman’s responsibility to ensure that reflectors
were hung. Additionally, the Secretary argues that the midnight shift foreman was negligent in
failing to detect the missing reflectors. Finally, Remington was allegedly negligent for entrusting
foremen that it had little confidence in with important safety functions.7 The Secretary argues
that Citation No. 8072231 involves aggravated conduct based on three aggravating factors, the
first of which was the lengthy duration of the violation. The condition existed for parts of three
shifts, during which multiple foremen had opportunities to abate the violation and multiple
miners were exposed to the unsupported roof because of the missing reflectors. Second, the
Secretary argues that the violation was extensive because only one of the four required reflectors
was hung. Third, the missing reflectors exposed miners to extremely dangerous unsupported roof
because neither of the two approaches to the unbolted area was effectively quarantined off.
Remington argues that the level of negligence is best described as low because it was not
negligent to ask the miner operator to hang reflectors. Remington also argues that no one would
be working in 7 right or the 8 entry during the midnight shift, making it unnecessary for the
evening shift foreman to check the area for hazards. Remington therefore contends that a
designation of “no negligence” or “low negligence” would be more appropriate for this citation.
Remington further argues that the violation does not involve aggravated conduct constituting
more than ordinary negligence, making the citation ineligible for an unwarrantable failure
designation. In addition to its arguments about negligence and likelihood of injury, Remington
stresses that the violation lasted for only one hour of production time, followed by a nonproduction shift in which no miners were in the area, and the condition was discovered before
production started on the next production shift. The operator claims that it did not know of the
existence of the violation because the foreman tasked the continuous miner operator, whose
actions cannot be imputed to the operator, with hanging reflectors and expected those directions
to be followed. Additionally, the evening shift foreman and the day-shift foreman were aware
that 7 right needed to be bolted, and therefore aware of the hazard. Remington also contends that
7

I have considered this argument, but in light of all of the testimony presented it does
not affect my decision with regard to the operator’s negligence level for this citation.

36 FMSHRC Page 504

the one reflector that was hung is a mitigating factor because it would have provided some
warning to miners traveling the section. Finally, Remington argues that the Secretary presented
no evidence that Remington was on notice that greater compliance efforts were necessary for
hanging reflectors.
Section 110(i) of the Mine Act requires that in assessing penalties the Commission must
consider, among other criteria, “whether the operator was negligent.” 30 U.S.C. § 820(i). Each
mandatory standard carries an accompanying duty of care to avoid violations of the standard. An
operator's failure to satisfy the appropriate duty can lead to a finding of negligence. Negligence
“is conduct, either by commission or omission, which falls below a standard of care established
under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 100.3(d). “A mine
operator is required to be on the alert for conditions and practices in the mine that affect the
safety or health of miners and to take steps necessary to correct or prevent hazardous conditions
or practices.” Id. “MSHA considers mitigating circumstances which may include, but are not
limited to, actions taken by the operator to prevent or correct hazardous conditions or practices.”
Id. Reckless negligence is present when “[t]he operator displayed conduct which exhibits the
absence of the slightest degree of care.” Id. High negligence is when “[t]he operator knew or
should have known of the violative condition or practice, and there are no mitigating
circumstances.” Id. Moderate negligence is when “[t]he operator knew of should have known of
the violative condition or practice, but there are mitigating circumstances.” Id. Low negligence is
when “[t]he operator knew or should have known of the violative condition or practice, but there
are considerable mitigating circumstances.” Id. No negligence is when “[t]he operator exercised
diligence and could not have known of the violative condition or practice.” Id. This violation
involved negligent omissions by two foremen. A foreman’s negligent acts are imputable to the
operator. I find that taken together, their actions constitute high negligence.
I find that Chambers, the evening shift foreman, was negligent because he did not ensure
that reflectors were hung in accordance with Remington’s roof control plan. Chambers told his
continuous miner operator to hang the reflectors, something the miner operator was trained to do
and had done in the past. (Tr. 314:22-315:11, 318:7-9) He then proceeded on his way to call out
the pre-shift inspection for the oncoming midnight shift. Rhodes had one reflector with him and
hung it up, but did not go get more reflectors and complete the job. (Tr. 316:6-18) “[W]here a
rank-and-file employee has violated the Act, the operator's supervision, training and disciplining
of its employees must be examined to determine if the operator has taken reasonable steps to
prevent the rank-and-file miner’s violative conduct.” S. Ohio Coal Co., 4 FMSHRC 1458, 1464
(Aug. 1982) (citing Nacco Mining, 3 FMSHRC 848, 850-851 (Apr. 1981)). While Rhodes’
training may have been adequate, his supervision and discipline were not. There is no evidence
that Rhodes was disciplined for his actions, and the foreman negligently failed to supervise him.
I do not consider assigning a task to a rank-and-file miner to be mitigating evidence.
Foremen are held to a heightened duty of care and are ultimately responsible for complying with
MSHA’s safety regulations. “[C]onsideration of a foreman's negligence is proper in assessing a
penalty against an operator.” Nacco Mining Co., 3 FMSHRC at 850. Where a foreman's
negligence is at issue, the Commission looks to whether the foreman acted with the care required
by all of the circumstances surrounding the violation. S. Ohio Coal Co., 4 FMSHRC at 1461.
There is no evidence that Chambers followed up with Rhodes or took any further steps to ensure

36 FMSHRC Page 505

that the reflectors were hung in front of the unbolted area, even though Rhodes had been working
as a miner for less than a year. (Tr. 317:9-13) The cut was the last cut of the night, and the
operator intended to bolt the roof on the next production shift. The intervening midnight shift
was a non-production shift and miners were unlikely to be working at the faces. As a foreman,
however, Chambers was undoubtedly aware that methane readings still had to be taken at the
faces every two hours. This would require the midnight shift foreman to travel across the faces
several times before the roof could be bolted on the day shift. Seven right was the last cross-cut
inby the face, making it the logical route of travel for a foreman coming across the faces.
Because he filled in and called out the pre-shift inspection form, Chambers would also know that
the unbolted area was not marked on the pre-shift inspection, giving the midnight shift foreman
no indication that he should avoid the 7 right cross-cut. I also credit Inspector Carver’s testimony
that miners would have been working all over the section at the end of a production shift, and
would have needed to travel across the section to perform final tasks, gather their things and
return to the surface. (Tr. 168:20-169:6) Additionally, Foreman Hess admitted on crossexamination that it was possible that miners on the midnight shift could have traveled to the
faces. (Tr. 299:23-300:9) In light of the circumstances, Foreman Chambers’ failure to ensure that
the reflectors were hung is highly negligent.
The record in this case reflects that between the end of the evening shift and the
beginning of the day shift, multiple gas checks were performed at the faces and a pre-shift
inspection was conducted. During the gas checks, it would have been possible for a foreman
traveling alone and focused on taking his readings to walk through the unbolted areas in 7 right
and past the missing bolts in the intersection without noticing them. Seven Right was the last
cross-cut inby the faces, and neither of the two ways to approach the area was appropriately
marked to signal a hazard. Lester performed a pre-shift inspection, however, in which he noted
that part of 7 right was not bolted. He did not bother to hang reflectors in 7 right or the 8 entry,
even though he observed the unbolted area and listed “Ref” as the action taken. The pre-shift
report proves that Lester observed the unbolted area and knew the actions needed to abate the
roof control violation, but negligently failed to perform them.
Because of their status as foremen, both Lester’s and Chambers’ negligence is imputed to
Remington. Both of these men knew or should have been aware of the missing reflectors—and
Lester almost certainly was—but no effort was made to abate the problem in spite of the high
degree of danger it posed. I find that Remington “knew or should have known about the violative
condition or practice, and there are no mitigating circumstances.” Thus, the Secretary’s
assessment of “high” negligence is appropriate.
Several aggravating factors are present with regard to the failure to hang reflectors, the
first of which is the extent of the condition. The unbolted area was a large area, approximately 30
feet long (Tr. 97:2-20; Ex. S-24) and 18 to 20 feet wide (Tr. 228:17-21, 302:13-19; Ex. S-23 at
1), and could be accessed two ways: by entering the 7 right cross-cut and proceeding toward the
8 entry, and from the intersection of 7 right and the 8 entry. Only one of these areas had any kind
of visual indicator that a hazard was present. The single reflector hung in 7 right was insufficient
under the operator’s roof control plan, which requires two reflectors. As previously discussed,
roof falls usually come into the second row of bolts (Tr. 80:18-81:8), and the “unsupported area”

36 FMSHRC Page 506

is considered to extend to the next-to-last bolt before the unbolted area. This further increases the
extent of the hazard.
The missing reflectors posed a high degree of danger. Anyone traveling through the 7
right cross cut would have to walk under unsupported roof, which would cause fatal or
permanently disabling injuries if it fell. The unbolted area extended into an intersection, which
doubled the likelihood of a roof fall and made the unbolted area even more dangerous.
The duration of the condition is another aggravating factor. Remington stresses that the
condition only existed for a brief period of production time, but this measurement does not
accurately reflect the duration of the violation or the increased risks and exposure that resulted.
Although the condition only existed for brief periods during the day and evening production
shifts, the cut was completed sometime around 11:00 PM, and reflectors were not hung until
after 7:30 AM the next morning. This increases the overall level of danger because an unbolted
roof grows more unstable and more likely to fall as time passes. (Tr. 103:2-11, 235:15-19) The
intervening midnight shift exposed at least one additional miner to the hazard. During this period
a pre-shift inspection was conducted and methane measurements were taken three times in each
working face. (Ex. S-5, S-10). To do this, the foreman was required to travel to each of the faces
several times and inspected the entire section for safety hazards once.
In spite of multiple passes across the faces and a pre-shift inspection that specifically
noted that 7 right was “part bolted,” no efforts were made to abate the condition before it was
pointed out by Inspector Carver.8 This is especially egregious in light of the fact that the only
action required to abate the condition would have been to get reflectors, which were available
underground (Tr. 316:13-18), and hang them up. This would have taken only a few minutes. (Tr.
120:14-24)
The missing reflectors were obvious. The pre-shift inspection for the midnight shift noted
that there was unbolted area in 7 right, showing that the hazard itself was observed. The roof
control plan requires that each approach to the unsupported roof be marked with reflectors. Their
absence would be conspicuous to a foreman conducting a pre-shift inspection, whose duty it was
to note and correct hazards for the oncoming shift.
The evening and day shift foremen’s knowledge that the area needed to be bolted is not
mitigating. It is not reasonable to infer awareness of the unbolted roof in the 8 entry based on a
8

It is not mitigating that the men found with the powered-up equipment near the face
were working at a roof bolting machine. A finding that this evidence is mitigating would require
inferring that the men at the machine were preparing to bolt 7 Right, which is not appropriate
under these facts. At the beginning of the day shift, both the 7 face and the 7 Right cross-cut
were unbolted. (Tr. 69:2-15) Reflectors were hung in the 7 face according to the roof control
plan’s requirements, but reflectors were not hung properly in 7 Right. (Ex. S-13) Both of these
areas were in close proximity to the powered-up equipment. Additionally, according to Hess,
these men should have been waiting for him at the power center when Carver encountered them.
(Tr. 274:3-15, 293:20-294:21 Because these men were found before Hess met with his crew and
gave out work assignments, there is nothing in the record to suggest which area the miners
intended to bolt, or that they were even aware that 7 Right needed to be bolted.

36 FMSHRC Page 507

notation that 7 right needed to be bolted. The foremen would not necessarily have known about
the sheared-off bolts just by seeing that notation, even in combination with the mine map
showing that the cut had been punched through. The most that they could have done is exercise
caution, and a miner’s exercise of caution is not mitigating. Eagle Nest, Inc., 14 FMSHRC 1119,
1123 (July 1992). Similarly, the fact that one reflector had been hung is not mitigating. Carver
almost walked under unsupported roof in spite of the presence of the reflector, which belies its
effectiveness as a warning device.
There is no evidence, however, that the operator was on notice that greater efforts were
necessary for compliance with this part of the roof control pan. Although Remington had
received multiple citations for roof control violations in the past 12 months, the roof control plan
is extensive and there is no evidence about the reasons that the previous citations were issued.
This is neither an aggravating nor a mitigating factor.
After considering all of the aggravating and mitigating factors, I find that Remington’s
conduct was highly negligent, and that the Secretary has proved aggravated conduct on the part
of the operator that constitutes an unwarrantable failure to comply with a mandatory standard.
The negligence and unwarrantable failure determinations in Citation No. 8072231 are therefore
affirmed as issued.
Penalty
The factors to be considered in assessing a civil monetary penalty are set out in Section
110(i) of the Act, 30 U.S.C. § 820(i). I am required to consider six factors: (1) the operator’s
history of previous violations, (2) the appropriateness of such penalty to the size of the business
of the operator charged, (3) whether the operator was negligent, (4) the effect on the operator’s
ability to continue in business, (5) the gravity of the violation, and (6) the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after notification of a
violation. Commission case law requires that I explain substantial deviations from the
Secretary’s proposed penalties using these factors. Mize Granite Quarries, 34 FMSHRC 1760,
1763 (Aug. 2012) While “exhaustive findings” are unnecessary, I must discuss how the 110(i)
factors contributed to my penalty assessments. Id. (citing Cantera Green, 22 FMSHRC 616, 622
(May 2000)).
The parties stipulated that Remington demonstrated good faith in the abatement of the
citations at issue in this proceeding, and gravity and negligence have been discussed above. As to
the remaining factors, I find that in the operator’s history of previous violations does not merit an
increase or decrease in penalty, and that the Secretary’s proposed penalty is appropriate to the
size of Remington’s business and will not affect the operator’s ability to continue in business. In
light of all of these factors, I find that the Secretary’s proposed penalty of $25,163.00 is
appropriate for this citation.
Order No. 8072232
Order No. 8072232 was issued under 30 U.S.C. § 814(d) (1). (Ex. S-15) The order was
designated as reasonably likely to cause permanently disabling injury or illness, and the

36 FMSHRC Page 508

negligence was assessed as high. (Ex. S-15) The citation was designated as S&S. (Ex. S-15) The
condition cited states that
The inspection of Bays Mains has revealed several hazardous
conditions not listed on the pre-shift examination conducted for the
day shift this date. No reflectors were observed in #8 entry out-by
an unsupported cross-cut and in the #7 to #8 cross-cut only 1
reflector was provided. The 12470 high-voltage cable was not
provided with a guard where persons regularly travel at the section
power center. The high-voltage sled was not provided with a
ground strap.
This order was issued for an alleged violation of 30 C.F.R. § 75.360(a) (1), which requires that
…a certified person designated by the operator must make a
preshift examination within 3 hours preceding the beginning of
any 8-hour interval during which any person is scheduled to work
or travel underground. No person other than certified examiners
may enter or remain in any underground area unless a preshift
examination has been completed for the established 8-hour
interval. The operator must establish 8-hour intervals of time
subject to the required preshift examinations.
With regard to Citation No. 8072232, the Secretary argues that Remington violated
Section 75.360(a) (1) because the inspection that was performed was inadequate. The operator
failed to correct or adequately advise the oncoming foreman of three hazards on the pre-shift
inspection. The evening shift foreman did not document the areas of unsupported roof in the 8
entry. Although he noted that 7 right was part bolted, he did not hang the reflectors required by
the roof control plan in either area in spite of his notation to the contrary on the pre-shift report.
The evening shift foreman also failed to detect and document that the highest-voltage cable in
the mine was not properly guarded, and that there was no ground strap between the power center
and a high voltage sled. The Secretary also points out that the mere fact that an examination
report was generated does not mean that the foreman actually conducted the required area-byarea inspection. If it was in fact conducted, the inspection was inadequate because the foreman
not only failed to detect and properly record three hazards, but also failed to correct them or
adequately advise the oncoming foreman about them.
Remington contends that the Secretary has not established a violation of the cited
regulation. The operator argues that the regulation can only be violated if the Secretary proves
one of three things: 1) no pre-shift examination occurred, 2) the person who conducted the
examination was not properly certified, or 3) the examination was not conducted within three
hours of the beginning of the shift. According to Remington, no violation occurred because it is
undisputed that a pre-shift examination was completed by a certified person within three hours of
the beginning of the day shift. Moreover, the inspection form was filled out in a way that would
have warned the day shift foreman about the hazard in the 8 entry at the same time he corrected

36 FMSHRC Page 509

the hazard in 7 right. Remington further argues that the law only requires that hazards be
recorded, not remedied, and the foreman noted the unbolted roof, which was the biggest risk to
miners.
A violation of 29 C.F.R. § 75.360(a) can be upheld if the inspector finds hazards that
were present when the pre-shift inspection was conducted, but were not noted on the pre-shift
inspection. Enlow Fork Mining Co., 19 FMSHRC 5, 14-16 (Jan. 1997). When interpreting this
statute, Commission Judges have rejected the argument that there was no examination violation
because a pre-shift examination was conducted. Consolidation Coal Co., 33 FMSHRC 283, 290
(Jan. 2011) (ALJ).
The pre-shift report for the March 24, 2009 day shift indicates that the 7 entry was not
bolted, that 7 right was part bolted, and that the examiner hung reflectors around those hazards.
(Ex. G-5) It also notes that no hazards were observed in the 8 entry, but that reflectors were hung
somewhere in the 1, 2, 3, 4, 5, 5 left, 6, 8 or 9 entries during the pre-shift examination. (Ex. G-5)
It is undisputed that when the inspector arrived at the scene, only one reflector was hung in 7
right. It is also undisputed that no reflectors were hung where 7 right had been punched through
to the 8 entry, and that reflectors should have been hung there because the unsupported area
extended out into the intersection. The degree of danger inherent in this condition has already
been discussed at length. The pre-shift inspection not only failed to note the hazard of unbolted
roof in the 8 entry, but misrepresented the state of the area by indicating no hazards existed in the
8 entry and the area was safe for travel. After evaluating all of the testimony presented, I am not
persuaded that the pre-shift effectively warned Hess of the unbolted roof in the 8 entry.
Two other hazardous conditions were encountered during the MSHA inspection on
March 24, 2009. The MSHA inspector issued citations for both conditions, and Remington did
not contest these violations. (Tr. 262:8-18) The first such violation was a guarding violation. A
segment of the mine’s high-voltage cable was unguarded and hanging below the minimum
required six and one-half foot height, and miners were seen walking under the unguarded cable.
(Ex. S-16) The second violation was a grounding violation: there was no ground strap between
the section power center and the high voltage sled. (Ex. S-17) Both citations were issued as
“unlikely” to result in injury or illness but, in the event that an injury occurred, the injury would
most likely be “fatal.” (Ex. S-16, S-17) The Secretary put on evidence that the guarding violation
could have been seen from 20 feet away, and that both of these violations were obvious and
would have been seen by a pre-shift examiner.
The Secretary has proved that several violations were not noted on the pre-shift
inspection. In light of this finding, Remington’s argument that the law only requires violations to
be recorded, not remedied, is irrelevant. It is undisputed that each of these conditions was present
when the pre-shift examination was conducted. This is sufficient to uphold a violation of 29
C.F.R. § 75.360(a).
Gravity and Significant and Substantial
The Secretary contends that the violation is properly classified as S&S, arguing that the
foreman’s failure to detect these hazards can only be explained by concluding that he did not

36 FMSHRC Page 510

inspect the areas where they were found, in violation of Section 75.360(a) (1). This exposed
miners to discrete safety hazards in the form of electrocution and unsupported roof, and the
balance of probabilities of injury from the guarding violation, the missing ground strap, and the
unbolted roof make it reasonably likely that the hazards that the inadequate examination
contributed to would have resulted in a permanently disabling injury. The Secretary further
argues that increasing the designation from “permanently disabling” to “fatal” would be
appropriate.
Remington argues that the alleged violation would not be reasonably likely to result in an
injury, making an S&S designation inappropriate. The operator argues that none of the three
conditions that caused the inspector to conclude that the pre-shift inspection was inadequate were
likely to cause an injury.
The Mathies criteria set out previously apply here as well. The Secretary has established
a violation of 29 C.F.R. § 75.360(a), which is a mandatory standard. Pre-shift inspections are
meant to prevent hazardous conditions from developing. Enlow Fork, 19 FMSHRC at 15. The
pre-shift examination conducted on the midnight shift had the opposite effect. It not only
inaccurately represented that the unbolted roof in the 7 right cross-cut had been marked with
reflectors, but also failed to alert anyone in the oncoming shift to the existence of three other
dangers: unsupported roof in the 8 entry, an un-guarded, low-hanging high voltage cable, and
another high-voltage cable that was missing a ground strap. In doing so, the inadequate pre-shift
examination contributed to several discrete safety hazards. This satisfies the second Mathies
requirement.
For a violation to be S&S, the hazards must be reasonably likely to result in an accident
or injury. Although the guarding and grounding violations were designated as unlikely to lead to
an injury, the unbolted roof was highly likely to lead to an injury. Because these hazards were
not corrected or even noted, the day shift foreman and crew came onto the section with a false
impression that only two hazards existed on the section, both of which had been marked with
reflectors. As a result, Foreman Hess was exposed to the hazards of unsupported roof and
possible electrocution as he performed his on-shift inspection. Inspectors Carver and Hendrick,
who had reviewed the inadequate pre-shift report before going underground, were also exposed
to the unsupported roof, as were the three day shift miners who roamed the section and powered
up equipment before Hess completed his gas checks. This exposure elevates the likelihood of
injury. I find that it is reasonably likely that taken together, the unguarded cable, the ungrounded
sled, and the unmarked, unsupported roof would contribute to an accident or injury. Roof falls
cause permanently disabling, if not fatal, injuries where miners are in the area, which was more
likely to happen because the unbolted area in the 8 entry was not noted and the reflectors that
miners rely on to avoid hazardous conditions were not in place. Additionally, the high voltage
cables and sled, if contacted, can cause fatal electrocution. I therefore find the hazards
contributed to by the inadequate pre-shift are reasonably likely to result in an accident or injury,
and that serious injuries would result if an accident occurred.
I am required to evaluate whether this violation is significant and substantial in the
context of continued normal mining operations. Remington argues that the cited conditions
would have been corrected before any miners were exposed because the mining crew waits at the

36 FMSHRC Page 511

power section while the foreman checks for hazards during his on-shift inspection. I find this
argument unpersuasive because men were found on the section before the on-shift inspection
was completed. This indicates that on a typical shift, men would not have been waiting at the
power center, but instead would have been moving around the section, exposed to the unknown
and uncorrected hazards. Second, even if the entire day shift crew had been waiting at the power
center, foreman Hess would still have been exposed to the hazards before they were corrected.
Hess, like Carver, walked right up to the last row of bolts before noticing the unbolted area, and
could easily have walked under it. (Tr. 78:18-79:3) In light of this evidence, I find that the
inadequate pre-shift violation is S&S.
Negligence and Unwarrantable Failure
The Secretary argues that the negligence is appropriately designated as “high” because
the hazards involved were physically large and visually obvious, and the failure to detect them
indicates that the foreman was not looking for hazards at all. The Secretary further argues that
the inspection involved high negligence, and that the violation itself amounts to an unwarrantable
failure to comply with a mandatory standard. To justify the unwarrantable failure designation,
the Secretary lists two other aggravating factors in addition to the high negligence. First, the
violation was extensive, exposing the miners to three major hazards. Second, the hazards posed a
high degree of danger, as they were likely to lead to permanently disabling or fatal injuries. For
these reasons, the Secretary argues that the citation should be designated as an unwarrantable
failure to comply with a mandatory standard.
Remington argues that the negligence should not be designated as “high” because the
midnight shift foreman reasonably believed that no one would be exposed to the hazard until the
roof was bolted on the day shift, and he noted the hazards in the order that the foreman on the
next shift would address them. The day shift foreman understood from the inspection notes that 7
right was only partially bolted. Based on these notes, the day shift foreman would have made
bolting 7 right the first task and would have addressed the missing bolts in the 8 entry as part of
the bolting process. Thus, according to Remington, both areas would be bolted before anyone
went into the 8 entry and it was not necessary to note the unbolted area in the 8 entry on the preshift report. Additionally, Remington argues that the violation is not an unwarrantable failure. It
was not obvious because no one could have known that the inspection was incomplete until the
first inspection on the day shift, and Remington argues that the day shift inspection is a
mitigating factor. Remington was not on notice that greater compliance efforts were necessary
because it had received only one prior citation for a violation of Section 75.360(a) (1). Because
there was no evidence that the conditions observed were likely to cause harm, Remington
contends that the violation does not involve the “more than ordinary negligence” required for an
unwarrantable failure designation.
The regulation I use as guidance in my negligence determinations is discussed in my
findings for Citation No. 8072231, as are factors to be considered in determining whether a
violation is an unwarrantable failure to comply with a mandatory standard. To uphold the
Secretary’s assessment of “high” negligence, I must find that Remington “knew or should have
known about the violative condition or practice, and there are no mitigating circumstances.” 30

36 FMSHRC Page 512

C.F.R. § 100.3(d). Upholding the unwarrantable failure designation will require me to find that
the balance of the aggravating and mitigating factors merit a finding of aggravated conduct.
The pre-shift examination notes only the largest and most obvious hazard found by the
inspectors: the portion of the unbolted area in 7 right. (Ex. S-5) Additionally, by marking “Ref.”
as the action taken, Lester’s pre-shift report suggests that the hazard has been abated, when in
fact there was still only one reflector hanging near the unbolted area in 7 right. (Ex. S-5) Lester
knew or should have known about the missing reflector on the 7 entry side of the unbolted area
and, at the very least, noted it in his pre-shift report.
Moreover, because he marked on the pre-shift report that 7 right was unbolted, Lester
either knew or should have known about the hazard in the 8 entry. Seven right was punched
through into the 8 entry. I infer that Lester was aware of this aspect of the mine’s layout because
his on-shift report shows that he traveled across the faces to take gas readings twice before
beginning his pre-shift examination, once at midnight and once at 2:00 AM. (Ex. S-10) Because
the cut had been punched through, there were two ways to approach the unbolted area. The 8
entry is a separate travelway from 7 right. Miners who were approaching the cross-cut from the 8
entry, or simply traveling down it to reach the 8 face, would be exposed to the unbolted roof.
Upon observing an unbolted area in a cross-cut, a pre-shift inspector should have checked both
approaches for hazards. Had Lester done this, he would have noticed the missing bolts in the
intersection of 7 right and the 8 entry.
In addition to the unbolted roof in the 8 entry, two guarding violations were used as a
basis for the inadequate pre-shift inspection violation. Although both of the guarding violations
were assessed as “unlikely” to cause injury, Inspector Carver testified persuasively that the
missing cable guard would have been readily visible if the pre-shift inspector was within 20 feet
of the condition. This indicates that the foreman would have found this hazard if he had been
looking for it. As such, the overlooked guarding citation is another indication that the pre-shift
examination was perfunctory and inadequate.
Remington’s argument that the unbolted roof in 7 right and the 8 entry would be bolted
before anyone entered the area is not persuasive. Although Hess testified that 7 right is the first
area he would have bolted on the day shift, a foreman is required by law to do a gas check at
each of the faces in a working section before mining equipment can even be powered up. (Ex. S14) This would require the foreman to travel down the 8 entry. Additionally, the oncoming shift
foreman would have to conduct his on-shift inspection in order to find the hazards in the first
place, necessitating the foreman’s exposure to the unbolted roof, grounding violation, and
guarding violation before any of the hazards could be corrected.9 Thus, I find that the way that
Lester noted the hazard is not mitigating. Moreover, a Commission ALJ has persuasively
rejected the argument that an employee does not need to record a condition that he believes it
will be taken care of at a later time. Emerald Coal Res. LP, 33 FMSHRC 489, 499 (Feb. 2011)
(ALJ).

9

As previously discussed, I am not persuaded that Hess was aware of the missing bolts
in the 8 entry when he went underground.

36 FMSHRC Page 513

In light of all of the evidence, I find that Lester, and therefore Remington, knew or should
have known about the hazards, and that there are no mitigating circumstances. The level of
negligence involved in this violation is, therefore, appropriately described as “high.”
In addition to the high degree of negligence, I find that several aggravating factors are
present for this violation. The violative condition was extensive in that the failure to conduct an
adequate pre-shift examination affected the entire section and missed three safety violations for
which Remington was later cited. The hazards themselves varied from a two-foot stretch of
unguarded cable to a thirty-foot long unbolted area that extended into the intersection of the 8
entry and 7 right.
This violation posed a high degree of danger. The failure to perform an adequate pre-shift
examination meant that an entire crew of miners was sent into the mines with no warning about
three major hazards that awaited them. All three undetected safety hazards could have caused
serious injuries if they were not detected and corrected, and the unsupported roof was
particularly dangerous. The failure to perform an adequate pre-shift examination was not obvious
to anyone who reviewed the pre-shift paperwork. In this case, however, the fact that the violation
was not obvious cuts in favor of a finding of aggravated conduct. The pre-shift paperwork, upon
which the oncoming foreman and crew rely, completely failed to warn the oncoming shift of
three serious hazards in the mine and misrepresented the state of one hazard that it did identify.
The purpose of a pre-shift inspection is to warn the oncoming shift of hazards waiting for it, but
Lester’s pre-shift inspection report required the day shift foreman to find and correct the hazards
himself.
The level of obviousness of the hazardous conditions themselves varied. Regardless of
their varied size, however, all of the hazards should have been obvious to someone tasked with
inspecting a mine section for hazards. Hendrick testified that the operator would have been able
to see the missing cover if he had come within 20 feet of the guarding violation. The unbolted
area was thirty feet long and extended from the 7 right cross-cut into the 8 entry, creating
dangerous conditions in both 7 right and the 8 entry. The lack of reflectors near the unsupported
roof was obvious and extremely dangerous. Unsupported roof is something that anyone
performing an examination should look for. Failure to note or correct this condition shows a
serious lack of care by the operator, especially in light of the fact that miners rely on the
reflectors as signals that an area is hazardous and should not be entered. Remington took the
problem one step further, however, by falsely noting on the pre-shift inspection that reflectors
had been hung around the hazard as a corrective action. (Ex. S-5) It is undisputed that the
midnight shift foreman did not hang any reflectors during his pre-shift examination. This
misrepresents the state of the hazardous condition, suggesting that it has been properly marked to
warn miners away from the hazard when it in fact has not. The failure to note the sheared-off
bolts in the 8 entry compounds the problem. The misrepresentation of the state of the 8 entry
alone should be enough to justify a finding that the violation underlying Order No. 8072232
amounted to aggravated conduct constituting more than ordinary negligence.
The operator was aware of this violation. The pre-shift inspection was conducted by a
foreman, and the negligent acts of a foreman are imputed to the operator. Additionally, Hess
indicated that during his on-shift inspection, he tended to look more closely in certain areas if he

36 FMSHRC Page 514

noticed certain things on the pre-shift reports. He testified that after reviewing the pre-shift report
stating that 7 right was unbolted, in combination with a review of the mine map showing that 7
right had been punched through into the 8 entry, he knew that he should look carefully at that
intersection to check for hazards. Hess’s use of common sense does not mitigate Lester’s
negligence in failing to so much as note the full extent of the unbolted area on the pre-shift
report, however. If anything, it is evidence that the operator knew that greater efforts were
necessary for compliance with the pre-shift requirement. Although Remington had only been
cited for a violation of this standard once before, Hess’s testimony suggested that Remington had
some idea that Lester’s pre-shift reports were not completely reliable.
After the citation was issued, Remington conducted an investigation into the violation
and determined that the foreman was not doing a good job on his pre-shift inspections. When
considering the operator’s abatement efforts for purposes of an unwarrantable failure analysis,
Commission case law requires me to focus on efforts made before the citation or order was
issued. Io Coal, 31 FMSHRC at1356. There is no evidence of any abatement efforts prior to the
violation’s discovery by the inspector.
In terms of being an aggravating or mitigating factor, I find that the length of time that
the violative condition existed is not relevant to this violation.
After weighing all of the aggravating and mitigating factors, I find that this violation
constitutes an unwarrantable failure to comply with a mandatory standard. The foreman’s failure
to note several obvious violations suggests that he was not actually looking for hazards during
his pre-shift inspection, which defeats the purpose performing a pre-shift inspection at all. The
false information in the pre-shift report, which suggests that one of the two safety hazards that
the foreman actually identified had been correctly marked with reflectors, actively misrepresents
the status of the section. Taken together, these factors and tip the scales toward a finding of
unwarrantable failure.
Penalty
The six penalty factors listed in the penalty discussion for Citation No. 8072231, above,
apply to this order as well. As previously stated, the parties stipulated that Remington
demonstrated good faith in the abatement of the citations at issue in this proceeding, and gravity
and negligence have been discussed above in the S&S, Negligence, and Unwarrantable Failure
analysis for this order. I find that in the operator’s history of previous violations does not merit
an increase or decrease in penalty, and that the Secretary’s proposed penalty is appropriate to the
size of Remington’s business and will not affect Remington’s ability to continue in business. In
light of all of these factors, I find that the Secretary’s proposed penalty of $5,645.00 is an
appropriate penalty amount for this order.
V. Order
It is ORDERED that Citation No. 8072231 is AFFIRMED as issued.
It is further ORDERED that Order No. 8072232 is AFFIRMED as issued.

36 FMSHRC Page 515

It is further ORDERED that the Respondent pay a total penalty of $30,808.00 within 30
days of the date of this decision.10

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

Distribution:
Noah Anstraus, Esq., U.S. Department of Labor, Office of the Solicitor, The Curtis Center, Suite
630E, 170 S. Independence Mall West, Philadelphia, PA 19106
Jonathan R. Ellis, Esq., Steptoe & Johnson PLLC, Eighth Floor, Chase Tower, P.O. Box 1588,
Charleston, West Virginia 25326-1588
/ms

10

Payment may 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 516

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

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
US SILICA COMPANY,
Respondent.

February 25,2014
CIVIL PENALTY PROCEEDING
:
:
Docket No. WEVA 2013-425
:
A.C. No. 46-02805-309429
:
:
Mine: Berkeley Plant
:
:
:
:

ORDER GRANTING U S SILICA COMPANY’S MOTION
FOR
SUMMARY DECISION
In this civil penalty proceeding arising under sections 104 and 110(i) of the Federal Mine
Safety and Health Act of 1977, as amended (30 U.S.C. §§814, 820(I)), the Secretary of Labor
(“Secretary”) on behalf of his Mine Safety and Health Administration (“MSHA”) petitions for
the assessment of a civil penalty of $100 for an alleged violation of 30 C.F.R. §56.12018, a
mandatory safety standard for the nation’s metal and nonmetal mines that requires the
identification of certain power switches.1 The Secretary alleges that on October 11, 2012, at the
Berkley Plant of US Silica Company2 (“US Silica” or “the company”), a breaker box in the
plant’s paint trailer “was not labeled to show what circuits they controlled.”3 Citation No.
8705547. The inspector found that the cited condition was unlikely to result in injuries that
could reasonably be expected to cause lost workdays or restricted duty and that the alleged
violation was due to the company’s moderate negligence. Id. US Silica answered by denying it
violated the standard and asserting that Citation No. 8705547 should be vacated.
1

The standard states:
Principal power switches shall be labeled to
show which units they control, unless
identification can be made readily by location.
30 C.F.R. § 56.12018.

2

At the plant the company mines high quality sand that is used in manufacturing glass.
The sand also is used in the production of natural gas through hydraulic fracturing. US Silica,
Locations, http://www.ussilica.com/locations/berkeley-springs-wv (last visited Feb. 24, 2014).
3

Although the citation is awkwardly worded, it is clear from the pleadings that the
inspector who cited US Silica used “they” to refer to the box’s two unlabeled circuit breakers.

36 FMSHRC Page 517

The Commission’s Chief Administrative Law Judge assigned the matter to the Court, and
the Court ordered the parties to confer regarding possible settlement. When it became clear that
a settlement could not be reached, the Secretary’s counsel, with the agreement of the company’s
counsel, suggested to the Court that the matter be resolved through cross motions for summary
decision.4 The Court agreed. Counsels submitted their motions and, at the Court’s request,
provided the Court with additional information. Based on the motions and the additional
information, the Court enters the following decision granting US Silica’s motion and denying the
Secretary’s motion.
SUMMARY DECISION IN GENERAL
Pursuant to the Commission’s rule, a party moving for summary decision is entitled to
judgement in its favor if, based upon the record before the court, (1) there is no genuine issue as
to any material fact; and (2) the moving party is entitled to a summary decision as a matter of
law. 29 C.F.R. § 2700.67.
MATERIAL FACTS
Citation No. 8705547 states in part:
The Square D breaker box was not labeled to
show what circuits they controlled. This was
located in the paint trailer and created [a]
shock hazard to employees in the event of
an emergency and [the] circuit[s] could not
be identified.
The material facts are contained in the parties’ stipulations, the attachments to the
parties’ briefs and the additional information the parties supplied the Court. According to the
stipulations, the cited Square D breaker box was located in an 8 feet wide by 36 feet long by 8
feet high paint trailer at the plant.5 Stip. 4. The breaker box controlled: (1) the overhead lighting
for the main trailer; (2) an electrical power receptacle located below the breaker box; and (3) the
overhead lighting for the paint storage area. Id. 5, Addit’l Stip. 2. The main electrical disconnect

4

E-mail from Courtney Przybylski, counsel for the Secretary, to Dhruba Mukherjee, law
clerk to the Court (Aug. 28, 2013, 3:45 EST) (in official case file).
5

The parties agreed that the plant is a “mine” as defined by section 3(h) of the Mine Act,
30 USC. § 802(h), and that the products of the plant affect commerce. They further agreed that
mine is subject to the Act. Stips. 1, 2.

36 FMSHRC Page 518

controlling the breaker box was located directly below the box.6 Stip. 6. The main electrical
disconnect was clearly labeled in compliance with 30 C.F.R. §56.12018. Id. 7. Exhibit A,
attached to the stipulations, is an “accurate photograph showing the breaker box and the
disconnects as they appeared at the time of the alleged violation.” Id. 8. The switch on the left
side of the breaker box controlled the main trailer overhead lighting. Addit’l Stip. 1. The lights
were connected to the breaker box by wiring entering the box toward the left side of the top of
the box. Id.). The switch on the right side of the breaker box controlled the electrical receptacle
and the paint storage room lighting.7 Id. 2. The electrical receptacle was connected to the
breaker box by electrical wiring entering the box toward the right side of the bottom of the box.
Id. The paint storage room lighting was connected to the breaker box by a conduit entering the
box toward the right side of the box. Id. 2. Finally, the parties agreed as to the words that were
written on the breaker box to abate the alleged violation. Id. 3-6.
THE PARTIES’ ARGUMENTS
The parties maintain that primarily the question before the Court is whether the Square D
breaker box was a “principal power switch” within the meaning of section 56.12018. Counsel
for US Silica argues for a “plain meaning” interpretation of the phrase “principal power switch”
that excludes the box. Resp.’s Mot. For Sum Dec. 3-12. Counsel for the Secretary argues for a
broader definition that includes the box. Sec’s Op. to Resp’s Mot. For Sum Dec. And Cross Mot.
For Sum Dec. 2-12. As the parties are aware, questions regarding the meaning of the phrase
“principal power switch” and whether particular cited equipment comes within the meaning have
repeatedly been brought to the Commission’s judges. While the judges have decided whether
certain equipment is covered by the standard based on the facts of the cases before them, a
definitive meaning of the phrase “principal power switch” has yet to emerge. See, e.g., Beverly
Materials, LLC, 35 FMSHRC 88, 95-97 (Jan. 2013) (Judge Moran); Cemex Construction
Materials of Florida, LLC, 34 FMSHRC 170, 174 (Jan. 2012) (Judge Zielinski); Omya Arizona,
A Division of Omya Inc., 33 FMSHRC 2738, 2739-40 (Nov. 2011) (Judge Miller); Blue
Mountain Production Co., 32 FMSHRC 1464, 1473-74 (Oct. 2010) (Judge Miller); Tide Creek
Rock, Inc. 19 FMSHRC 390, 399 (March 1996) (Judge Manning); Walker Stone Co., Inc., 12
FMSHRC 256,264 (Feb. 1990) (Judge Fauver); FMC Corp., 6 FMSHRC 1294, 1299 (May
1984) (Judge Vail) (decided under identically worded standard, 30 C.F.R. §57.12-18)8. This
6

Although not defined by the parties, the Court assumes that the main electrical
disconnect is, as its name implies, the electrical device used to connect and disconnect all
electrical circuits in the trailer.
7

The switches are best viewed in Exhibits A, B and C.

8

30 C.F.R. Part 57 contains mandatory health and safety standards for the nation’s
underground metal and nonmetal mines. 30 C.F.R. 56 contains mandatory health and safety
standards for surface metal and nonmetal mines. 30 C.F.R. §57.12-18 and 30 C.F.R. §56.12-18
were worded the same as current standard 30 C.F.R. § 56.12018. When section 57.12-18 and
(continued...)

36 FMSHRC Page 519

unbroken string of decisions without an agreed upon definition of the phrase will continue here,
because the Court concludes that based on the stipulations and the information provided, the
cited switches can be “readily identified by location”(30 C.F.R. §56.12018) and therefore come
within the exception to the labeling requirement.
ANALYSIS
As previously noted, section 56.12018 provides, “Principal power switches shall be
labeled to show which units they control, unless identification can be made readily by location.”
The citation states, and US Silica agrees, that the subject breaker box was not labeled to show
what the box’s switches controlled. See Resp.’s Mot. 2 (describing attached Exh. B). While the
parties argue at length about the applicability of the standard to the breaker box, the Court
concludes it need not resolve the arguments because assuming the box is a “principal power
switch,” the box’s switches can be “identified readily by location” and therefore the box is
exempt from the standard’s requirements.
The breaker box was located in the paint trailer as described in the stipulations. Jnt. Stip.
4. The box controlled the power supply to only three things: an overhead light for the trailer, an
immediately adjacent electrical power receptacle and an overhead light for the paint storage area
. Stip. 5, Addit’l Stips. 1, 2. It is clear from looking at the photographic exhibits submitted by
the parties that the breaker box was mounted on a board that was attached to a wall of the trailer.
The two switches in the box are aligned parallel to one another, slightly below the center of the
box. Exhs. A, C, D. Visibly running from the box above the location of the left switch (when
facing the box) is the wiring going to the overhead light for the trailer. Id.; Addit’l Stps. 1
Visibly running from the box below and slightly to the right of the right switch is the wiring
going to the electrical receptacle that is in turn affixed to the board a short way below the
breaker box. Exhs. A, C, D; Addit’l Stips. 2. Visibly running from the box to the upper right and
above the right switch is a conduit going to the overhead light for the trailer’s paint storage area.
Id. There is nothing “tricky” about the location of the wiring and the conduit. A person
attempting to turn off the circuits to the lights or the receptacle or both would need to face the
box and the board on which it is mounted. The alignment of each switch with its corresponding
wiring and, in the case of the right switch, also with its corresponding conduit, would logically
signaled to the most elementary observer, let alone to a knowledgeable miner, that the left switch
controlled the overhead trailer light and the right switch controlled the receptacle and the paint
storage area lighting. Only a blind person might be confused. The Court therefore finds that

8

(...continued)
section 56.12-18 were renumbered in 1985, section 57.12-18 became section 57.12018, and
section 56-12-18 became section 56.12018.

36 FMSHRC Page 520

identification of the switches “can be made readily by location” (30 C.F.R. §56.12018) and that
the standard does not apply to the box and the switches.9
This is a simple way to decide the case, but it is all that is necessary, and it is in line with
the fact-based manner in which virtually all cases involving section 56.12018 have been
resolved. It also is in accord with the Court’s belief that, tempting as it is to display the Court’s
undoubted legal acumen, the Court should decide only issues that are absolutely necessary to
reach a final outcome.
For the foregoing reasons, US Silica’s motion for summary decision is GRANTED and
the Secretary’s cross motion for summary decision is DENIED. Citation No. 8705547 IS
VACATED.

/s/ David Barbour
David Barbour
Administrative Law Judge
Distribution: (1st Class U.S. Mail)
Courtney Przybylski, Esq., U.S. Department of Labor, Office of the Solicitor, MSHA Backlog,
1999 Broadway, Suite 800, Denver, CO 80202-5708
Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1909 K Street, NW,
Suite 1000, Washington, DC 20006

9

The Court notes that its approach to resolving the case is similar to that adopted by
Commission Administrative Law Judge August Cetti in Pittsburg & Midway Coal Co., 14
FMSHRC 346, 351-352 (Feb. 1992). The Pittsburg & Midway case concerned an alleged
violation of 30 C.F.R. 77.904, a standard requiring that at surface coal mines and surface areas of
underground coal mines, circuit breakers “be labeled to show which circuits they control, unless
identification can be made readily by location.” Judge Cetti, based on the factual record before
him, found that the subject circuit “could be readily identified” by looking at the cited switch and
therefore that “no violation [was] shown by the evidence.” 14 FMSHRC at 352.

36 FMSHRC Page 521

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

February 26, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
TAFT PRODUCTION COMPANY,
Respondent.

:
:
:
:
:
:
:
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CIVIL PENALTY PROCEEDING
Docket No. WEST 2012-1484-M
A.C. No. 04-02964-299562

Mine: Taft Production Company & Mines

DECISION
Appearances: Pamela F. Mucklow, U.S. Department of Labor, Office of the Solicitor, Denver,
Colorado, on behalf of the Secretary of Labor
Larry R. Evans, Oil Dri Corporation of America, Ochlocknee, Georgia, on behalf
of Taft Production Company
Before: Judge James G. Gilbert
This case is before me upon a Petition for Assessment of a Civil Penalty filed by the
Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d). The petition alleges that Taft Production Company (“Taft”) is liable
for four violations of the Secretary’s safety and health standards for surface metal and nonmetal
mines, and proposes the imposition of penalties in the total amount of $3,321.00. A hearing was
held in Los Angeles, California and both parties filed post hearing briefs.1
I.

Stipulations of Fact
1. Taft is engaged in surface metal/nonmetal mining at the Taft Production
Company Mine in Kern County, California.
2. Taft’s mining operations affect interstate commerce.

1

Prior to the hearing, Respondent filed a Motion for Summary Decision and the Secretary
filed a response in opposition. I declined to rule on the pending motions at that time, and took
the motions under advisement. The summary decision briefs are referred to in this opinion as
Resp. Br. and Sec’y Br. Tr. 308. Each party was permitted to file a supplemental post-trial brief
with additional arguments (referred to in this opinion as R. Resp. Br. and Sec’y Resp. Br.).

36 FMSHRC Page 522

3. Taft is an operator as defined in section 3(d) of the Act.
4. Operations at the Taft Production Company mine are subject to the
jurisdiction of the Mine Act.
5. The Administrative Law Judge has jurisdiction in this matter pursuant to
section 105 of the Act.
6. The individual whose signature appears in block 22 of the citations at
issue in this proceeding was acting in his official capacity as authorized
representative of the Secretary of Labor when the citations were issued.
7. True copies of the citations at issue in this proceeding were served on Taft
as required by the Act.
8. The total proposed penalties for the citations in this proceeding will not
affect Taft’s ability to continue in business.
9. The Secretary stipulates that Taft exercised good faith in terminating the
citations in a timely manner.
Transcript (Tr.) 6-7.
II.

Discussion

Taft Production Company Mine is located in Kern County, California and is a producer
of cat litter. Tr. 16; Stipulation (Stip.) No. 1. MSHA Inspector David Cheney conducted a
regular inspection of the mine from July 30, 2012, through August 2, 2012.2 Tr. 16-17. He was
accompanied by Nick Kingston, the process manager at Taft, during the inspection.3 Tr. 34.
Cheney wrote four citations over the course of his inspection.
1. Citation No. 8689617
Citation No. 8689617 was issued by Cheney on July 31, 2012, at 4:40 a.m., pursuant to
section 104(a) of the Act. Government’s Exhibit No. 1 (Ex. G-1). It alleges a violation of 30
C.F.R. § 56.20003(a) which states that, “[a]t all mining operations – (a) Workplaces,
passageways, storerooms, and service rooms shall be kept clean and orderly.” The violation was
described in the “Condition or Practice” section as follows:
2

David Cheney has been an MSHA inspector for 11 years. Tr. 13. Prior to joining
MSHA, Cheney was a miner at Riverside Cement, an open pit mine, for 23 years. Tr. 14.
3

Nick Kingston has been employed by Taft for 7 years. Tr. 193. He has held positions
such as laborer, line leader, and order processor during that time and is currently the team leader
of processing. Tr. 193.

36 FMSHRC Page 523

At the top of the 102 silo was a spillage of material in front of the cat walked
[sic]. This spillage consists of ½ inch rocks. This spillage was approximately 3
inches deep. Miners were exposed to a slip, trip, fall hazard. Miners are in this
area once a month.
Standard 56.20003(a) was cited 3 times in two years at mine 04-02964 (3 to the
operator, 0 to a contractor).
Ex. G-1.
Cheney determined that the violation was unlikely to result in a lost workdays or
restricted duty injury, that one person was affected, and that the level of negligence was
moderate. A civil penalty in the amount of $176.00 was assessed for the violation.
A. Relevant Testimony
(1) Inspector David Cheney
Cheney testified that there was spillage on top of the 102 silo in front of the walkway.
Tr. 19; Ex. G-2. A picture of the area taken by Cheney depicts soft powder with small granules
on a flat surface, the roof of the silo, which leads up to a grated walkway.4 Tr. 20, 30, 136. He
estimated that the powder was spread across an area of 10 feet by 10 feet and approximately 2 to
3 inches deep. Tr. 20, 28, 29, 138. A photograph taken after termination of the citation depicts a
smooth, clean silo surface devoid of powder and granules. Ex. G-3.
Cheney considered the conditions to be a violation of the cited standard because miners
walked through the area, making it a work area or passageway, and it was not clean and orderly.
Tr. 33. He was unsure whether there was a dust collector at the top of the silo or other material
such as screws, but what he did see indicated that miners would need to access the area for
maintenance purposes. Tr. 33-34.
Cheney determined that the violation was unlikely to result in an injury to one miner
because a miner would only visit the area rarely to do maintenance. Tr. 40, 48; Ex. G-1. He
stated that Kingston estimated that maintenance was done once a month. Tr. 41. He also
asserted that the cited standard was intended to prevent slip, trip, and fall hazards that could lead
to lost workdays or restricted duty injuries, such as a twisted ankle, bumps, bruises, or cuts.5 Tr.
4

While the pictures introduced during the hearing depict dates on which the citations
were not issued, Cheney testified that the batteries went dead on his camera and when the
batteries were replaced, he did not modify the date. Tr. 22-23. He asserted that the photographs
were actually taken on the dates that the citations were issued. Tr. 23-24. I find Cheney’s
explanation to be credible.
5

Cheney stated that he slipped on the material after stepping onto it. Tr. 139.

36 FMSHRC Page 524

36, 38, 45-46. These are injuries that have reportedly occurred from slip, trip, and fall hazards in
other mines and happen “all the time.” Tr. 46-47.
Cheney marked the level of negligence as moderate because the operator either should
have known or did know of the violative conditions but there were mitigating circumstances.
Ex. G-1; Tr. 48. The Secretary argued that while Kingston stated that he was not in and has not
held a management position, he was nonetheless an agent of Taft. Tr. 193, 269-70.
(2) Nick Kingston
Kingston maintained that the spillage on top of the 102 silo was between a ½ inch and 2
inches thick. Tr. 194. He was not very familiar with all the uses of the silo, but stated that it was
part of section 1 of the plant and that the spillage usually happens from an overload of elevator
101. Tr. 228, 250. The elevator is loaded with product at the base, where it is transported
upward, and automatically fed down the pipes that lead to the silo. Tr. 252.
Access to the top of the 102 silo is gained by climbing up the 101 silo and walking across
a catwalk. Tr. 248; Ex. G-4, 5. Kingston explained three reasons why a miner would access the
top of the 102 silo. He testified that the one miner who is on-shift would not go to the top,
except to take measurements of the silo tank once a month. Tr. 194-95, 229. Kingston also
stated that maintenance may access the top of the silo to grease if section 1 was running, noting
that this could happen as often as once a month or as little as every 6 months. Tr. 195-96, 242.
The last reason is to change the gates. Tr. 252-53. Gates are changed when Taft wants to bypass
the silo and divert the product to a different pipe that leads directly to a conveyor. Tr. 253. In
order to change the gates, a miner must climb the stairs located at the top of the 102 silo that lead
to the top of the elevator. Tr. 247-48.
Because the top of the 102 silo is seldom accessed, Kingston asserted that he was not
aware of the spill until traveling there with Cheney and that the spill had not been reported by
any miner. Tr. 194, 227.
B. Respondent’s Legal Arguments
Respondent argues that it did not violate the above standard because the area where the
102 silo was located should not be considered a mining operation, the area was not a passageway
or a walkway, there was no fair notice of the meaning of clean and orderly, and the citations
were duplicative.6

6

Respondent makes the same argument for the three citations discussed below as well.
The issues of jurisdiction (Taft being a mining operation), fair notice, and duplication will be
applicable to each citation in this proceeding. The issue of whether the area where the spill
occurred was a workplace and/or passageway will be addressed in each individual citation
discussion.

36 FMSHRC Page 525

(1) Jurisdiction
Respondent argues that the cited areas were located in a milling operation, not a mining
operation as the safety standard requires. Resp. Br. at 11-12. It also asserts that there is a
marked difference between a mine operation and a mining operation. Id. at 12. However,
Respondent stipulated that it is engaged in surface metal/nonmetal mining at the Taft Production
Company Mine, that its “mining operations” affect interstate commerce, and that its operations
are subject to the jurisdiction of the Mine Act. Stips. 1, 2, 4; Tr. 6. In addition, section 3(h)(1)
of the Act states that a coal or other mine means “. . . structures, facilities, equipment, machines,
tools, or other property… or used in, or to be used in, the milling of such minerals….” 30 U.S.C.
§ 3(h)(1).
Respondent stipulated to the fact that it is a mining operation engaged in surface
metal/nonmetal mining. Its operations also fall under the purview of the Act as defined in
section 3(h)(1). Accordingly, Respondent’s argument that the Secretary lacked jurisdiction to
issue the citation is rejected.
(2) Definition of Workplace and Passageway
Respondent argues that the cited areas were not workplaces or passageways. Resp. Br. at
3-5. When defining terms, the Commission has first looked at the language of the definition.
National Cement Co., 27 FMSHRC 721, 726 (Nov. 2005). Workplace and passageway are not
defined in the Act or in the definitions relating to section 56. In this case, the Commission then
looks to the commonly understood definition of the term. Id. at 726; Jim Walter Res., Inc., 28
FMSHRC 983, 987 (Dec. 2006); Drillex, Inc., 16 FMSHRC 2391, 2395 (Dec. 1994) (stating that
“[i]n general, absent express definitions, statutory terms should be defined according to their
commonly understood definitions.”). However, the ordinary meaning of the words used in a
statute cannot be applied to produce absurd results. Jim Walter Res., Inc., 28 FMSHRC at 987;
National Cement, 27 FMSHRC at 728.
Merriam Webster’s Online Dictionary defines workplace as “a place where work is
done” and defines passageway as “a way that allows passage.” Merriam Webster’s Online
Dictionary, http://www.merriam-webster.com/dictionary/ (last accessed Jan. 26, 2014). Passage
is defined as “way of exit or entrance: a road, path, channel, or course by which something
passes.” Id. These definitions do not produce absurd results if applied in the context of section
56.20003(a).
In particular to Citation No. 8689617, Respondent argues that the top of the 102 silo is
not a workplace or passageway because the clay was behind a pipe and underneath a stairway.
Resp. Br. at 3. However, Government Exhibits 2 and 3 clearly show that the spillage was not
directly behind a pipe, but spread out and up against the catwalk. Miners would access the 102
silo to take measurements of the tank and to grease if the section was running. Tr. 194-96, 229,
242.
In addition, in order to change the gates, a miner has to walk across the top of the 102 silo
to reach the ladder that leads to the top of the elevator where they are located. Tr. 247-48; Ex.
G-4. Not only was work done on the top of the 102 silo, but miners were required to walk across

36 FMSHRC Page 526

it as a means to reach the top of the elevator. Accordingly, I find that the 102 silo was both a
workplace and a passageway.7
(3) Fair Notice
Respondent argues that MSHA failed to provide fair notice of its interpretation of the
standard’s requirements, particularly “clean and orderly.” Resp. Br. at 2. It has stated that the
Secretary’s interpretation is essentially that “[e]very spot in the entire mine must always be
spotless or you could be cited for each spot” and that it is “absurdly broad.”
“[D]ue process considerations preclude the adoption of an agency’s interpretation which
‘fails to give fair warning of the conduct it prohibits or requires.’” LaFarge North America, 35
FMSHRC _, slip op. at 4, No. CENT 2010-4-M (Dec. 11, 2013); Gates & Fox Co. v. OSHRC,
790 F.2d 154, 156 (D.C. Cir. 1986). “The Commission’s test for notice under the Mine Act is
‘whether a reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific prohibition or requirement of the
standard.’” Wolf Run Mining Co., 32 FMSHRC 1669, 1682 (Dec. 2010). A number of factors
are relevant to this determination, including “the text of a regulation, its placement in the overall
regulatory scheme, its regulatory history, the consistency of the agency’s enforcement, and
whether MSHA has published notices informing the regulated community with ascertainable
certainty of its interpretation of the standard in question.” Id.
The text of the regulation is clear: workplaces and passageways shall be kept clean and
orderly. Respondent conceded that the language of the standard is not ambiguous. Resp. Br. at
1. The regulation is in place to prevent hazards, such as slipping, tripping, and falling that could
lead to lost workdays or restricted duty injuries as Cheney stated above. There is no basis for
Respondent’s assertion that the Secretary’s interpretation is that the areas must be spotless. A
reasonably prudent person familiar with the mining industry would recognize that the
accumulation of powder from several inches to up to 24 inches where miners work or walk by is
prohibited under the standard. Ex. G-6, 11, 16. I find that Respondent had notice of the
standard’s requirements.

7

This determination is consistent with several other ALJ findings. U.S. Silica Co., 32
FMSHRC 1699, 1706-08 (Nov. 2010) (ALJ) (affirming violations of section 56.20003 where
there were accumulations on top of a bin that miners would access once a month to perform
maintenance. There was an access ladder leading to the top of the bin, a catwalk leading to other
bins, and footprints.); USS, a Division of USX Corp., 13 FMSHRC 145, 153 (Jan. 1991) (ALJ)
(affirming a violation of section 56.20003 and stating that “the standard applies to all workplaces
and passageways, even though no work was being performed at the time of the cited violations,
and even though the passageways were not designated or regularly used as such.”); BrubakerMann, Inc., 8 FMSHRC 1482, 1483 (Sept. 1986) (ALJ) (affirming a violation of section
56.20003 where there was a build-up of powdery fines that created a slip, trip, and fall hazard on
a walkway that would only be accessed by a miner to perform maintenance.).

36 FMSHRC Page 527

(4) Duplication
Respondent asserts that three of the four citations should be vacated because there should
only be one citation for housekeeping per mine. R. Resp. Br. at 3. It cites MSHA’s Program
Policy Manual that states “where there are multiple violations of the same standard which are
observed in the course of an inspection and which are all related to the same piece of equipment
or to the same area of the mine, such multiple violations should be treated as one violation and
one citation should be issued.” I MSHA, U.S. Dep’t of Labor, Program Policy Manual 21
(2003).
“The Commission has held that citations are not duplicative so long as the standards
involved impose separate and distinct duties upon an operator. Western Fuels-Utah, Inc., 19
FMSHRC 994, 1003-05 (June 1997); Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378
(Mar. 1993).” Cumberland Coal Res., LP, 28 FMSHRC 545, 553 (Aug. 2006) aff’d 515 F.3d 247
(3d Cir. 2008). Additionally, in Western Fuels, the Commission focused on whether MSHA
cited the operator on the basis of more than one specific act or omission. 19 FMSHRC at 1004
n.12.
In this case, the operator was cited for housekeeping violations because it failed to clean
up accumulations of powder in four distinct areas of the mine that constituted a workplace and/or
passageway: the top of the 102 silo; the base of elevator 101; underneath auger 6; and, the top of
the fines tank. These four separate failures imposed four distinct duties on the operator to clean
up the powder in each of these four locations. I find that the citations issued were not
duplicative.
C. Findings and Conclusions
Taft failed to keep the top of the 102 silo, a workplace and passageway, clean and orderly
by allowing material to accumulate up to 2 to 3 inches across a 10 foot by 10 foot area. I credit
Cheney’s testimony regarding the slipperiness of the powder and the slip, trip, and fall hazard
that it created. This hazard could have reasonably caused twisted ankles, bruises, and cuts,
resulting in lost workdays or restricted duty. In addition, I agree with Cheney’s determination
that one miner would be unlikely to suffer an injury because one miner is usually on-shift in the
area and would access the top of the 102 silo once a month. Accordingly, I find that Taft
violated section 56.20003(a).
As to the level of negligence, the Secretary attempted to establish at hearing that
Kingston was an agent of Taft and his negligence was imputable to Respondent. Tr. 268.
Pursuant to section 3(e) under the Act, an agent is defined as “any person charged with
responsibility for the operation of all or part of a coal or other mine or the supervision of the
miners in a coal or other mine.” 30 U.S.C. § 802(e). The Commission has developed a multifactor test to determine if a miner is also an agent which includes looking at the definition of
agent under the Act, common law principles of agency, and distinctions between supervisors and
employees under the National Labor Relations Act. Martin Marietta Aggregates, 22 FMSHRC
633, 637, 638 (May 2000). The Commission focuses on the miner’s job functions, not title when
making its determination. Id. at 637.

36 FMSHRC Page 528

Kingston was an hourly employee who supervised mill 1, mill 2, and had four people on
his team. Tr. 265, 282. He provided his team members with tasks to complete and he was their
immediate supervisor. Tr. 266-67. If one of Kingston’s team members was leaving for the day,
the member would notify Kingston. Tr. 268. However, Kingston was not involved in the
process of hiring or selecting his team, he took issues with team members to his boss, and he had
never disciplined one of his members. Tr. 266-68.
These facts closely resemble a case previously decided by the Commission, affirming the
judge’s determination that the miner was not an agent where his job functions did not include
hiring and firing employees, being given instructions for disciplining employees, and
responsibility for an employee’s performance and duties. REB Enterprises, 20 FMSHRC 203,
211-212 (May 1998). No evidence was presented that Kingston was responsible for the safety of
his team or for ensuring compliance with mandatory safety standards.8 While Kingston did have
the authority to task members of his team with assignments and supervises part of the plant, the
aspects that are not part of his job weigh more heavily toward a rank and file miner. Therefore, I
find that Kingston was not an agent of Taft.
Moderate negligence is appropriate when “[t]he operator knew or should have known of
the condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3. Low
negligence requires considerable mitigating circumstances. Id. Taft should have known about
the unsafe conditions. I find the fact that the top of the 102 silo was accessed as little as once a
month to be a mitigating factor. Therefore, I find that Cheney properly determined the level of
negligence to be moderate.
2. Citation No. 8689619
Citation No. 8689619 was issued by Cheney on July 31, 2012, at 5:00 a.m., pursuant to
section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 56.20003(a). The violation was
described in the “Condition or Practice” section as follows:
Over at the bottom of the elevator 101 at Mill 2 was a spillage of material. This
spillage was approximately 6 inches deep. This was located at the west side of
the plant. Miners are in the area only as needed.
Standard 56.20003(a) was cited 4 times in two years at mine 04-02964 (4 to the
operator, 0 to a contractor).
Ex. G-6.
Cheney determined that the violation was unlikely to result in a lost workdays or
restricted duty injury, that one person was affected, and that the level of negligence was
moderate. A civil penalty in the amount of $176.00 was assessed for the violation.

8

He did check workplace exam records, but somewhat infrequently, and there was no
direct testimony that he was in charge of safety and compliance measures. Tr. 283.

36 FMSHRC Page 529

A. Relevant Testimony
(1) Inspector David Cheney
Cheney testified that there was spillage of material at the bottom of elevator 101. Tr. 52.
A photograph depicts the spillage, which looks like powder piled up along a white structure
representing the outside of the elevator. Ex. G-7; Tr. 54-55. The material was up to 6 inches
deep in an area approximately 12 feet by 12 feet. Tr. 55, 60, 64. In the immediate vicinity of the
material were a conveyor belt, an elevator, and a ladder. Tr. 65. Cheney asserted that the area
was a workplace because a miner would have had to at least do maintenance on the elevator and
conveyor belt. Tr. 65.
Cheney determined that the likelihood of injury was unlikely because he was told by
Kingston that miners only go to the area once a month to grease bearings on the conveyor belt.
Tr. 70, 74, 78; Ex. G-23. He posited that the same hazards as the previous citation, slip, trip, and
fall, were present and that the same injuries could have occurred, resulting in lost workdays or
restricted duty. Tr. 78.
Cheney marked the level of negligence as moderate because the cited standard had been
cited four times in the previous two years and Respondent should have known about the spillage
through conducting a workplace examination. Tr. 79, 81; Ex. G-6. He also stated that when
Kingston was asked why the spill was not cleaned up, Kingston remarked that “he was
shorthanded and that it just happened.” Tr. 66-67, 82.
(2) Nick Kingston
Kingston maintained that the spillage came from the elevator overloading, and that when
the top of the 102 silo was cleaned off, the material fell in front of elevator 101, resulting in the
citation. Tr. 200, 202, 273. He explained that to clean up the top of the 102 silo, the material
was pushed off the side with a broom and barricades were set up at the ground level. Tr. 197.
Kingston asserted that it was not possible to bring cleaning equipment to the top of the silo, so it
is pushed off the side and picked up at the ground level with a scraper. Tr. 261. However,
Kingston agreed that the amount of material at the base of elevator 101 looked like more material
than what was pictured at the top of the 102 silo. Tr. 264; Ex. G-2, 7.
Kingston testified that the material consisted of a “fine-grade powder and a little bit of
our course product.” Tr. 204. He did not think that injury would have resulted from walking
through the spillage because it was not deep or on an incline. Tr. 204-05. However, he did agree
that a miner could trip if he did not know the area or if there was a ledge of powder. Tr. 206.
Kingston stated that he walked through the area once a month to check safety equipment such as
fire extinguishers. Tr. 206, 275. A miner would not be in the area to operate the conveyor belt
because that was done from a block house located 50 to 60 feet from the 102 silo. Tr. 202-04.
He posited that the tail pulley and conveyor belt would need to be checked but was

36 FMSHRC Page 530

unsure how often. Tr. 278. Kingston also mentioned that a miner would do maintenance on the
bag house once every 3 months and would need to use the ladder at the base of the elevator. Tr.
276.
B. Findings and Conclusions
I credit Kingston’s testimony that he walked through the area where the spillage was
located once a month to check safety equipment, that at least one miner would perform
maintenance on the conveyor belt, and that at least one miner would use the ladder on the side of
the elevator to perform maintenance on the bag house once every three months. Based on the
above definitions, the area where the spillage was located was used both as a workplace and
passageway. Taft failed to keep the area around elevator 101 clean by allowing a build-up of
powder to occur that was up to 6 inches deep over an area of 12 feet by 12 feet.9 I find that
Respondent violated section 56.20003(a).
As stated in the prior citation, the slipperiness of the powder created a slip, trip, and fall
hazard. Even though the surface was flat, this hazard could have reasonably caused twisted
ankles, bruises, and cuts, resulting in lost workdays or restricted duty. Although Kingston
maintained that a miner would not be injured due to his familiarity with the area, the Act does
not distinguish between a miner who knows the area and one that does not. In addition, I agree
with Cheney’s determination that injury is unlikely because one miner would check safety
equipment in the area or grease bearings on the conveyor just once a month.
One miner only being in the area of the spillage once a month would be considered a
mitigating factor supporting Cheney’s determination of moderate negligence. However,
Kingston’s comment to Cheney about how the spill “just happened” and that “he was
shorthanded,” indicates to me that Kingston was aware of the spill and no clean-up was
provided. Even if the accumulation included powder that was swept off the 102 silo, Kingston
agreed that there was more powder present on the floor than what would have been swept off.
Taft should have known about the existing conditions. I do not consider being shortstaffed a mitigating circumstance. However, since the area is seldom accessed, the spill that
occurred prior to the sweeping of the 102 silo would likely not have been seen. Therefore, I find
that the level of negligence was properly marked as moderate.

9

While there were discrepancies in the time when clean-up was done on the 102 silo and
the time that the citation for elevator 101 was issued, Kingston acknowledged that the amount of
build-up on the floor was more than what would have been swept off of the silo. In addition,
there was no mention by either party of barricades in the area of the elevator that Kingston stated
were put up when cleaning off the silo. This leads me to believe that the silo was not cleaned off
until after this citation was issued.

36 FMSHRC Page 531

3. Citation No. 8689620
Citation No. 8689620 was issued by Cheney on August 1, 2012, at 5:25 a.m., pursuant to
section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 56.20003(a). The violation was
described in the “Condition or Practice” section as follows:
Over at Auger #6 they had a spillage of material. This spillage of material was
approximately 24 inches deep. There were footprints all thought [sic] the
spillage. Miners were exposed to twisted ankles or a slip, trip, fall hazard. This
was located on the south side of the plant. Miners are in this area to do
maintenance.
Standard 56.20003(a) was cited 5 times in two years at mine 04-02964 (5 to the
operator, 0 to a contractor).
Ex. G-11.
Cheney determined that the violation was reasonably likely to result in lost workdays or
restricted duty, that it was significant and substantial (S&S), that one person was affected, and
that the level of negligence was moderate. A civil penalty in the amount of $687.00 was
assessed for the violation.
A. Relevant Testimony
(1) Inspector David Cheney
Cheney testified that there was spillage located at auger 6. Tr. 85. A photograph depicts
the auger and powder spread out over the floor, some in a pile on the right side. Ex. G-12, 12-A,
13, 14; Tr. 87, 89.10 It does not capture the entire spill. Tr. 89. Cheney measured the powder at
a depth of 3 to 6 inches, with some of the piles reaching 24 inches deep. Tr. 97, 157, 158.
Miners were conducting maintenance work in the area on a pipe that had a hole. Tr. 103-04. In
addition to fixing the pipe, Cheney posited that other types of maintenance would be done in the
area because he viewed screws, ports, an electrical box, a chute, and stairs. Ex. G-15A; Tr. 105,
108-10.
(2) Nick Kingston
Kingston testified that the powder, fines from the mill, came from the relief valves of the
auger 6. Tr. 209, 211. The valves were opened to relieve pressure when a blockage occurred,
usually two to three times a week. Tr. 209-10, 293. In order to reach the valves, a miner would
have to walk under the auger 6. Tr. 210. Kingston estimated that the ports and omnilift were
opened between July 29 and July 31. Tr. 288, 293. He also stated that workplace exams were
10

Kingston clarified that in Exhibit 15A, the A marked by Cheney was not the auger but
an omnilift, which is a conveyor. Tr. 287. The long horizontal pipe marked P is the auger. Tr.
288.

36 FMSHRC Page 532

conducted in the area where the spillage was located when it was running because trucks were
loaded near there. Tr. 290.
Respondent argues that the citation should be vacated because maintenance was being
done over the cited area. R. Resp. Br. at 4. This is not a valid defense. Pursuant to section
110(a) of the Act, “[t]he operator of a coal or other mine in which a violation occurs of a
mandatory health or safety standard or who violates any other provision of this Act, shall be
assessed a civil penalty by the Secretary. . . .” 30 U.S.C. § 820(a). “This provision has been held
to impose liability for violation of a standard against an operator without regard to fault.” Ames
Construction, Inc., 33 FMSHRC 1607, 1611 (July 2011); see also Allied Products Co. v.
FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 1982); Sewell Coal Co. v. FMSHRC, 686 F.2d 1066,
1071 (4th Cir. 1982).
The area underneath the auger 6 was a workplace and Taft failed to keep the area clean
and orderly by allowing piles of powder to accumulate up to 24 inches over a large area. Both
witnesses stated that maintenance was being conducted in the immediate area of the spill. There
were other objects in the area that would have required maintenance, and a miner had to travel
underneath the auger in order to reach the relief valves. In addition, I credit Kingston’s
testimony that workplace exams were conducted in the area of the spill and that trucks were
loaded there. Accordingly, I find that Taft violated section 56.20003(a).
B. Findings and Conclusions
(1) Significant & Substantial
The Commission has reviewed and reaffirmed the familiar Mathies framework for
determining whether a violation is S&S in Cumberland Coal Resources, 33 FMSHRC 2357
(Oct. 2011):
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. §
814(d), and refers to more serious violations. 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. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathies, 6 FMSHRC 1, the Commission further explained:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.

36 FMSHRC Page 533

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d
133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103
(5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable
likelihood of injury should be made assuming continued normal mining
operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 (Aug. 1984).
....
The Commission recently discussed the third element of the Mathies test in
Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct.
2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine map).
The Commission held that the “test under the third element is whether there is a
reasonable likelihood that the hazard contributed to by the violation, i.e., [in that
case] the danger of breakthrough and resulting inundation, will cause injury.” Id.
at 1281. Importantly, we clarified that the “Secretary need not prove a reasonable
likelihood that the violation itself will cause injury.” Id. The Commission also
emphasized the well-established precedent that “the absence of an injuryproducing event when a cited practice has occurred does not preclude a
determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906
(Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June
1996)).
Cumberland Coal Res., 33 FMSHRC at 2363-65.
The fact of the violation has been established. Cheney maintained that the spillage in the
auger 6 area contributed to a discrete hazard, a miner slipping, tripping and falling. Tr. 113. The
violation being S&S turns on whether the hazard was reasonably likely to result in an injury
causing event and whether it was reasonably likely that an injury would be of a reasonably
serious nature.
Cheney determined that injury was reasonably likely because there were miners in and
around the area for the previous 2 days conducting maintenance activities and the area “had
footprints all through it.” Tr. 97, 103-04, 114, 117. Specifically, he was told by one of the
maintenance workers that they were preparing to go upstairs to fix a pipe that had a hole. Tr.
104. While caution tape was present in the area because of a crane being used to perform
maintenance work the night before, the tape only spanned one side, and more tape was added
once the citation was issued. Tr. 100, 155. Like the above citations, Cheney believed that the
spillage created a slip, trip, and fall hazard that could have caused a twisted ankle, resulting in
lost workdays or restricted duty. Tr. 113.
Kingston did not think that walking through the area would have been hazardous to a
miner. Tr. 211. He maintained that caution tape was hung by maintenance when fixing a
blockage in the auger, which usually took place above the floor area where the spillage was
located. Tr. 213. He stated that the tape’s function was to block anyone from entering the area
because miners were on ladders and sparks were flying from repairing the pipe. Tr. 214, 285.

36 FMSHRC Page 534

The powder came from the relief valves of the auger, which Kingston testified were
opened between July 29, 2012, and July 31, 2012. This means that the powder accumulations
had been present for at least one shift, possibly more. There were also footprints throughout the
spillage area, most likely those of the maintenance crew fixing the pipe. This indicates that the
caution tape originally placed on one side of the area was insufficient to prevent miners from
traveling through it. In addition, Cheney testified that he slipped on similar looking powder
located on top of the 102 silo. Tr. 139. I find that the spillage contributed to a discrete safety
hazard, a miner slipping, tripping, and falling, which could have resulted in twisted ankles, cuts,
and bruises.
Based on these facts, I find that it was reasonably likely that one miner would suffer
reasonably serious injuries that would result in lost workdays or restricted duty, and that Cheney
properly determined the violation to be S&S.
(2) Negligence
Cheney marked the level of negligence as moderate because he was told by Kingston that
that the spill had just happened. Tr. 114-15. Cheney did not believe him and asserted that the
spill had been present for “almost more than a shift.” Tr. 114-15. In addition, caution tape was
present in the area because of a crane doing maintenance work the night before, not as the result
of the spillage. Tr. 100. The tape, however, only spanned one side, and more tape was added
once the citation was issued. Tr. 155.
Kingston would read the workplace exam records every 2 to 3 days but looked at the
records for each day in between. Tr. 283. Section 5 on the exam record covered auger 6 which
was located in mill 1. Tr. 285; Ex. G-26. On July 31, 2012, section 5 had housekeeping checked
off as unsatisfactory and the comment reads “[a]ll taped off.”11 Ex. G-26; Tr. 285. Kingston
stated that the maintenance men would have cleaned up after finishing the repair on the pipe. Tr.
290.
Since the valves were opened between July 29, 2012, and July 31, 2012, the powder had
been present for at least one shift. The spill was addressed in the workplace exam record on July
31, 2012, and the caution tape, although insufficient, would have at least alerted miners to the
presence of the powder. I find that Cheney properly determined the level of negligence to be
moderate.

11

Roy Long signed off on this exam but it was not mentioned in the record if he was an
agent of Taft. Tr. 282.

36 FMSHRC Page 535

4. Citation No. 8689621
Citation No. 8689621 was issued by Cheney on August 1, 2012, at 5:50 a.m., pursuant to
section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 56.20003(a). The violation was
described in the “Condition or Practice” section as follows:
At the top of the fines tank was approximately six inches of fines over the toe
boards. There were maintenance welders working in this area to fixed [sic] a leak
the day before. Footprints were all throughout this area. Miners were exposed to
a slip, trip, fall hazard. This tank is approximately 60 foot [sic] off the ground.
Standard 56.20003(a) was cited 6 times in two years at mine 04-02964 (6 to the
operator, 0 to a contractor).
Ex. G-16.
Cheney determined that the violation was reasonably likely to result in lost workdays or
restricted duty, that it was S&S, that one person was affected, and that the level of negligence
was high. A civil penalty in the amount of $2,282.00 was assessed for the violation.
A. Relevant Testimony
(1) Inspector David Cheney
Cheney testified that there was a large spill, consisting of powder looking material, on the
top of the fines tank. Tr. 118; Ex. G-17. The powder was over the toe boards, which was along
the outer edge, and at the back side of the tank. Tr. 120. The depth of powder was
approximately 6 inches deep, lower in the middle, and extended over an area of approximately
12 feet by 12 feet or 14 feet by 14 feet. Tr. 120, 125. There were also footprints in the powder.
Tr. 118, 120.
Cheney asserted that the area was a workplace because two maintenance men were
changing a pipe in the area at the time the citation was issued. Tr. 126, 127. There was also a
dust collector in the area which Cheney maintained would require bag changes on a regular basis
because the bags get clogged. Tr. 128, 129; Ex. G-18.
(2) Nick Kingston
Kingston confirmed that at the time that the citation was issued, there was a leak at the
top of the fines tank and maintenance was in the process of fixing it. Tr. 215-16. He stated that
maintenance had been working to replace the pipe since at least July 31. Tr. 298. Kingston
maintained that generally, only maintenance would need to access the top of the fines tank to
conduct inspections of the dust collector. Tr. 215. He was “pretty sure” the inspection was done
once every 3 months. Tr. 215.

36 FMSHRC Page 536

Respondent argues that the citation should be vacated because welding work justifiably
delayed clean-up. R. Resp. Br. at 5. As stated above, the Act imposes strict liability for
violation of a standard without regard to fault. Ames Construction, Inc., 33 FMSHRC at 1611.
That welding work delayed clean-up is not a valid defense.
Maintenance men were working on top of the fines tank to replace the leaking pipe at the
time that the citation was issued and maintenance on the dust collector would have to be
performed about once every 3 months. Work was clearly being conducted in the area, making it
a workplace. Taft failed to keep the top of the fines tank clean and orderly by allowing powder
to accumulate in a large area at depths of up to 6 inches. I find that Respondent violated section
56.20003(a).
Findings and Conclusions
(1) Significant & Substantial
Cheney maintained that the spillage contributed to a discrete hazard, a miner slipping,
tripping, falling, or hitting his head on a pipe. Tr. 130. The violation being S&S turns on
whether the hazard was reasonably likely to result in an injury causing event and whether it was
reasonably likely that an injury would be of a reasonably serious nature.
Cheney determined that injury to one person was reasonably likely because miners were
working in the area, walking through the powder, and no one had reported the spill. Tr. 129,
130. He posited that the spill created a slip, trip, and fall hazard that could have resulted in a
twisted ankle or a miner hitting his head on one of the several pipes in the area, causing lost
workdays or restricted duty.12 Tr. 130; Ex. G-17.
At least two maintenance men had been working to replace the leaking pipe since July
31, 2012. They had been walking through the powder, which was up to 6 inches deep in some
areas, and the spill had gone unreported at the time that the citation was issued. These conditions
contributed to a discrete safety hazard, a miner slipping, tripping, falling, or hitting his head on a
pipe. These hazards could have resulted in injuries such as a twisted ankle, cuts, bruises, or head
trauma, resulting in lost workdays or restricted duty.
Based on these facts, I find that the violation was reasonably likely to result in an injury
of a reasonably serious nature to one miner, and that Cheney properly determined that the
violation was S&S.
(2) Negligence
Cheney marked the level of negligence as high because he believed that Respondent
knew about the spill and took no action to clean it up. Tr. 130. He based this belief on the fact
that Chris Atkins, the maintenance supervisor, told him that the pipe was being replaced over the
12

Cheney also posited that a miner could have suffered a fatal injury if he slipped and fell
through the railing. Tr. 129. No additional support to this theory was discussed and the
occurrence appears highly unlikely.

36 FMSHRC Page 537

last few days. Tr. 131, 224. Cheney stated that when he asked Atkins why the spill had not been
cleaned up, Atkins had no response. Tr. 131. Cheney did not review the workplace exam
records that covered the top of the fines tank. Tr. 131-32.
A finding of high negligence is appropriate when “[t]he operator knew or should have
known of the violative condition or practice, and there are no mitigating circumstances.” 30
C.F.R. § 100.3.
Atkins, a supervisor and agent of Taft, had knowledge that the maintenance men were
replacing a pipe and chose to remain silent when asked by Cheney why the spill was not cleaned.
While this may imply that Atkins was aware of the spill, there was no direct testimony as to
whether Atkins had actually visited the top of the fines tank, and Cheney failed to check the
workplace exam records to confirm his belief. Nevertheless, since work was being conducted in
the area, Respondent, at the very least, should have known about the violative condition. The
fact that the top of the fines tank was usually accessed infrequently is not a mitigating factor
since men were performing maintenance in the area at the time of the inspection and workplace
exams were being conducted. Because neither the Secretary nor Respondent provided any
additional information that would constitute a mitigating circumstance, I find that the level of
negligence was properly marked as high.
III.

Civil Penalty Criteria

Section 110(i) of the Act grants the Commission the authority to assess all civil penalties
provided in the Act.
In assessing civil monetary penalties, the Commission shall consider the
operator’s history of previous violations, the appropriateness of such penalty to
the size of the business of the operator charged, whether the operator was
negligent, the effect on the operator’s ability to continue in business, the gravity
of the violation, and the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i).
1. History of Previous Violations
Taft’s history of violations is reflected in a report from MSHA’s database, referred to as
an R-17. Ex. G-21. The report reflects that 22 violations became final between April 2011 and
July 2012. I accept the figures in the report as accurate, but there is no way to determine whether
the numbers are high, moderate, or low. See Cantera Green, 22 FMSHRC 616, 623-24 (May
2000). The Secretary’s form reflecting the originally assessed penalty amounts for the litigated
violations (Secretary’s Exhibit A)13, does however, give some qualitative information by
assigning points for the number of violations. 30 C.F.R. § 100.3(c). For total violation history,
points used in the penalty calculation are assigned on the basis of the number of violations per
13

The Secretary’s Exhibit A was filed with the penalty petition.

36 FMSHRC Page 538

inspection day, ranging from 0 points for 0 to 0.3 violations per day to 25 points for in excess of
2.1 violations per day. The assessment form for the litigated violations in this case reflects an
assessment of 19 points for overall violation history. I find that Taft’s history of violations is
fairly high.
2. Size of the Operator
The parties did not stipulate to the size of the operator, however, the forms reflecting
calculations of the proposed penalties require a determination of the size of the mine operator.
The size is calculated “by using both the size of the mine cited and the size of the mine’s
controlling entity.” 30 C.F.R. § 100.3(b). The size of the mine and the size of the mine’s
controlling entity was assigned 6 points out of a possible 15 and 10 points respectively. As the
operator did not contest this determination, I find the operator to be medium in size.
3. Ability to Continue in Business
The parties stipulated that payment of the proposed penalties in this case will not affect
Taft’s ability to continue in business, and I so find. Stip. 8.
4. Good Faith Abatement
The Secretary stipulated that Taft exercised good faith in terminating the citations in a
timely manner, and I so find. Stip. 9.
Given the foregoing, I find the civil penalties assessed by the Secretary are appropriate.
IV.

Civil Penalty Assessments

Citation No. 8689617 is AFFIRMED as issued.
Citation No. 8689619 is AFFIRMED as issued.
Citation No. 8689620 is AFFIRMED as issued.
Citation No. 8689621 is AFFIRMED as issued.

36 FMSHRC Page 539

ORDER
It is ORDERED that the operator pay a total penalty of $3,321.00 within 30 days of the
date of this decision.14

/s/ James G. Gilbert
James G. Gilbert
Administrative Law Judge
Distribution (Certified Mail)
Pamela F. Mucklow, U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite
800, Denver, CO 80202
Larry R. Evans, Oil Dri Corporation of America, 28990 Georgia Highway 3N, Ochlocknee, GA
31773

14

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO
63179-0390.

36 FMSHRC Page 540

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

February 28, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
BLUE DIAMOND COAL COMPANY,
Respondent.

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2008-592
A.C. No. 15-09636-139419
Docket No. KENT 2008-784
A.C. No. 15-09636-144081
Mine: No. 77

:

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
GARY L. JENT, Agent of BLUE DIAMOND
COAL COMPANY,
Respondent.

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. KENT 2009-6
A.C. No. 15-09636-161762A
Mine: No. 77

DECISION
Appearances: Christian Barber, Esq., and Willow Fort, Esq., Office of the Solicitor, Nashville,
Tennessee, on behalf of the Secretary of Labor;
Melanie J. Kilpatrick, Esq., and Marco M. Rakjovich, Jr., Esq., Rajkovich,
Williams, Kilpatrick & True, PLLC, Lexington, Kentucky, on behalf of
Blue Diamond Coal Company;
Randall Scott May, Esq., Barret, Haynes, May & Carter, Hazard, Kentucky,
on behalf of Gary L. Jent.
Before:

Judge Paez

These cases are before me upon the petitions for the assessment of civil penalty filed by
the Secretary of Labor (“Secretary”) pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977 (“Mine Act”), 30 U.S.C. §§ 815, 820. In dispute are one section
104(d)(1) citation and three section 104(d)(2) orders issued to Blue Diamond Coal Company
(“Blue Diamond”), each of which the Secretary contends is a “flagrant” violation under section
110(b)(2) of the Mine Act, 30 U.S.C. § 820(b)(2). Also in dispute is a companion section 110(c)
penalty assessment issued to Gary L. Jent, alleging his personal liability as an agent of Blue

36 FMSHRC Page 541

Diamond. To prevail, the Secretary must prove his charges “by a preponderance of the credible
evidence.” In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819,
1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)),
aff’d sub nom., SOL v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998).
This burden of proof requires the Secretary to demonstrate that “the existence of a fact is more
probable than its nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept.
2000) (citations and internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001).
I. STATEMENT OF THE CASE
Each of the four alleged violations occurred at Blue Diamond’s Mine No. 77. MSHA
issued two section 104(d)(2) orders to Blue Diamond on April 5, 2007. Order No. 4220150
charges Blue Diamond with a violation of 30 C.F.R. § 75.370(a)(1) for failing to comply with its
approved ventilation plan, while Order No. 7521758 charges Blue Diamond with a violation of
30 C.F.R. § 75.220(a) for failing to comply with its approved roof control plan. On May 9,
2007, MSHA issued section 104(d)(2) Order No. 7524542, charging Blue Diamond with another
violation of 30 C.F.R. § 75.220(a). Nearly 6 months later, on November 2, 2007, MSHA then
issued section 104(d)(1) Citation No. 7505299, charging Blue Diamond with yet another
violation of 30 C.F.R. § 75.220(a). The Secretary designated each citation and order as
significant and substantial (“S&S”)1 and as the result of Blue Diamond’s unwarrantable failure2
to comply with a mandatory health or safety standard. Additionally, in one of his first
opportunities under the then-new Mine Improvement and New Emergency Response Act of
2006 (“MINER Act”), the Secretary designated each violation as “flagrant”3 and thus eligible for
increased penalties. The Secretary proposes penalties of $187,400.00 for Order No. 4220150,
$184,900.00 for Order No. 7521758, $196,700.00 for Order No. 7524542, and $154,500.00 for
Citation No. 7505299, for a total civil money penalty of $723,500.00. Lastly, the Secretary
proposes that Jent pay a penalty of $3,000.00 under section 110(c) of the Mine Act in connection
with the ventilation violation in Order No. 4220150.
1

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

Congress created the “flagrant” designation providing for enhanced civil penalties when
it passed the MINER Act. MINER Act, Pub. L. No. 109-236, § 8, 120 Stat. 493, 501 (codified
as amended at 30 U.S.C. § 820(b)(2)). The flagrant designation authorizes the assessment of
increased civil penalties up to $220,000.00 for any violation “deemed” to be “a reckless or
repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health
or safety standard that substantially and proximately caused, or reasonably could have been
expected to cause, death or serious bodily injury.” 30 U.S.C. § 820(b)(2).

36 FMSHRC Page 542

This matter was originally assigned to two other Administrative Law Judges, during
which the case was stayed pending MSHA’s investigation under section 110(c) amidst the
Commission’s backlog following enactment of the MINER Act. Thereafter, Chief
Administrative Law Judge Robert J. Lesnick assigned Docket Nos. KENT 2008-592, KENT
2008-784, and KENT 2009-6 to me, and I held a four-day hearing in Hazard, Kentucky.4 The
Secretary presented testimony from MSHA Inspectors Patrick Stanfield, Burnice Sturgill, and
Robert Ashworth, MSHA Roof Control/Ventilation Specialist Charlie Fields, and a roof control
expert, MSHA Mining Engineer Michael Gauna. Blue Diamond presented testimony from
Section Foreman Timothy Ray Shepard, continuous miner operator Darrell Cress, Mine
Superintendent Charles Williams, and a roof control expert, Dr. David Alan Newman. Section
Foreman Gary L. Jent also testified. After the hearing, I granted the parties’ request to stay the
briefing schedule in these cases pending the outcome of the Commission’s decision on the
appeal of Stillhouse Mining, LLC, 33 FMSHRC 778 (Mar. 2011) (ALJ), which applied the
“flagrant” provisions under section 110(b)(2) of the Mine Act. A year later, the Commission
vacated its order granting review of that decision, and I lifted the stay of the briefing order in
these proceedings. The parties each filed closing briefs, and both Blue Diamond and Jent filed
reply briefs.
II. ISSUES
The Secretary argues that the conditions at Mine No. 77 were properly cited as violations,
that the allegations underlying the citation and orders are valid, and that the proposed penalties
are appropriate. (Sec’y Br. at 96.) The Secretary also contends that his section 110(c) charges
and proposed penalties are valid and appropriate. (Id.)
For its part, Blue Diamond first admits that one of the four conditions identified in Order
No. 4220150 constituted a violation of its ventilation plan (Resp’t Br. at 11), but contends that
the Secretary has not proven any of the other three conditions violated its ventilation plan. (Id. at
7, 10, 12.) In particular, Respondent disputes the accuracy of certain air velocity measurements.
(Id. at 2–10.) In addition, Respondent denies that the conditions were S&S, unwarrantable, or
flagrant violations. (Id. at 12–21.) Jent also denies the section 110(c) charges against him. (Jent
Br. at 2–3.)
Second, Respondent admits that conditions underlying Order No. 7521758 constituted a
violation of its roof control plan, but denies that any of the conditions were S&S, unwarrantable,
or flagrant violations. (Resp’t Br. at 36–42.)
Third, Respondent admits that one of the two conditions identified in Order No. 7524542
constituted a violation, but denies that the other condition violated its roof control plan. (Id. at
4

In this decision, the hearing transcript, the Secretary’s exhibits, and Blue Diamond’s
exhibits are abbreviated as “Tr.,” “Ex. G–#,” and “Ex. R–#,” respectively. Jent introduced no
exhibits at the hearing.

36 FMSHRC Page 543

43–47, 53.) Specifically, Blue Diamond disputes the accuracy of the inspector’s measurements
and contends that the Secretary improperly interpreted the terms of its roof control plan
regarding extended cuts. (Id. at 44–49.) Respondent also denies that the conditions cited were
S&S, unwarrantable, or flagrant violations. (Id. at 49–53.)
Fourth, Blue Diamond admits that one of the four conditions identified in Citation No.
7505299 violated its roof control plan, but denies that the other three conditions constituted
violations. (Id. at 54–57.) Specifically, Respondent disputes the accuracy of certain entry
measurements. (Resp’t Br. at 54–56.) Again, Blue Diamond denies that any of the cited
conditions were S&S, unwarrantable, or flagrant violations. (Resp’t Br. at 57–61.)
Accordingly, the following issues are before me: (1) whether the Secretary’s air velocity
measurements for Order No. 4220150 accurately reflected the flow of ventilating air; (2) whether
the Secretary’s measurements accurately reflected conditions noted in Order No. 7524542;
(3) whether the Secretary improperly interpreted Blue Diamond’s roof control plan provisions
regarding extended cuts in Order No. 7524542; (4) whether the Secretary’s measurements
accurately reflected conditions noted in Citation No. 7505299; (5) whether the record supports
the Secretary’s S&S, unwarrantable, and flagrant designations for the Citation and all three of
the Orders before me; (6) whether the record supports holding Gary L. Jent liable under section
110(c); and (7) whether the Secretary’s proposed penalties against Blue Diamond and Jent are
appropriate.
For the reasons set forth below, Order No. 4220150 is MODIFIED to remove the S&S,
unwarrantable, and flagran designations, and to lower the cited level of negligence from
“reckless disregard” to “moderate.” Order No. 7521758 is AFFIRMED as S&S, and
MODIFIED to remove the unwarrantable failure and flagrant designations and to lower the
cited level of negligence from “reckless disregard” to “moderate.” Order No. 7524542 is
AFFIRMED as S&S and unwarrantable, and MODIFIED to remove the flagrant designation
and to lower the cited level of negligence from “reckless disregard” to “high.” Citation No.
7505299 is AFFIRMED as S&S, and MODIFIED to remove the unwarrantable failure and
flagrant designations and to lower the cited level of negligence from “high” to “moderate.”
Finally, the section 110(c) penalty assessment against Gary L. Jent is VACATED, and the
proceeding brought against him is DISMISSED.
III. FINDINGS OF FACT – OVERVIEW
A.

Operations at Mine No. 77

Mine No. 77 is a room-and-pillar type underground coal mine located in Perry and
Letcher Counties, Kentucky. (Ex. G–3; Ex. G–16; Ex. G–37.) When viewed from above, roomand-pillar type underground coal mines resemble a checkerboard containing long corridor-like
entries and crosscuts driven through a seam of coal with square or rectangular pillars of coal

36 FMSHRC Page 544

remaining in place to bear the weight of the rock and dirt between the mine’s roof and the earth’s
surface. (Ex. G–16; Ex. G–17; Tr. 676–77, 938, 1111–12.)
Blue Diamond uses large machines, known as continuous miners, to cut through rock and
extract coal from the mine. (Ex. G–29 at 22; Ex. R–25; see, e.g., Tr. 420–24, 648.) Continuous
mining machines include water sprays and scrubbers to cut down on dust created during mining.
(Ex. G–29 at 22; Ex. R–25; Tr. 419–21, 901–02.) The continuous miner operator completes
each cut in a series of parallel “lifts” because finished entries and crosscuts are wider than the
continuous mining machine. (Tr. 425–26, 475, 584.) Starting on the left hand side of a new
entry or crosscut, the continuous miner operator takes a “lift” by boring forward a specified
distance into the coal face. (Tr. 475, 584.) After completing the left lift, the continuous miner
operator pulls back and takes a parallel lift on the right hand side of the entry. (Tr. 425–26, 475,
584.) Taken together, these lifts are considered a cut.
Blue Diamond’s Mine No. 77 operates on three shifts. (Tr. 60–61, 115, 129, 142, 804;
Ex. G–28 at 1.) The day shift operates from 7:00 a.m. until 3:00 p.m., the second shift operates
from 3:00 p.m. until 11:00 p.m., and the third shift operates from 11:00 p.m. until 7:00 a.m. (Tr.
60–61, 804.) The third shift is a maintenance shift that does not produce coal. (Tr. 1042.)
B.

Roof Control at Mine No. 77

Mine roofs include two parts: the immediate roof and the main roof. The immediate roof
is the first six to eight feet of rock immediately above the entry or crosscut corridor. (Tr. 46,
70–71.) The main roof is the rock between the immediate roof and the earth’s surface. (Tr.
70–71.) Mine No. 77 is between 900 and 1,200 feet below the earth’s surface, and the weight of
that overburden creates downward pressure on the roof of the entry and crosscut corridors. (Tr.
77, 86, 140–41, 255, 311, 676–77, 689, 711, 926.) Rock roofs sag, fragment, and twist under
this pressure, which may cause pieces of the roof to collapse and fall. (Tr. 77–78, 84–86, 99,
106, 119–20, 141–43, 157–59, 263, 307, 311–12, 351, 687–689, 717, 735–36, 739, 1105–06,
1110–12, 1117–20, 1125–26, 1147–48.) Longer and wider cuts are more likely to fall because
they expose more geological material. (Tr. 731, 952, 1117–18.)
To protect miners from roof collapses and falling rock, MSHA enforces standards
requiring mine operators to reinforce and strengthen mine roofs. See 30 C.F.R.
§§ 75.200–.223. Under these regulations, MSHA approves roof control plans requiring mine
operators to support their mine roofs in specific ways. Id. §§ 75.220–.223. At the time of each
of the alleged roof control violations, Blue Diamond was operating under MSHA’s approved
roof control plan dated September 7, 2006 (“September 7 Plan”). (Ex. G–19; Ex. G–20; Ex.
G–23; Ex. G–25.) A typical roof control plan requires several steps to maintain the integrity of
mine roofs. (See, e.g., Ex. G–20.)
First, roof bolts stabilize the immediate roof and secure it to the main roof. (Tr. 56, 85,
262–63, 275, 684, 713, 723, 751, 764, 1111.) Using a roof bolting machine, a roof bolt operator

36 FMSHRC Page 545

inserts a long metal roof bolt into the mine roof, using resin glue (or grout) to hold the roof bolt
in place. (Tr. 64–65, 67–68, 149, 462, 608–09, 678, 944.)
Blue Diamond used two types of roof bolts in Mine No. 77: five-foot resin bolts and tenfoot cable bolts. Resin bolts are rigid pieces of rebar that create a beam of solid rock and have a
bearing plate on the bottom to secure draw rock5 to the immediate roof. (Tr. 680–85, 937.) In
contrast, ten-foot cable bolts extend into the main roof. (Tr. 59, 85, 90, 262–63, 683–84,
937–38.) Acting as a tether, these cable bolts help to suspend the immediate roof from the more
secure main roof. (Tr. 85, 89, 262–63, 682–84, 937–38.) Cable bolts are designed to compress
the various layers of rock within the immediate roof to create a more secure, fixed beam of rock.
(Tr. 683–84.)
Second, roof bolting plans limit delays in installing roof bolt support because mine roofs
begin to sag and separate when an operator waits too long to install roof support. (Tr. 1110–11,
1119, 1147–48.) This sagging and separation makes a roof more likely to fall than if an operator
bolts the roof immediately. (Tr. 1117–19.)
Finally, in some parts of the mine, roof control plans require additional support
mechanisms, such as straps and cribs. Straps are flexible pieces of steel that are four-feet long
and a quarter-inch to a half-inch thick, with holes on the ends that allow them to be affixed to the
mine roof or rib. (Tr. 72–73, 241–42, 246–47, 697–98.) Cribs are wooden blocks stacked on top
of each other to brace the mine roof. (Tr. 63–64, 121–22, 964–65.)
C.

Mine Ventilation

Mining coal creates coal dust and liberates methane, which is an explosive gas at certain
concentrations. (Tr. 427, 463–64.) Coal dust can also contribute to pneumoconiosis. (Tr.
435–36.) At the time of the violations, Mine No. 77 liberated between 250,000 and 500,000
cubic feet of methane in a twenty-four-hour period. (Tr. 417.) If not properly ventilated, coal
dust and methane present a danger to miners.
Mine ventilation systems “sweep away noxious, harmful, [and] explosive gases and coal
dust and rock dust produced by coal production.” (Tr. 426–27.) Mine operators use a variety of
permanent devices as well as temporary devices—including burlap check (or brattice) curtains,
line curtains, and deflector curtains, made of burlap—as ventilation controls that direct fresh air
in a predetermined course through the mine. (Tr. 443, 450, 470–71, 808–09, 857, 861.) An
anemometer is used to take air readings that measure the velocity of air flowing through a
particular spot. (Tr. 471–72, 859, 868–69.)

5

Throughout the hearing, various witnesses consistently used the phrase “draw rock” to
describe loose rock within the mine roof. Inspector Sturgill defined “draw rock” as “anything in
the mine roof that’s not supported that could fall from the mine roof.” (Tr. 381.)

36 FMSHRC Page 546

Under 30 C.F.R § 75.370(a)(1), a mine operator must develop and follow an approved
ventilation plan meeting certain requirements. At the time of the alleged ventilation violation in
this case, Blue Diamond followed a ventilation plan approved on July 26, 2005 (“July 26 Plan”).
IV. PRINCIPLES OF LAW AND STATUTORY ANALYSIS
A.

Section 110(c) of the Mine Act – Agent Liability

Corporate directors, officers, or agents are liable under section 110(c) when they know
or had reason to know of a violative condition, and fail to act to correct the condition. See
30 U.S.C. § 820(c); Cougar Coal Co., 25 FMSHRC 513, 517 (Sept. 2003). Section 110(c)
liability “is generally predicated on aggravated conduct constituting more than ordinary
negligence.” Ernest Matney, 34 FMSHRC 777, 783 (Apr. 2012).
B.

30 C.F.R. § 75.370(a)(1) – Ventilation Plans

Section 75.370(a)(1) requires operators to develop and follow an approved ventilation
plan designed to control methane and respirable dust and suitable to the mine’s conditions
and mining system; and consisting of the elements prescribed in section 75.371 and a map as
prescribed in section 75.372. 30 C.F.R. § 75.370(a)(1). See Peabody Coal Co., 16 FMSHRC
2199, 2203 (Nov. 1994) (affirming ALJ’s conclusion that a ventilation plan is violated when an
operator does not follow its specific terms).
C.

30 C.F.R. § 75.220(a) – Roof Control Plans

Section 75.220(a)(1) requires operators to develop and follow an approved roof control
plan that is suitable to the prevailing geological conditions and the mining system in place at the
mine and to take additional measures to protect persons if unusual hazards are encountered.
30 C.F.R. § 75.220(a)(1). An operator violates section 75.220(a)(1) when it does not comply
with the terms of its roof control plan. See Harlan Cumberland Coal Co., 20 FMSHRC 1275,
1280–82 (Dec. 1998) (explaining how the Secretary must prove violations of roof control plans).
D.

Significant and Substantial Violations

A violation is S&S “if, based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to
safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote
omitted); see also Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133,

36 FMSHRC Page 547

135–36 (7th Cir. 1995) (affirming ALJ’s application of the Mathies criteria); Austin Power, Inc.
v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria).
The Commission has also provided guidance to Administrative Law Judges in applying
the Mathies test. The Commission indicated that “an inspector’s judgment is an important
element in an S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC
at 825–26); see also Buck Creek Coal, 52 F.3d at 135 (stating that ALJ did not abuse discretion
in crediting opinion of experienced inspector). 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) (emphasis added) (citing Cement
Div., National Gypsum Co., 3 FMSHRC 822, 827 (Apr. 1981). Moreover, the Commission has
indicated “[t]he correct inquiry under the third element of Mathies is whether the hazard
identified under element two is reasonably likely to cause injury.” Black Beauty Coal Co.,
33 FMSHRC 1733, 1742 n.13 (Aug. 2012). Finally, the Commission indicated an evaluation
of the reasonable likelihood of injury should be made assuming continued mining operations.
U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co.,
6 FMSHRC 1573, 1574 (July 1984))
E.

Unwarrantable Failure of Operator to Comply with Mandatory Standards

In Emery Mining, the Commission determined that an unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. 9 FMSHRC 1997, 2001 (Dec. 1987).
Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003–04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at
136 (approving the Commission’s unwarrantable failure test).
Whether conduct is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist,
such as the length of time that the violation has existed, the extent of the violative condition,
whether the operator has been placed on notice that greater efforts are necessary for compliance,
the operator’s efforts in abating the violative condition, whether the violation is obvious or poses
a high degree of danger, and the operator’s knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp.,
20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999);
Midwest 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 1998). 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
Co., 22 FMSHRC at 353. All relevant facts and circumstances of each case must be examined to
determine if an actor’s conduct is aggravated or whether mitigating circumstances exist. Id.

36 FMSHRC Page 548

F.

Flagrant Violations
Section 110(b)(2) provides:
Violations under this section that are deemed to be flagrant may be
assessed a civil penalty of not more than $220,000. For purposes
of the preceding sentence, the term “flagrant” with respect to a
violation means a reckless or repeated failure to make reasonable
efforts to eliminate a known violation of a mandatory health or
safety standard that substantially and proximately caused, or
reasonably could have been expected to cause, death or serious
bodily injury.

30 U.S.C. § 820(b)(2) (emphasis added). Thus, section 110(b)(2) authorizes the Commission
to assess a civil penalty of up to $220,000.00 for any violation that is deemed to be flagrant.
Violations may be deemed flagrant when an operator fails either (1) recklessly or (2) repeatedly
to make reasonable efforts to eliminate a known violation.
1.

Reckless Failure

In my decision in Stillhouse Mining, LLC, I closely examined the text of the MINER Act
and its legislative history, and determined the statute to be ambiguous. 33 FMSHRC 778, 801
(Mar. 2011) (ALJ). To date, the Commission has not contradicted my interpretation of the
“reckless” element or the second, third, and fourth elements of a flagrant violation. For the
purposes of this decision, therefore, I adopt the interpretation of each of these elements as
outlined in Stillhouse, including:
1. Reckless – “[A]n operator is reckless for the purposes of a flagrant violation when it
consciously or deliberately disregards an unjustifiable, reasonably likely risk of death or serious
bodily injury in failing to make reasonable efforts to eliminate a known violation of a mandatory
health or safety standard.” Id. at 804.
2. Failure to Make Reasonable Efforts to Eliminate – “[A] ‘reckless or repeated failure to
make reasonable efforts to eliminate a known violation of a mandatory health or safety standard’
occurs when, in light of all the facts and circumstances surrounding the violation, the operator
does not take the steps a reasonably prudent operator would have taken to eliminate the known
violation of a mandatory health or safety standard and consciously or deliberately disregards an
unjustifiable, reasonably likely risk of death or serious bodily injury.” Id. at 805.
3. Known Violation of a Mandatory Health or Safety Standard – “[A] ‘known violation’
refers to the operator’s express or implied actual knowledge of the violation” and “need not have
been previously cited by MSHA at the time the operator recklessly failed to eliminate it.” Id. at
807.

36 FMSHRC Page 549

4. Reasonably Could Have Been Expected to Cause Death or Serious Bodily Injury –
“[W]hen, based on all the facts and circumstances surrounding the operator’s reckless failure to
make reasonable efforts to eliminate a known violation of a mandatory health or safety standard,
the operator’s conduct was likely to bring about death or serious bodily injury.” Id. at 808.
2.

Repeated Failure

Similarly, the Commission has not yet adopted a detailed definition of “repeated” failure.
The Commission has stated that section 110(b)(2) plainly permits the Secretary to use an
operator’s past violation history as evidence of a “repeated” failure under section 110(b)(2).
Wolf Run Mining Co., 35 FMSHRC 536, 541 (Mar. 2013) (“We conclude that the plain language
of section 110(b)(2) does not support the Judge’s ruling that past violative conduct may not be
considered in determining whether a cited condition represents a ‘repeated failure . . . .’”).
Nevertheless, the Commission limited its decision to whether the Judge had properly construed
the “‘repeated failure’ language of section 110(b)(2) . . .” and did “not resolve which prior
violations are relevant to the assessment of a ‘repeated failure’ violation.” Id. at 543 & n.15.
Thus, I may consider evidence of past violations to determine whether an operator’s
conduct constitutes a repeated failure. Yet, the narrow, interlocutory nature of the Commission’s
Wolf Run decision leaves open the level of similarity or pervasiveness necessary for past conduct
to prove a present violation as a repeated failure under section 110(b)(2) of the Mine Act.
In his post-hearing brief, the Secretary presents a two-pronged definition for “repeated”:
[W]here [s]ection 110(b)(2)’s other criteria are satisfied, a
“repeated failure” is established where the operator either: (1)
failed more than once to make reasonable efforts to eliminate the
violation alleged to be flagrant; or (2) failed to make reasonable
efforts to eliminate at least one previous violation before failing to
make reasonable efforts to eliminate the violation alleged to be
flagrant.
(Sec’y Br. at 8 (citation omitted).) However, the Secretary does not rely on his first proposed
interpretation— ., that Blue Diamond failed more than once to make reasonable efforts to
eliminate the violation alleged to be flagrant. (Ex. G–19; Ex. G–23; Ex. G–25; Ex. G–27; Sec’y
Br. at 37, 53, 63, and 87.) Indeed, the Secretary’s post-hearing brief points only to Blue
Diamond’s history of previous violations. (Sec’y Br. at 37, 53, 63, and 87.) Consequently, the
Secretary’s “repeated” failure allegations turn on his second proposed interpretation— ., Blue
Diamond’s alleged failure to make reasonable efforts to eliminate at least one previous violation
before failing to make reasonable efforts to eliminate the violation alleged to be flagrant.
The Secretary argues that where section 110(b)(2)’s other criteria are satisfied, an
operator’s previous failure “to make reasonable efforts to eliminate” one prior violation is a

36 FMSHRC Page 550

predicate upon which the presently cited failure to make reasonable efforts may be deemed a
“repeated” failure. (See Sec’y Br. at 8.) According to the Secretary’s definition, a flagrant
designation under the repeated prong of section 110(b)(2) includes the following elements:
1. A present failure to make reasonable efforts to eliminate the violation alleged to be
flagrant;
2. That the present violation was a known violation of a mandatory health or safety standard;
3. That the present violation reasonably could have been expected to cause death or serious
bodily injury; and
4. A prior failure to make reasonable efforts to eliminate a previous violation.
Ordinarily, a question regarding the meaning of “repeated” would require that I apply the
familiar, two-step interpretive framework outlined in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837, 842 (1984). Given my factual findings and conclusions of law
in this case, however, I need not make a detailed analysis of the meaning of “repeated” in section
110(b)(2). See discussion infra Part V.A.5, Part VI.B.5, Part VI.C.6, and Part VI.D.6. Instead, I
will assume arguendo that the Secretary’s interpretation should be accorded deference.
V. ANALYSIS, FURTHER FINDINGS OF FACT, AND CONCLUSIONS OF LAW —
VENTILATION VIOLATIONS
A.

Order No. 4220150 – Ventilation Order – April 5, 2007
1.

Background, Inspection, and Further Findings of Fact
a.

Development of New Panel

On April 4, 2007, Blue Diamond began developing a new panel known as the 11 Section
off the Daugherty Mains in Mine No. 77. (Tr. 31–34, 36, 805; Ex. G–16; Ex. G–17.) When
facing the new panel, the 11 Section’s No. 1 entry was located on the left-hand side and the No.
6 entry on the right-hand side. (Tr. 34–35, 228; Ex. G–16; Ex. G–17.) Fresh air ventilated the
new panel from the 11 Section’s No. 6 entry down the 11 Section’s last open crosscut to the No.
1 entry. (Tr. 852, 856–57; Ex. R–30.) As the panel was developed, Blue Diamond recorded air
readings on its overnight and day shifts demonstrating sufficient air flow. (Tr. 833; Ex. R–18.)
That same day, Inspector Robert Ashworth began an inspection of the 11 Section. (Tr.
478–79; Ex. R–13 at 1–2.) While there, Ashworth completed an imminent danger run, examined
the mine roof and test holes, took methane gas readings, and took bottle samples of air. (Tr.
479–85, 496–500; Ex. R–13 at 1–10; Ex. R–16; Ex. R–17.) He also measured the air velocity in
the last open crosscut to be 14,706 cubic feet per minute (CFM), well above the 9,000 CFM
required in Blue Diamond’s July 26 Plan. (Tr. 485, 496; Ex. R–13 at 10–10(b); Ex. G–29 at 8.)
In addition, he examined ventilation curtains throughout the section and did not find any curtains
missing or out of place. (Ex. R–13 at 12; Tr. 497, 504.)

36 FMSHRC Page 551

b.

Mining Operations and Code-A-Phone Complaints on April 5, 2007

Mining operations on the 11 Section continued through the second shift of April 5, 2007.
(Tr. 773–75, 804–05.) When second-shift Section Foreman Jent arrived on the section that day,
he spoke with day-shift Section Foreman Jody Roberts. (Tr. 807.) Roberts mentioned no roof
control or ventilation concerns. (Tr. 807.) Jent then took an air reading in the last open crosscut
between the No. 1 and No. 2 entries, and measured an air velocity of 13,500 CFM. (Tr. 784–86,
804, 806–10; Ex. R–29.)
By the time Jent completed that air reading, the continuous miner machine began cutting
a crosscut between the No. 1 and No. 2 entries. (Tr. 423–25, 451–52, 811, 871; G–17; Ex.
G–36.) As the miner operated, Jent took another air reading behind the line curtain in the No. 1
entry and found an air velocity of approximately 5,700 CFM, also above the 5,500 CFM that the
July 26 Plan required behind line curtains. (Tr. 785, 798, 837; Ex. G–29 at 8.) The continuous
miner operator, Darrell Cress, mined for approximately half an hour but stopped when he learned
a shuttle car had broken down at the mine’s feeder. (Tr. 775–76, 797–98.) While backing the
continuous miner out of the new crosscut, Cress noticed that the last shuttle car he loaded had
torn down the line curtain in the No. 1 entry. (Tr. 775–78, 797.) Cress moved the curtain out of
the way so he could back down the entry without destroying the curtain, with the intention of
hanging it back up when finished. (Tr. 776–80, 797.)
Meanwhile, Jent had begun his on-shift exam and noticed that the roof bolter had moved
from the No. 3 entry into the No. 2 entry. (Tr. 812.) Jent observed the roof bolter sitting on the
line curtain for the No. 2 entry and instructed the roof bolter operators to re-hang the curtain.
(Tr. 812, 814.) Relying on the bolter operators to do as instructed, Jent headed to the No. 3 entry
to continue his on-shift exam. (Tr. 814–15.) Jent noticed that the roof bolter had torn down the
curtain in the No. 3 entry when moving to the No. 2 entry. (Tr. 815.) Following his policy that
miners re-hang any curtains they tear down, Jent instructed the roof bolter operators to re-hang
the curtain in the No. 3 entry. (Tr. 815–16.) Jent then headed to the feeder to address the
disabled shuttle car. (Tr. 36–37, 439, 522, 781, 816–18, 878; Ex. R–24A; Ex. R–29; Ex. R–30.)
At that point, Inspectors Robert Ashworth and Patrick Stanfield arrived on the 11 Section
with Superintendent Williams. (Tr. 30, 414–15, 821; Ex. G–18 at 1; Ex. R–8 at 2.) That
afternoon, MSHA had received safety complaints regarding conditions at Mine No. 77. (Tr.
29–30, 413–14, 881–82; Ex. G–18 at 2; Ex. R–8 at 2.) Although Inspector Ashworth had
already worked a full shift inspecting Mine No. 77 that day, he returned to the mine with
Inspector Stanfield to investigate those safety complaints, which included drug use at the mine,
unsafe roof conditions, improper ventilation, extended cuts, and oil on mine machinery. (Tr.
29–30, 413–15, 881–82; Ex. G–18 at 1, 15–20.)
When Stanfield and Ashworth arrived on the 11 Section, the double-headed roof bolter
was operating in the No. 2 entry and the continuous miner was energized in the No. 1 entry. (Tr.

36 FMSHRC Page 552

36, 423–25, 438, 441–42, 452, 812–14, 816, 859; Ex. G–17.) After Ashworth and Stanfield
completed a search of the miners for drugs and smoking materials and found nothing, they began
their inspection with an imminent danger run through the 11 Section. (Tr. 34, 415–17.)
Stanfield headed to the No. 6 entry, while Ashworth started in the No. 1 entry. (Tr. 34, 228,
233.) Stanfield estimated that eight miners were working on the 11 Section at the time. (Tr. 39.)
c.

Order No. 4220150 – The Ventilation Violation

As Inspectors Ashworth and Stanfield gathered the miners to complete their search for
drugs and smoking materials, Ashworth observed that required deflector curtains in the No. 2
and No. 3 entries were missing. (Ex. G–28 at 4.) Ashworth also observed continuous miner
operator Darrell Cress step into the intersection of the last open crosscut and the No. 1 entry, and
begin installing a line curtain. (Tr. 417–18, 781–82, 793, 797; Ex. G–28 at 5.) Ashworth
“informed [Cress] that it was too late [to rehang the curtain]” and instructed him to back the
miner up under the supported mine roof. (Ex. G–28 at 5; see also Tr. 793.) Ashworth further
testified that he observed coal dust suspended in the air in the No. 1 entry.6 (Tr. 418–20, 423–24,
426.)
After Ashworth and Stanfield completed their search for drug and smoking materials and
gave a safety talk, Ashworth next took air readings to measure the velocity of air flowing
through Blue Diamond’s ventilation system. (Tr. 822; Ex. G–28 at 8–9; Ex. R–29.) Ashworth
testified that he took three air readings between the first and second entry of the last open
crosscut. (Tr. 440.) At approximately 7:30 p.m.—more than 12 hours after his work day
began—Ashworth measured the air velocity to be 7,611 CFM, which is below the 9,000 CFM
required in the July 26 Plan. (Tr. 445, 822; Ex. G–28 at 8–9.) Superintendent Williams
contends that he told Ashworth that he was in the wrong place to take an air reading. (Tr.
858–59, 891–92.) Moreover, Jent testified that he told Ashworth that he had sufficient air on the
section when he started work that shift. (Tr. 823–24.) At the time of the hearing, Ashworth did
not recall either conversation. (Tr. 444–45, 528.)
According to Ashworth, at this point, Jent and the 11 Section crew “began to install[]
ventilation controls across the section.” (Ex. G–28 at 11.) Meanwhile, Ashworth examined a
previous garbage accumulation violation. (Id.) At 9:45 p.m., he took another air reading at the
same location in the last open crosscut, which measured 7,718 CFM. (Tr. 830; Ex. G–28 at 9,
12.) Although Ashworth does not recall doing so, Shepard, Jent, and Superintendent Williams
each credibly testified that Ashworth then directed Blue Diamond personnel to hang and relocate
6

Both Williams and Cress testified that they did not see any coal dust in the air; instead
they asserted the substance was mist from the energized continuous miner’s water sprays. (Tr.
783–84; 871–72.) Further, Inspector Stanfield admitted that he saw no coal dust in the No. 1
entry when he arrived on the 11 Section or prior to the drug search. (Tr. 234.) Based on the
evidence before me, I determine that the Secretary has not met his burden of proving that coal
dust was present in the No. 1 entry when Ashworth and Stanfield arrived on the 11 Section.

36 FMSHRC Page 553

certain ventilation curtains. (Tr. 555, 788–89, 799–800, 830–31, 887–88, 905; Ex. R–28; Ex.
R–29; Ex. R–30.) Shortly thereafter, at 10:00 p.m., Ashworth took a third reading in that same
location, measuring the air flow to be 9,648 CFM. (Tr. 446, 519; Ex. G–28 at 12, 15.)
After finding sufficient air in the last open crosscut, Ashworth then took an air reading at
the end of the newly-installed line curtain in the No. 1 entry at 11:00 p.m. (Ex. G–28 at 13–15;
Tr. 454.) He recorded an air velocity of 2,066 CFM. (Ex. G–28 at 14–15; Tr. 454.)
Based on his observations on the 11 Section, Inspector Ashworth issued Order No.
4220150 alleging a violation of 30 C.F.R § 75.370(a)(1):
The operator is not complying with the Ventilation Plan, approved
07-26-2005 on the 011 MMU. The following hazards are present:
1). The operator is failing to maintain the minimum amount of air
required in the last open crosscut, when measured with a[n]
anemometer only 7,611 CFM was present[;] 2). The continuous
miner was being operated in the No. 1 right crosscut approximately
forty[-]five[-]feet inby the end of the line curtain. There is no
perceptible air movement present behind the end of the line
curtain. Visible suspended coal dust is present at the time this
condition was observed. After repeated attempts to repair
ventilation controls it took approximately 2 1/2 hours to achieve
the minimum 9,000 [CFM] in the last open crosscut. After repairs
were made on [sic] only 9,648 [CFM] was obtained. After an
additional hour the minimum requirement of 5,500 [CFM] at the
end of the line curtain could not be obtained. Only 2,066 [CFM]
was measured at the end of the line curtain. When these conditions
were initially observed a methane check with a hand held gas
detector indicate[d] that .55% methane is present at the inby corner
of the No. 1 right crosscut being mined.[;] 3). Both the No.2 and
No.3 heading are not being provided with ventilating deflector
curtains. The roof bolter is being operated in the No. 2 right
crosscut which also requires a deflector curtain. The No. 2
heading is approximately 105 feet deep and the No. 3 heading is
approximately 110 feet deep inby the last crosscut. A methane
check with a hand held gas detector indicate[d] .25% methane is
present in the No.2 at the last row of permanent roof supports,
.05% methane is present in the face area of the No. 3 entry. 4).

36 FMSHRC Page 554

No check curtains are present in the [N[o. 2 thru [N]o. 5 entries
that are necessary to direct ventilation across the section.[7] This
mine is on a 15 day spot inspection requirement for excessive
methane liberation. This mine has been cited numerous time[s] for
similar conditions. All of the conditions present would be obvious
to the most casual of observers. The foremen present on the active
section is a certified foreman who is trained and skilled in the
recognition of hazardous conditions. Management engaged in
aggravated conduct constituting more than ordinary negligence by
deeming production more important than the miners[’] health. This
violation is an unwarrantable failure to comply with a mandatory
standard.
(Ex. G–27 at 1–2.) Ashworth marked “permanently disabling injuries” as “highly likely,”
designated the violation as S&S, and characterized Blue Diamond’s negligence as a “reckless
disregard.” (Id.) He also alleged that eight miners would be affected. (Id.)
d.

Further Findings of Fact – Ashworth’s Last Open Crosscut Air
Measurements

Inspector Ashworth measured the air velocity in the 11 Section’s last open crosscut three
times, and his first two readings found insufficient velocity to satisfy Blue Diamond’s July 26
Plan requirements. Ashworth claims he took all three of these readings while positioned
between the first and second entry of the new panel. (Tr. 440, 443–46, 511.) Ashworth’s
inspection notes, however, indicate that he took his air reading between the second and third
entry of the panel. (Ex. G–28 at 9.) According to Superintendent Williams and Section Foreman
Jent, Ashworth was between the second and third entry when he took air readings. (Tr. 822–23,
858–59, 869–70; Ex. R–29; Ex. R–30.)
Ashworth, Inspector Stanfield, and Williams each testified that an inspector’s location
within the last open crosscut affects the amount of air that is ultimately measured. (Tr. 226–27,
515–16, 893–94.) Ashworth also stated that an air reading between the second and third entries

7

During cross-examination, Ashworth admitted that the way he worded this fourth
allegation was a “mistake.” (Tr. 543–44.) Although Ashworth testfied that he would modify
and “totally reword” that allegation (Tr. 543), the Secretary made no motion at the hearing or
since to amend the citation. Accordingly, I dismiss the fourth allegation included in Order No.
4220150.

36 FMSHRC Page 555

would result in a lower measured velocity than if taken between the first and second entries.8
(Tr. 515–16.) Yet, as Ashworth and Jent made clear, the proper location to measure air velocity
is difficult to determine on a new section. (Tr. 516, 562, 828–29.) Thus, Ashworth’s position
within the crosscut will critically affect the weight I afford those readings when assessing the
Secretary’s allegations.
The testimony and evidence before me demonstrate that Ashworth took his first two air
readings in the last open crosscut while positioned between the second and third entries. Most
importantly, Ashworth’s own contemporaneous inspection notes also indicate that he took his air
readings between the second and third entry of the panel. (Ex. G–28 at 9, 15.) At the hearing,
Ashworth testified that his inspection notes incorrectly recorded the location where he took his
air readings (Tr. 443–44, 511), and I believe that Ashworth was testifying to the best of his
recollection. However, I note that Ashworth was the only person present who had worked
double-duty that day. Thus, it seems likely that he might not accurately remember his location
on the confusing, new 11 Section. Accordingly, I credit Ashworth’s contemporaneous notes
over his testimony nearly four years after the alleged violation.9 Moreover, Williams and Jent’s
testimony about Ashworth’s position corroborate what Ashworth himself wrote at the time of his
inspection. Accordingly, I find that Ashworth’s first and second air readings were taken between

8

The parties disagree about the proper location for an air reading with the ventilation
controls set up as they were when Ashworth and Stanfield arrived on April 5, 2007. (See Sec’y
Br. at 70–71; Resp’t Br. at 6–7; Jent Br. at 4–5.) Given Ashworth’s admission that an air reading
taken between the second and third entries would result in a lower measured velocity than an air
reading taken between the first and second entries, I do not need to determine the proper position
in which to measure air velocity in this case. Even using the Secretary’s theory of the case, a
reading between No. 2 and No. 3 entries would decrease the measured velocity.
9

The Secretary argues that the commotion on the 11 Section and Ashworth’s long day at
the mine made him more apt to make a mistake in his notes. (Sec’y Br. at 70 n7.) However,
these same factors would also make Ashworth more likely to have been confused in the newly
developed section, and to inaccurately recall his precise location for his air readings four years
later.
I also reject the Secretary’s argument that Inspector Stanfield “corroborated” Ashworth’s
testimony about his location within the crosscut when taking his air readings. (Sec’y Br. at 70
n.7.) Stanfield explicitly testified that he did not know exactly where Ashworth was when he
took his air reading. (Tr. 216–17, 237–38.)

36 FMSHRC Page 556

the No. 2 and No. 3 entries of the last open crosscut. I also find this location resulted in
inaccurate air measurements.10
2.

Violation of Ventilation Plan

By Blue Diamond’s own admission, its failure to maintain deflector curtains in the No. 2
and No. 3 entries constitutes a violation of its July 26 Ventilation Plan. (Resp’t Br. at 11.) The
Secretary, however, alleges that two additional conditions violated the plan: (1) insufficient air
flow in the last open crosscut of the 11 Section; and (2) insufficient air flow behind the line
curtain in the 11 Section’s No. 1 entry. (Sec’y Br. at 68–72.) Despite Blue Diamond’s
admission, I will address these two additional conditions because they have bearing on my
conclusions regarding the Secretary’s gravity, negligence, and flagrant allegations.
The Secretary relies solely upon Inspector Ashworth’s air readings and observations to
support his allegation that Blue Diamond did not maintain adequate air flow in the last open
crosscut of the 11 Section. Yet, as I explained above, I find Ashworth’s air readings were
inaccurate and underestimated the velocity of air on the 11 Section. Most critically, the
Secretary provides no other basis for me to infer that the 11 Section had insufficient air flow
through the last open crosscut. Given the erroneous location of Ashworth’s air readings and
based on the testimony and evidence before me, I conclude that the Secretary has not met his
burden of proving that air flow in the last open crosscut was insufficient.
Second, Ashworth’s air reading behind the line curtain in the No. 1 entry demonstrates
that the required 5,500 CFM of air was not present at the time Ashworth took his measurement.
Blue Diamond does not dispute the accuracy of the measurement; instead, Blue Diamond
contends that the ventilation controls in place at the time of Ashworth’s line curtain
measurement do not reflect the ventilation controls Blue Diamond had in place when Ashworth

10

Such a finding—and the inaccurate reading it would produce—would account for the
great disparity with the earlier air readings recorded on the 11 Section, including Ashworth’s
own April 4 air reading. (Ex. R–13 at 10(b); Ex. R–18.) Mining is a dynamic process, and I
recognize that recent compliance does not necessarily mean that conditions in the mine have not
changed. However, the Secretary did not produce any evidence of changed conditions in Mine
No. 77 that explain the great disparity between every other air reading taken April 4–5 and the
substandard air measurements Ashworth took after responding to the April 5, 2007, safety
complaint.
Moreover, prior to hearing, Blue Diamond raised collateral estoppel arguments regarding
air flow in the last open crosscut, which I denied in a published order. (Tr. 14; Ex. R–1; Resp’t
Br. at 2); see also Blue Diamond Coal Co., 32 FMSHRC 1511 (Sept. 17, 2010) (ALJ). Although
Respondent re-raised the issue at hearing and in its post-hearing brief (Tr. 14; Resp’t Br. at 2), I
need not address the issue because I do not credit Ashworth’s last open crosscut readings.

36 FMSHRC Page 557

and Stanfield arrived on the 11 Section. (Resp’t Br. at 10–11.) Thus, Respondent argues, Blue
Diamond did not violate its ventilation plan. (Id.)
Blue Diamond’s argument is appealing, and Ashworth’s changes to Respondent’s
ventilation controls will bear on my analysis of gravity and negligence. However, the Mine Act
is a strict liability statute, and operators are liable for violative conditions regardless of their
level of fault. See, e.g., Spartan Mining Co., 30 FMSHRC 699, 706 (Aug. 2008). Although
Ashworth mandated changes to Blue Diamond’s ventilation controls during his inspection,
Respondent remains liable for the conditions found on the 11 Section of Mine No. 77. Thus, I
determine that both Blue Diamond’s failure to provide 5,500 CFM of air behind the line curtain
in the 11 Section’s No. 1 entry and the missing deflector curtains each violated its July 26 Plan.
I therefore conclude that Blue Diamond violated 30 C.F.R. § 75.370(a)(1).
3.

Gravity and S&S Determinations

Blue Diamond’s violation of section 75.370(a)(1) establishes the first element of the
Mathies test for an S&S violation. Inspector Ashworth credibly identified a methane explosion
and pneumoconiosis as the hazards to which Blue Diamond’s violation contributed. (Tr. 427,
435–37, 462, 464, 566). He also credibly testified that eight miners would be affected. (Tr. 468;
see also Tr. 38–39; Ex. G–28 at 7.) I do not doubt that either of these hazards would be
reasonably likely to cause permanently disabling or fatal injuries to all eight miners on the
section.11 Thus, I determine that the third and fourth Mathies elements are satisfied.
This case turns on whether Blue Diamond’s violation contributed to a discrete safety
hazard—in this case a possible methane explosion or pneumoconiosis. See Black Beauty Coal
Co., 34 FMSHRC 1733, 1739–43 (Aug. 2012) (discussing the second, third, and fourth elements
of the Mathies test); Musser Eng’g, Inc., 32 FMSHRC 1257, 1280 (Oct. 2010) (“The second
element in Mathies requires consideration of whether a discrete safety hazard—that is, a measure
of danger to safety—is contributed to by the violation. There is no requirement of ‘reasonable
likelihood.’ The third element is whether there is a reasonable likelihood that the hazard
contributed to will result in an injury.”) Here, the Secretary’s evidence does not demonstrate
that either the insufficient line curtain ventilation or missing ventilation curtains actually
contributed to—or provided a measure of danger to safety—either of the hazards Ashworth
identified in Order No. 4220150. Cf. Big Ridge, Inc., 35 FMSHRC 1525, 1528 (June 2013)
(affirming ALJ’s determination that Mathies second element was satisfied where coal
accumulations and an ignition sources were present).

11

Blue Diamond contends that the violative conditions would only affect seven miners
because the eighth—electrician Mike Pease—rode to the section with Inspector Ashworth,
Inspector Stanfield, and Superintendent Williams on the day of the inspection. (Resp’t Br. at 14
n.10.) However, Pease was late to work that day. (Tr. 881.) In the course of continued mining
operations, I find that a ventilation violation would affect a full crew of eight miners.

36 FMSHRC Page 558

First, the Secretary presented no evidence from which I can conclude that the insufficient
air flow behind the line curtain would contribute either to methane explosion or pneumoconiosis.
I recognize that Mine No. 77 liberated methane, that methane gas wells were located in the area,
and that continuous miners generally produce coal dust in the course of normal mining
operations. Yet the conditions under which Inspector Ashworth took his line-curtain
measurement were not normal. Based on the credible testimony of Shepard, Jent, and Williams,
I find that Ashworth’s line curtain air measurement occurred after he had directed Blue Diamond
to make several changes to its ventilation controls. See discussion supra Part V.A.1.c. By that
point, Blue Diamond had not mined coal on the 11 Section for several hours. Although methane
and coal dust might accumulate if production resumed with those reconfigured ventilation
controls, there was no likelihood of that happening with Ashworth on the scene and having
issued a section 104(d)(2) order. Consequently, the Secretary has not demonstrated that the
insufficient air velocity behind the line curtain—taken after the inspector’s own actions changed
the ventilation controls—contributed to either the discrete safety hazard of a methane explosion
or pneumoconiosis.
Second, the conditions on the 11 Section were not dangerous when Ashworth found the
deflector curtains to be missing. Based on all the evidence, the Secretary has not met his burden
of proving that any dangerous levels of respirable coal dust were present in any entry of the 11
Section, or that the measured methane levels on the 11 Section were abnormal on either April 4
or April 5. (Tr. 238, 461, 463, 504–05, 531.) Furthermore, Ashworth’s methane readings from
April 5 and 6 were below the explosive range for methane. (Tr. 431, 898–99.) As Ashworth
explained, the April 5 and 6 readings were “ well within the range of not requiring any additional
measures.” (Tr. 531.) In addition, Jent had already identified the missing curtains12 and had
instructed the roof bolt operators to rehang these curtains. I therefore determine that the missing

12

In his direct exam, Jent specifically characterized these curtains as “line curtains”
rather than “deflector curtains.” (Tr. 814.) However, the record as a whole suggests that the
nomenclature of curtains is a fluid concept. For example, Ashworth testified that only one line
curtain exists, and it is located wherever the continuous miner is operating. (Tr. 471; see also Tr.
541–42 (conflating deflector curtains with line curtains).) Yet Williams characterized the
curtains in the No. 4, No. 5, and No. 6 entries as “line curtains” when no continuous miner was
present. (Tr. 857–58; Ex. G–17.) Likewise, miner operator Darrell Cress observed that the
continuous miner was present in the No. 2 entry when he arrived. (Tr. 793–94.) He indicated
that he tore down that “deflector curtain” when he moved the continuous miner into the No. 1
entry. (Tr. 793–94.) Based on the entirety of the record, I infer that the “line curtains” that Jent
ordered to be rehung in the No. 2 and No. 3 entries were, in fact, the “deflector curtains” the
Secretary claims were missing in those entries.

36 FMSHRC Page 559

deflector curtains would have been rectified in the course of on-going mine operations before
any coal dust or methane accumulated in the No. 2 or No. 3 entries.13 Inspector Ashworth’s
instructions to the contrary precluded that, and his changes to the ventilation controls at the end
of a long workday created conditions that did not exist at the time of initial inspection.
Consequently, the Secretary has not proven that Respondent’s inadequate line curtain
ventilation or missing deflector curtains would contribute to methane explosion and
pneumoconiosis hazards, and I determine that the Secretary has failed to satisfy the second
element of the Mathies test. Accordingly, I conclude that this violation was not S&S and Order
No. 4220150 is MODIFIED to remove the S&S designation.
4.

Negligence and Unwarrantable Failure Determinations

The Secretary claims that Respondent’s negligence in this case is a “reckless disregard”
of its ventilation plan and characterizes its conduct as an unwarrantable failure. Blue Diamond
asserts that Order No. 4220150 should be modified to a section 104(a) non-S&S citation and the
level of negligence should be modified to “low.” (Resp’t Br. at 20–21, 64.)
The facts and evidence before me do not support the Secretary’s reckless disregard and
unwarrantable failure allegations. Looking at the Commission’s aggravating factors for
unwarrantable failure analysis, several weigh strongly in Blue Diamond’s favor. First, the cited
conditions were not highly dangerous given that no active mining was taking place at the time.
The Secretary simply failed to demonstrate the presence of coal dust or dangerous levels of
methane, and provided no rationale for believing these conditions would lead to accumulations
of dust or methane in the course of continued mining operations. Second, the violative
conditions at issue existed for a short amount of time. Third, the line curtain reading and
deflector curtain conditions did not extend throughout the entire 11 Section. Fourth, both Cress
and Jent took steps to abate violative conditions when they identified missing curtains. Finally,
there is no indication that Blue Diamond’s agents knew these conditions existed prior to Jent’s
discovery of the missing curtains in entry No. 2 and entry No. 3.
I recognize that the missing deflector curtains were obvious. Moreover, the Secretary
presented evidence in the form of violation history reports and copies of past citations and orders
that Blue Diamond has received many citations for ventilation- and curtain-related violations.
13

Pointing to a citation for trash that had not been abated, the Secretary also contends
that the “culture at Mine [No.]77 greatly increased the likelihood that the violative conditions
described in Order No. 4220150 would result in fatal injury to miners.” (Sec’y Br. at 78; see
also G–28 at 11; Tr. 466–67, 879.) Although Blue Diamond should have abated the citation, I
refrain from drawing the inference that failing to clean a trash bucket represents a “culture” that
would ignore ventilation controls.

36 FMSHRC Page 560

(Ex. G–1; Ex. G–2; Ex. G–4; Ex. G–5; Ex. G–7; Ex. G–8; Ex. G–13; Ex. G–14.) These past
violations suggest that greater efforts may be necessary to comply with its July 26 Plan.
However, when weighing the mitigating factors above, I conclude that such evidence is
insufficient to characterize Blue Diamond’s conduct as an unwarrantable failure.
Likewise, the Secretary has not proven Blue Diamond’s negligence to have been a
“reckless disregard.” The Secretary’s standards define negligence as “conduct, either by
commission or omission, which falls below a standard of care established under the Mine Act to
protect miners against the risks of harm.” 30 C.F.R. § 100.3(d). These standards indicate that
“reckless disregard” is found where “[t]he operator displayed conduct which exhibits the absence
of the slightest degree of care.” Id. at Table X. Moreover, the standards prescribe moderate
negligence where “[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” Id.
Given the evidence before me, I conclude that the Secretary has not satisfied his burden
of showing that Blue Diamond acted without the slightest degree of care. In fact, Blue
Diamond’s conduct in this case suggests the contrary. Inspector Ashworth took his line curtain
reading after he directed specific changes to the ventilation controls. Operators are bound not to
interfere with an inspector’s instructions, and Blue Diamond’s adherence to Ashworth’s
directions does not constitute a reckless disregard for its July 26 Plan. Further, Section Foreman
Jent specifically directed his roof bolt operators to rehang curtains in entry Nos. 2 and 3
immediately after finding that the curtains had been inadvertently torn down, before Ashworth
arrived on the section. Moreover, mere sources of methane or coal dust accumulation, alone, do
not demonstrate the dangers the Secretary contends; otherwise, no operator would be able to
work in any coal mine in light of these omnipresent dangers. Similarly, the mere existence of
previous ventilation curtain violations does not prove indifference on the part of Blue Diamond.
Nonetheless, Blue Diamond had a responsibility to adhere to its July 26 Plan, no matter
how common or uncommon it is for its machine operators to inadvertently tear down curtains.
(See Resp’t Br. at 11.) Although I do not impute the negligence of rank-and-file miners to Blue
Diamond, its agents have a duty to ensure that training and procedures address this known
problem. However, Jent’s steps to immediately address that condition significantly mitigate
Blue Diamond’s negligence. Indeed, prompt action to abate a violative condition is precisely the
type of behavior the Mine Act aims to encourage. Accordingly, I determine that Blue
Diamond’s conduct constituted “moderate” negligence.
Based on all of the above, Order No. 4220150 is MODIFIED to remove the
unwarrantable failure designation and change the cited level of negligence to moderate.
5.

Reckless and Repeated Flagrant Designations under Section 110(b)(2)

As I noted in Stillhouse, a finding of S&S and unwarrantable failure does not necessarily
imply a “reckless” designation under section 110(b)(2) of the Mine Act. 33 FMSHRC at 800

36 FMSHRC Page 561

(“The unwarrantable failure and S&S language of section 104(d)(1) of the Mine Act does not
elucidate Congress’s intent on the meaning of a flagrant violation.”) Yet the converse may be
true. In fact, my conclusion that Order No. 4220150 is neither S&S nor unwarrantable strongly
suggests the Secretary has not satisfied his burden of proving his flagrant allegations. Indeed, it
is difficult to envision sustaining a reckless or repeated flagrant allegation when the underlying
violation is neither S&S nor unwarrantable.
Here, the Secretary has not demonstrated any of the elements of a reckless failure.
Ashworth’s line curtain reading occurred after Blue Diamond complied with his direction to
modify ventilation controls in response to the inspector taking his air readings in the wrong
location of the mine. Likewise, Jent instructed roof bolt operators to rehang curtains in entry
Nos. 2 and 3 before Ashworth’s arrival on the 11 Section. Both actions indicate Blue Diamond
did not consciously or deliberately disregard risks associated with these conditions and took
reasonable steps to address them. Moreover, the Secretary presented no evidence that Blue
Diamond’s agents knew or should have known of these conditions until Jent discovered the
missing deflector curtains. Further, there is no indication that any methane or coal dust had
accumulated in the No. 2 and No. 3 entries. Accordingly, I determine that the Secretary has not
demonstrated recklessness, a failure to make reasonable efforts, a known violation, or a
reasonable expectation that the conditions would have caused death or serious bodily injury for
the purposes of section 110(b)(2).
Although the Secretary introduced evidence of past ventilation violations at Mine No. 77
in support of his repeated failure designation, I need not address their relevance or probity. The
Secretary’s definition of “repeated” conduct presupposes that section 110(b)(2)’s “other criteria”
are satisfied. See discussion supra Part IV.F.2. Because the Secretary has not demonstrated that
the conduct underlying Order No. 4220150 constituted a failure to make reasonable efforts to
eliminate a known violation or reasonably could have been expected to cause death or serious
bodily injury, I do not need to consider whether the Secretary’s evidence demonstrates a
previous failure to make reasonable efforts to eliminate a previous violation. Even under his
own definition, the Secretary cannot prove a repeated violation without demonstrating that the
“other criteria” have been satisfied.
Based on the facts before me, I conclude that the Secretary has failed to prove Blue
Diamond’s conduct was recklessly or repeatedly flagrant under section 110(b)(2) of the Mine
Act. Accordingly, Order No. 4220150 is MODIFIED to remove the flagrant designation.
6.

Penalty

Under section 110(i) of the Mine Act, I must consider six criteria in assessing a civil
penalty, including the operator’s history of previous violations; the appropriateness of the
penalty relative to the size of the operator’s business; the operator’s negligence; the penalty’s
effect on the operator’s ability to continue in business; the violation’s gravity; and the

36 FMSHRC Page 562

demonstrated good faith of the operator in attempting to achieve rapid compliance after
notification of a violation.14
30 U.S.C. § 820(i).
The Secretary initially sought a penalty of $187,500 for Order No. 4220150, and nothing
in the record suggests the proposed penalty is either inappropriate for the size of Blue Diamond’s
business or would infringe on Blue Diamond’s ability to remain in business. However, I have
modified the citation to remove the S&S, unwarrantable, and flagrant designations. Moreover, I
have concluded that Blue Diamond’s negligence was moderate. Of the 914 number of violations
in Respondent’s history of violations report, 78 involved 30 C.F.R. § 75.370(a)(1). (Ex. G–1;
Ex. G–2.) Moreover, once this order was issued, nothing suggests that Respondent failed to
make a good faith effort to achieve rapid compliance with the safety standard. Indeed, Blue
Diamond followed Ashworth’s instructions. Considering all of the facts and circumstances set
forth above, I hereby assess a civil penalty of $3,000.00.
B.

Section 110(c) – Gary Jent – Ventilation Order – April 5, 2007

The Secretary seeks a separate civil penalty against Section Foreman Gary Jent for his
conduct in connection with Order No. 4220150. Based on the facts before me and my
conclusions of law regarding Order No. 4220150, the Secretary has not proven that Jent is
personally liable under section 110(b)(2).
First, I have found that Inspector Ashworth’s air readings inaccurately measured the
amount of air flowing through the last open crosscut on the 11 Section. Likewise, I have found
that coal dust was not present in the No. 1 entry when Ashworth and Inspector Stanfield arrived
on the section. In light of those facts, Jent would reasonably have believed the 11 Section was
adequately ventilated. Moreover, his affirmative steps to address the problems he encountered
demonstrate that he did not fail to act. Finally, Blue Diamond’s insufficient line curtain
ventilation did not occur until after Ashworth altered Respondent’s ventilation controls.
Accordingly, Jent had no reason to know of the violative condition.
Based on the above, the Secretary has not proven that Jent failed to act or engaged in any
aggravated conduct. Thus, I conclude that Jent is not liable for civil penalties under section
110(c). This violation is VACATED and the proceeding is DISMISSED.

14

Blue Diamond suggests that the Secretary’s specially-assessed penalties should be
stricken from the record because they prejudice my penalty assessments in this case. (Tr.
570–73; Resp’t Br. at 62–64.) Section 110(i) specifies the factors for me to consider and
commits the penalty determination to my discretion. See 30 U.S.C. § 820(i). I have taken Blue
Diamond’s concerns under advisement, and the penalties I assess are appropriate based on the
evidence before me and the criteria outlined in section 110(i).

36 FMSHRC Page 563

VI. ANALYSIS, FURTHER FINDINGS OF FACT, AND CONCLUSIONS OF LAW —
ROOF CONTROL VIOLATIONS
A.

Roof Control Experts – Dr. Newman and Mr. Gauna – Credibility Determinations –
Impact of Testimony
1.

Witness Background

Blue Diamond presented testimony and an expert report from Dr. David A. Newman,
who is the President of Appalachian Mining and Engineering. (Tr. 664; Ex. R–21.) In rebuttal,
the Secretary presented the expert testimony and a report from MSHA Mining Engineer Michael
Gauna. (Tr. 1063; Ex. G–30; Ex. G–31.) Both witnesses have advanced degrees in mining
engineering and technology, and extensive experience involving roof control. (Tr. 664–70,
1063–66; Ex. R–21; Ex. G–31.) Each has also visited Mine No. 77 in the past, but neither
examined the specific roof conditions at issue in any of the three roof control cases before me.
(Tr. 671–73, 766–67, 1068–69.) In 1995, Newman also took a core sample of roof from Mine
No. 77, which he called his KRP-7 core sample. (Tr. 671–73, 753, 755.)
2.

Credibility determinations and impact of testimony

Citation No. 7505299 and Order Nos. 7521758 and 7524542 each allege dangerous
violations of Blue Diamond’s roof control plan. See discussion infra Parts VI.B, VI.C, and
VI.D. As one might expect, Dr. Newman and Mr. Gauna reached contradictory conclusions
regarding the hazards presented by nearly every item listed in each citation or Order. Each
testified credibly to his interpretation of the condition or practice cited. Because neither expert
observed any of the conditions firsthand or visited the parts of the mine where the alleged
violations occurred, Newman and Gauna based much of their opinions on the text of the citation
or orders, the Inspector’s notes, the testimony of other witnesses, and their experience with mine
roofs at Mine No. 77 and other mines. Their testimony regarding the mechanics of roof control
is illustrative, but I accord little weight to the experts’ ultimate opinions on any given condition
because neither viewed the conditions in question. Such competing conjecture, no matter how
well-intentioned and well-informed, is not a substitute for a credible, first-hand observation from
an Inspector or miner trained to identify violative conditions and assess their gravity.
Yet, the parties’ opinions were not all so limited. Dr. Newman provided an Analysis of
Roof Bolting Systems (ARBS) and fixed beam examination of several items listed in the
Secretary’s Citation and Orders. (Ex. R–22; Ex. G–38.) Newman’s report and testimony
suggest that the conditions in question do not present roof fall hazards.
However, Gauna highlighted significant weaknesses in Newman’s ARBS analyses. Most
importantly, Gauna noted that Newman’s ARBS input assumptions did not reflect the reality at
Mine No. 77. According to Superintendent Williams and Section Foreman Shepherd, Blue
Diamond used five-foot resin bolts that measured either five-eighths of an inch or three-fourths

36 FMSHRC Page 564

of an inch in diameter. (Tr. 641, 922.) However, Newman’s ARBS analyses assumed five-foot
resin bolts that were seven-eighths of an inch in diameter, which are also known as “seven bar”
bolts. (Tr. 1084; Ex. R–22 at. 2–5 (listing “Bolt diameter” as “#7 bar”).) Gauna credibly
testified that the roof bolt diameter input “make[s] a big difference [in an ARBS analysis because
the ARBS values are ] . . . directly proportionate with the strength of the bolt, which is dependent
on the diameter of the bolt.” (Tr. 1084–85.) He further explained that “a smaller bolt” would
“greatly diminish[]” the “actual ARBS” values, and testified that the thicker diameter input
would make Dr. Newman’s analyses incorrect. (Tr. 1085, 1090.)
Given the evidence before me, I have significant doubts about the validity of Newman’s
ARBS findings. Although I believe Newman’s analysis was made in good faith, his mistaken
inputs—and their concomitant impact on his ARBS results—are sufficiently troubling that I am
left with no choice but to accord them no weight.
I also have serious doubts about Newman’s fixed beam analysis. First, Gauna suggested
that fixed beam analysis is inappropriate for unbolted extended cuts. (Tr. 1120–21.) According
to Gauna, fixed beam analysis is “designed to look at the span across an opening and that span
has been used rib to rib, or cross[cut] to crosscut, pillar to rib. In other words, it’s used to show
what’s actually being spanned.” (Tr. 1120.) However, one end of Newman’s longitudinal beam
does not extend to a fixed point (like a coal pillar). (Tr. 1120–21, 1150.) Although fixed beam
analysis is “very appropriate for going rib to rib span” it is “not appropriate to use it in the coal
face to the row of bolts.” (Tr. 1121; see also Tr. 1125, 1149.)
Second, Newman’s fixed beam analysis only lists safety factors for beams of shale, black
shale, and bolted roof. Yet it is unclear how closely this mirrors the roof composition in the case
before me. As Newman himself admitted about the KRP-7 core sample: “It is representative of
the Elkhorn Three [seam]. It may not be the immediate roof, I don’t know that the immediate
roof in that area is exactly that, and the thickness []or the right properties, I don’t know them to
be exactly that, but what it is for this type of analysis is the closest information I’ve got from an
actual drill hole . . . . So, you know, essentially I’m using that in extrapolating into this area to
say on a comparative basis.” (Tr. 755.) For example, the 12 Section roof at issue in Order No.
7524542 was laminated sandstone, which is sensitive roof. See infra Part VI.C.4. Indeed, Gauna
specifically suggested that the KRP-7 sample was not a proper comparison for the roof in Order
No. 7524542 because it contained no components of laminated sandstone. (Tr. 1116–17.)
In view of the above, I have serious concerns about the qualitative credibility of
Dr. Newman’s fixed beam analyses. I recognize Dr. Newman is a qualified expert in roof
control and testified that a fixed beam analysis is an appropriate method for measuring the
danger of an unbolted roof. However, Gauna’s explanation of fixed beam analysis, coupled with
my reservations about the comparative utility of the KRP-7 core sample, weighs strongly against
the probative value of Dr. Newman’s fixed beam analyses. Given these concerns, I accord no
weight to Dr. Newman’s fixed beam analyses.

36 FMSHRC Page 565

B.

Order No. 7521758 – 16 Items/Roof Control – April 5, 2007
1.

Findings of Fact

The same day Inspector Ashworth issued Order No. 4220150, see supra Part V.A.1,
Inspector Stanfield also examined roof control conditions on the 11 Section. After completing
his search for drugs and smoking materials, Stanfield began an imminent danger run in the 11
Section. (Tr. 34, 233–34, 417, 883–84.) While making his way across the section, Stanfield
identified sixteen different items he believed violated Blue Diamond’s September 7 Roof
Control Plan. (See G–19.) The items included conditions affecting roof bolt spacing, conditions
involving roof and rib integrity, conditions involving missing equipment, and conditions
involving permissible entry widths. (Id.; Ex. G–32; Ex. G–33; Ex. G–34; Ex. R–31.) Stanfield
characterized these conditions as obvious. (Tr. 79–80, 90, 101–02, 119–20.) Depending on the
item, these conditions had lasted from a few hours to several weeks. (Tr. 58–59, 89–90, 79–80,
102, 107, 109, 111, 115, 110.) He also observed no indications that Blue Diamond made any
efforts to correct the cited conditions. (Tr. 79, 90, 101–02,125.)
As a result of his inspection, Stanfield issued Order No. 7521758, alleging:
The operator failed to comply with the approved roof control plan
(dated 09/07/2006) on the 011/MMU, in that;
(1) #6 entry at the intersection of the last open crosscut, a pressure
crack (lateral displacement) is present in the immediate roof. This
crack has not been strapped. A roof drill test hole in the area
reflected a 10 inch crack. This is at Spad #3963[15]
(2) Just adjacent to Spad #3963, in the #6 right crosscut a roof
drill test hole reflected cracks in the mine roof at 49, 52, 63, and 65
inches. This area is bolted with 5’ [five foot] resin bolts.
(3) At the same location #6 right crosscut mobile equipment has
torn metal straps out. These have not been replaced
(4) #1 right cross cut adjacent to Spad #3740, the width measured
from 20 to 22 feet for approximately 20 feet. The approved plan
requires widths to be maintained at 19 feet.
(5) At Spad # 3754, #3 entry, one of the 10 feet cable bolts has the
head and bearing plate torn off. It has not been replaced.
(6) At Spad #3776, the 10 feet cable bolts have not been installed
as required in the H pattern. The plan requires three to be installed
across the center of the intersection, where the greatest roof stress
occurs. Only one has been installed at the center of the
intersection.
15

Spads are small, numbered pegs driven into the mine roof and used to show miners the
proper direction to mine. (Tr. 620–21, 980–82.)

36 FMSHRC Page 566

(7) Adjacent to Spad #3776, in the #3 right crosscut, on the outby
rib the distance between installed roof bolts measured 56 inches.
(8) At the same location as cited in item #7, loose hanging draw
rock of substantial size and weight is present. Most of this was
pulled at the time of the inspection. Additional supports in the
form of metal straps are needed to aid in controlling the draw rock
at this location.
(9) #5 right (just turned) the third row of bolts outby the face, on
the left rib, the first installed bolt in the third row is 56 inches from
the coal rib. The approved plan requires bolts to be installed 3 feet
[36 inches] from the coal rib.
(10) At the same location #5 right (just turned) the last two rows
of bolts are installed only four in a row. The approved plan
requires all bolts to be installed five in a row.
(11) At the same location (#5 right crosscut-just turned) the
distance between the installed bolts on the inby rib at the last two
rows is 56 inches. The approved plan requires the distance
between rows of bolts to be no more than 4 feet [48 inches].
(12) #4 left at the last open crosscut along the outby rib, five bolts
have been installed from 41 to 54 inches from the coal rib.
(13) At the last open crosscut between the #2 and #3 entries, along
the outby rib, 6 bolts measured 41 to 48 inches from the coal rib.
(14) At the 14th crosscut of the #11 belt, on the left side, facing
inby, a crib has not been installed
(15) At the 15th crosscut of the #11 belt, the installed cribs (4) are
not tight against the mine roof. Some of the crib blocks are turned
up on the side using only four inches of the wood for support,
instead of the 6 inches if it were used for maximum support.
(16) #1 right, at the last open crosscut the outby rib is loose,
(measuring approximately 3’ x 15’). This loose rib could easily
result in crushing injuries. This loose rib was taken down at the
time of the inspection.
The operator has recently received similar violations (warnings
from MSHA). This mine has a history of roof falls and problems
with roof and ribs. The cited condition is obvious and extensive.
The approved roof control plan only specifies the minimum roof
supports to be installed. All supports required by the approved
plan must be installed and properly maintained to fully protect
miners from the hazards associated with the falls of roof and/or
ribs. An agent of the operator conducts preshift and onshift
examinations on the 011/MMU, on three shifts daily.

36 FMSHRC Page 567

(Ex. G–19.) Stanfield marked “fatal” injuries as “highly likely,” designated the violation as
S&S, and characterized Blue Diamond’s negligence as a “reckless disregard.” (Id.) He
estimated the number of persons affected as 2. (Id.)
2.

Violation of Roof Control Plan

In their post-hearing briefs, the parties sequentially address each of the sixteen items
listed in this single order. (Sec’y Brief at 13–34; Resp’t Br. at 21–36.) However, Respondent’s
post-hearing brief contends that Order No. 7521758 “should be modified to a [section] 104(a)
non-S&S citation and the penalty should be substantially reduced.” (Resp’t Br. at 42.) Though
Respondent disputes the S&S, unwarrantable failure, and flagrant designations, its contention
that I modify the Order to a section 104(a) citation essentially concedes that Blue Diamond did
not comply with the terms of its September 7 Plan.16 Rather than follow the parties’ lead in
addressing each of these items individually, I therefore determine that Blue Diamond failed to
follow its approved roof control plan. Thus, I conclude that Blue Diamond violated 30 C.F.R.
§ 75.220(a)(1).
3.

Gravity and S&S Determinations

Blue Diamond’s violation of 30 C.F.R. § 75.220(a)(1) establishes the first element of the
Mathies test. This case again turns on the second element: whether Blue Diamond’s violation
contributed to a discrete safety hazard—in this case, a roof fall or falling draw rock. See Black
Beauty, 34 FMSHRC 1733, 1739–43 (Aug. 2012) (discussing the second, third and fourth
elements of the Mathies test). Sensing the importance of the safety hazards in this case, the
parties each enlisted an expert. Yet, I find neither expert’s opinion dispositive. I am therefore
left with the testimony and observations of Inspector Stanfield and Superintendent Williams17 to
discern whether Blue Diamond’s roof control violation contributed—or provided a measure of
danger to safety—to the hazards Stanfield identified.
As Stanfield specifically stated: “[T]he more areas that are not supported per the
approved roof control plan increases the likelihood of an accident . . . [These conditions extend]
16

The only exceptions to Blue Diamond’s admission of a violation appear to be the teninch crack identified in Item No. 1 (Resp’t Br. at 23) and the roof bolts listed in Item No. 13
(Resp’t Br. at 34). Moreover, Blue Diamond’s argument against an S&S finding is that none of
these individual items were dangerous because each was minor. See discussion infra Part
VI.B.3. Yet, the flip side of Blue Diamond’s approach is that even if I concluded that Item Nos.
1 and 13 did not violate the September 7 Plan, neither determination would affect my overall
conclusion regarding S&S. Accordingly, I need not determine whether items No. 1 and No. 13
were violations individually.
17

Both witnesses have extensive history working and inspecting coal mines, observed the
items in question, and are familiar with the type of roof present in Mine No. 77. (Tr. 25–27, 78,
141, 143, 157–58, 162, 175–77, 840–46, 915–16, 919–20, 1032.)

36 FMSHRC Page 568

throughout the 11 Section, and the more exposure, the more hazard, the more likelihood.” (Tr.
126.) In other words, Stanfield based his S&S designation on the cumulative contribution these
items made to the hazards of a roof fall or falling draw rock, rather than each individual item’s
individual contribution. Rather than quantifying the amount each condition contributed to a roof
fall or falling draw rock hazard, Stanfield proceeded on the theory that these items contributed to
a hazard when taken cumulatively.
Respondent’s defense amounts to a strategy of divide-and-conquer. Blue Diamond
repeatedly suggests that the Secretary did not present evidence of poor roof conditions in the 11
Section and points to the Secretary’s inability to quantify the amount each individual item would
contribute to a roof fall or falling draw rock. (Resp’t Br. at 22–36.) Thus, Blue Diamond hopes
I will infer that no hazards exist. But Blue Diamond’s arguments fundamentally misunderstand
Inspector Stanfield’s rationale for designating these conditions as S&S. Indeed, Williams’
testimony regarding the cited conditions missed the proverbial forest for the trees. Although he
was present for Stanfield’s testimony, Williams simply did not address Stanfield’s opinion that
these items, taken cumulatively, contributed to a hazard of roof falls and falling draw rock when
considered cumulatively.
Moreover, Stanfield’s opinion is based on facts he observed, and his experience entitles
that opinion to significant weight. Cf. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1279
(Dec. 1998) (relying on inspector’s opinion to conclude that substantial evidence supported the
ALJ’s S&S determination.) Further, the Secretary presented credible and uncontroverted
evidence of roof falls adjacent to the 11 Section. (Tr. 50–51, 77, 108, 127; Ex. G–16.) In
response, Blue Diamond made repeated reference to the roof conditions on an item-by-item
basis. However, I note that “no Commission case has required the Secretary to show adverse
roof conditions in a mine as a prerequisite to finding that a violation of a roof control plan is
S&S.” Elk Run Coal Co., 27 FMSHRC 899, 906 n.13 (Dec. 2005). Instead, poor roof
conditions merely provide indirect evidence that a roof fall or falling draw rock was reasonably
likely to occur. Thus, Mine No. 77’s history of roof falls very near to the 11 Section is similar,
indirect evidence that a roof fall or falling draw rock is reasonably likely to occur in the 11
Section. Given Stanfield’s credible opinion and the history of roof falls in the area, I am
convinced that the cited conditions contributed to a discrete safety hazard. I therefore determine
that the Secretary met his burden of proof on the second element of Mathies.
As to the third and fourth elements of the Mathies test, Inspector Stanfield credibly
testified that eight miners were present on the 11 Section at the time he issued Order No.
7521758. (Tr. 39, 106–07.) He also credibly testified that the hazards to which this violation
allegedly contributed—roof falls and falling draw rock—would be reasonably likely to cause
reasonably serious injuries. (Tr. 48, 56–57, 77, 86, 99, 105–06, 113, 124–26, 128, 211, 250.)
That roof falls and falling rock are highly likely to cause permanently disabling injuries, let alone
death, borders on tautology. I do not doubt that serious injuries or fatalities would occur if the
mine roof or draw rock fell on a miner during continued mine operations. Given the far-flung
conditions cited in Order No. 7521758, I also do not doubt that the violation affected at least two

36 FMSHRC Page 569

of the eight miners present on the 11 Section. Thus, I determine that the Secretary has satisfied
the third and fourth elements of the Mathies test and that at least two miners would be affected.
Based on my determination that the first and second elements have also been satisfied, I
conclude that this violation was appropriately designated as S&S.
4.

Negligence and Unwarrantable Failure Determinations

The Secretary designated Blue Diamond’s conduct as an unwarrantable failure and
characterizes its level of negligence as a reckless disregard. Based on the evidence before me,
the Secretary has not met his burden of proof for either allegation.
Here, Inspector Ashworth traveled the 11 Section on the day before Inspector Stanfield
issued Order No. 7521758 and examined the section for any “obvious” roof and rib hazards and
checked test holes, entries, and faces for cracks. (Tr. 497–505; see generally Ex. R–13.) He also
traveled with Section Foreman Jody Roberts as he checked test holes during his pre-shift exam.
(Tr. 508–09; Ex. R–13 at 11.) Yet, after spending “his whole day on the section,” Ashworth
indicated that “[r]oof control measures appear to be adequate.” (Tr. 505; Ex. R–13 at 12.)
Looking to the Commission’s aggravating factors for determining unwarrantable failure,
two factors strongly suggest that Blue Diamond’s conduct was not aggravated. First, the cited
conditions were not obvious. Ashworth’s failure to cite any of the cited conditions a day earlier
does not excuse Blue Diamond’s roof control violations, but it does suggest that Blue Diamond
need not have acted indifferently, recklessly, or with a serious lack of reasonable care to have
overlooked the conditions at issue. Indeed, Ashworth’s failure to cite any of the conditions on
the 11 Section and his testimony that he was looking for obvious violations indisputably limits
the alleged “obviousness” of the violative conditions. Second, the Secretary has not
demonstrated any actual knowledge of the violative conditions, and Ashworth’s failure to cite
these conditions mitigates Blue Diamond’s constructive knowledge of those conditions.
On the other hand, other unwarrantable failure factors point the other way. Although
roof control plans are detailed, expansive documents with wide-ranging application throughout a
mine, Blue Diamond’s history of previous violations provided Respondent with notice that the
Secretary required greater efforts at compliance. In addition, the conditions underlying Order
No. 7521758 extended throughout the newly-developed 11 Section. Blue Diamond’s violation
was also S&S, which indicated a significant level of danger. Finally, Stanfield credibly testified
that he saw no previous efforts to abate any of these conditions.
The Secretary suggests the length of time that some of these conditions may have existed
should have allowed Respondent enough time to identify their existence. (Sec’y Br. at 36.)
Although the Secretary’s suggested inference is logical, Ashworth failed to previously identify
these purportedly long-standing conditions on April 4. Again, MSHA’s failure to previously cite
these conditions does not excuse Blue Diamond’s responsibility under the Mine Act’s strict

36 FMSHRC Page 570

liability scheme. However, it somewhat explains Blue Diamond’s failure to readily identify
those conditions. Indeed, Ashworth himself observed Section Foreman Roberts’ on-shift exam,
but identified no shortcomings. Thus, although the length of time these conditions existed is an
aggravating factor, the failure of a trained MSHA inspector to observe what the Secretary has
characterized as an “obvious” violation at least somewhat mitigates its impact.
I recognize the significant danger these conditions presented, the notice provided to Blue
Diamond by its previous violations, and the extensive nature of these conditions. However,
Ashworth’s failure to identify or note even one of these conditions just one day beforehand
convinces me that Blue Diamond’s conduct does not rise to the level of recklessness,
indifference, or serious lack of reasonable care that would constitute an unwarrantable failure.
For these same reasons, I conclude that the Secretary has not met his burden of showing
Blue Diamond’s level of negligence was “reckless disregard.” As with his S&S designation,
Stanfield characterized Blue Diamond’s level of negligence based on the order as a whole, the
condition of the roof, and Blue Diamond’s history of violations. (Tr. 299–303.) He also
admitted that he would not have marked “reckless disregard” if he had issued a citation for any
individual condition. (Tr. 303.) Although I credit Stanfield’s aggregate S&S theory, I do not
find his theory of aggregate “reckless disregard” similarly persuasive. An S&S analysis asks
simply whether the cited conditions contributed to a safety hazard. In that context, an aggregate
analysis is appropriate because the marginal impact of each individual item may not be capable
of quantification. In contrast, a reckless disregard designation considers whether the operator
acted “without the slightest degree of care.” Accordingly, a “degree of care” on any given item
would seem to preclude a reckless disregard designation.
Here, Ashworth observed Section Foreman Roberts completing Blue Diamond’s
examinations of the 11 Section the day before Stanfield’s inspection, but neither identified any
of the cited conditions nor suggested that Roberts’ inspection was inadequate. Blue Diamonds’s
regular, and apparently adequate, examinations convince me that it did not act “without the
slightest degree of care.” See 30 C.F.R. § 100.3(d) at Table X. Despite the extensive nature of
these conditions and danger they presented cumulatively, I have also determined that these
conditions were not obvious. Ashworth’s failure to record any problems with Blue Diamond’s
roof controls the day before this order was issued significantly mitigates Blue Diamond’s reason
to know that these conditions existed and suggests that Respondent’s negligence was moderate.
Indeed, the Secretary’s own standards call for moderate negligence where “[t]he operator knew
of should have known of the violative condition or practice, but there are mitigating
circumstances.” Id. (emphasis added). I thus conclude that Respondent’s level of negligence
was moderate.
Given the evidence before me, I therefore VACATE the Secretary’s unwarrantable
failure designation and MODIFY Respondent’s level of negligence to moderate.

36 FMSHRC Page 571

5.

Reckless and Repeated Flagrant Designation under Section 110(b)(2)

Given my analysis of unwarrantable failure and negligence, I likewise determine that the
Secretary has not met his burden of proof that Blue Diamond’s conduct was either recklessly or
repeatedly flagrant. The Secretary has demonstrated neither the conscious or deliberate
disregard of the danger involved that would constitute recklessness nor the actual or implied
knowledge necessary to characterize the cited conditions as a known violation. Inspector
Ashworth spent the entire day on the 11 Section on April 4, but did not observe or record a
single one of these violations. His failure to identify any of the cited conditions suggests
strongly that Blue Diamond did not act with the conscious or deliberate disregard that section
110(b)(2) addresses. Although the Mine Act makes Blue Diamond responsible for ensuring
miner safety, I cannot infer that Blue Diamond recklessly failed to follow its roof control plan or
had implied or actual knowledge of the violative conditions when MSHA’s own representative
did not record a single one of these conditions, despite spending all day on the section and
observing Blue Diamond’s pre-shift exam one day beforehand. Instead, I infer that these
conditions—while violations of the September 7 Plan—were sufficiently obscure that Blue
Diamond’s failure to identify them does not constitute a conscious or deliberate disregard of the
risk of death or serious bodily injury. In addition, the Secretary has not demonstrated that this
was a known violation. He has therefore failed to meet his burden of proving a “reckless failure”
under section 110(b)(2).
Moreover, the Secretary’s failure to demonstrate that the cited conditions were known
violations also means that he has not proven a repeated failure. As I have explained, the
Secretary’s own definition of repeated failure requires that section 110(b)(2)’s other criteria be
satisfied (i.e., that the present violation constituted a failure to make reasonable efforts, was a
known violation, and could have reasonably been expected to cause death or serious bodily
injury). Here, the Secretary falls far short of demonstrating that the conditions in Order No.
7521758 were a known violation. Based on the Secretary’s own definition of “repeated,” I
therefore need not determine whether his evidence establishes a predicate prior failure to make
reasonable efforts because he has not met his burden of proving that the present violation was a
known violation.
In view of the above, I conclude that the Secretary has not proven Blue Diamond’s
conduct to have been flagrant under section 110(b)(2) of the Mine Act. Order No. 7521758 is
therefore MODIFIED to remove the flagrant designation.
6.

Penalty

The Secretary originally proposed a $184,900.00 civil penalty for this violation.
Again, nothing in the record suggests that the proposed penalty is inappropriate for the size of
Blue Diamond’s business or that it would infringe on Blue Diamond’s ability to remain in
business. I have found that this violation was properly designated as S&S, but I have modified

36 FMSHRC Page 572

this order to “moderate” negligence and removed the unwarrantable failure and flagrant
designations. Of the 914 violations in Respondent’s history of violations report, 42 involved
30 C.F.R. § 75.220(a)(1). In considering all of the facts and circumstances in this matter and the
criteria of section 110(i), I hereby assess a civil penalty of $18,490.00.
C.

Order No. 7524542 – Extended Cuts Citation – Roof Control – May 9, 2007
1.

Background – Inspection on May 9, 2007 and Order No. 7524542

A little more than a month after issuing Order No. 7521758, Inspector Stanfield returned
to Mine No. 77 to continue an electrical inspection and terminate outstanding violations. (Tr.
131.) After arriving underground, he traveled to the 12 Section with Mine Foreman Burley
Adams. (Ex. G–21 at 1–2, 11; Tr. 132, 1037.) At the time, the 12 Section was located in the
New North Mains portion of Mine No. 77. (Ex. G–16; Tr. 132–33.) Nine entries, numbered
from left to right, had been driven into the working face. (Ex. G–21 at 5, 15; Ex. G–22; Tr. 133.)
The 12 Section was a “super section,” which includes two crews, two continuous miners, and
separate splits of air to mine two areas simultaneously. (Tr. 324, 326–27, 627–28, 641; Ex.
G–22.) Approximately six people work on each mining crew. (Tr. 327.)
When Stanfield arrived, the continuous miners were energized in the No. 2 and No. 8
entries, but Blue Diamond was not cutting coal. (Ex. G–21 at 13; Ex. G–22; Tr. 133, 135,
627–28, 641.) However, a single-head bolter was bolting in the No. 3 entry and a double-head
bolter was bolting in the No. 7 right crosscut connecting the Nos. 7 and 8 entries. (Ex. G–21 at
10–11, 13, 15; Ex. G–22; Tr. 135–36.) Stanfield traveled from the No. 1 entry to the No. 9 entry
on an imminent danger run, took air readings, and talked with miners. (Ex. G–21 at 2; Tr. 133.)
Stanfield testified that he found two different violations of the September 7 Plan. (Tr.
137, 147–49.) First, he identified a portion of entry No. 5 that was wider than permitted under
the September 7 Plan. (Ex. G–21 at 5, 7, 9; Ex. G–22; Tr. 137.) The wide portion of the entry
formed a triangular sliver cut into the right hand rib of the entry. (Ex. G–22; Ex. G–21 at 7.)
This wide area was 12-feet long, four-feet wide at its widest point, and had been bolted with
five-foot resin bolts. (Ex. G–22; Ex. G–21 at 7, Tr. 171–72.) Stanfield saw no draw rock or
cracks in the area. (Tr. 172–73.) Second, Stanfield measured the length of Blue Diamond’s cuts
in the No. 2 entry, No. 3 entry, No. 7 entry, the No. 7 right crosscut, and the No. 9 entry, and he
concluded that the 12 Section had more than two extended, unsupported cuts. (Tr. 148–56, 163;
Ex G–21 at 10–11, 14–15; Ex. G–22.)

36 FMSHRC Page 573

Based on his observations, Stanfield issued Order No. 7524542 for the alleged violation
of 30 C.F.R. § 75.220(a)(1):
The operator failed to comply with the approved roof control (date
09/07/2006), on the 012/MMU in that;
(1) The entry width in the #5 entry exceeded the required 19 feet.
Thirty [sic] inby spad #4037, located at the last open crosscut, the
entry width measured from 20 to 24 feet wide for 12 feet
(2) Page 8 of the plan requires than [sic] no more than 2 extended
cuts be left unsupported at any time. At the beginning of the
second shift there were five cuts not bolted. These are; [sic] (1) #2
heading, (2) #3 heading, (3) #7 heading, (4) #7 right crosscut, and
(5) #9 heading. After the cuts were bolted they were measured and
the depths are; [sic] (1) #2 heading measured 18 feet deep, (2) #3
heading measured 22 feet deep, (3) #7 right crosscut measured 26
feet deep, (4) #7 heading measured 30 feet deep, and (5) #9
heading measured 20 feet and eight inches deep.
The operator has a history of recent similar violations. Three
104(d)(2) orders have been issued in the last year citing the same
regulation. This mine has a history of poor roof and rib conditions,
including roof falls. Failure to comply with the approved roof
control plan, [sic] is a highly dangerous condition. The approved
plan only specifies the minimum supports to be installed. The
intent of the plan to allow no more than two extended cuts to be
unsupported at any time is to assure that the roof is supported prior
to it bending and breaking. The sooner the roof can be supported,
the less likely than [sic] it will bend, break and fall. The
immediate roof on the 012/MMU is laminated sandstone, which is
often known to bend[,] break, and be hard to support. An agent of
the operator was present on the 012/MMU while these cuts were
being taken. The cited condition is an unwarrantable failure to
comply with a mandatory regulation.
(Ex. G–23 at 1–2.). Stanfield alleged that four miners were affected and that fatal injuries were
highly likely. (Id. at 1.) He also marked the order as S&S and the result of the operator’s
unwarrantable failure. (Id. at 1–2; Tr. 143–145, 157–159, 165.) Stanfield opined that the
extended cuts had existed since at least the prior shift, which had ended at 3:00 p.m. (Tr. 159.)

36 FMSHRC Page 574

2.

Further Findings of Fact – Length of Unsupported Cuts

When Stanfield arrived on the 12 Section, he found five entries or crosscuts that were
either partially or wholly unsupported (Stanfield’s alleged measurements in parentheses): the
No. 2 entry (18 feet), the No. 3 entry (22 feet), the No. 7 heading (30 feet), the No. 7 right
crosscut (26 feet), and the No. 9 entry (20 feet, 8 inches).18 The September 7 Plan limited Blue
Diamond to two unsupported cuts longer than 20 feet, also known as extended cuts. (Ex. G–20
at 8, 16–19; Tr. 147–48, 156.) Therefore, Stanfield’s measurements bear on Blue Diamond’s
compliance with the September 7 Plan. Blue Diamond does not dispute the length of the No. 7
heading, but contends that Stanfield’s measurements of entry No. 9, entry No. 3, and the No. 7
right crosscut are inaccurate. (Resp’t Br.at 44–45.)
Although Stanfield measured the No. 9 entry at 20 feet, 8 inches in length, he measured
this length from the back edge of the eight-inch bolt plate on the last row of roof bolts—in other
words, the portion of the plate that was furthest from the face of the entry. (Tr. 630–32.)
However, roof bolt plates play a role in securing the mine roof. I therefore find that the length of
unbolted roof in entry No. 9 did not exceed twenty feet.
In entry No. 3, Stanfield testified that he marked the last row of completed bolts with
rock dust, then waited to take his measurement until after the roof bolter finished bolting the
entry. At the hearing and in its post-hearing brief, Blue Diamond suggested that Stanfield was
unsure of the precise starting point for his measurement because he did not include it in his
notes. (Tr. 185–86; Resp’t Br. at 44.) However, I credit Stanfield’s testimony that he marked
the last row of bolts using rock dust and properly measured the distance. (Tr. 150–51.) Thus, I
find that entry No. 3 had been cut to a length of 22 feet before Blue Diamond began bolting the
roof.
Finally, Stanfield testified that he measured the left side of the No. 7 right crosscut “from
the face back to the corner where the [left] rib of the crosscut intersected with the [No.] 7
heading.” (Sec’y Br. at 44; see also Tr. 155, 188–90; Ex. G–35.) Blue Diamond again disputed
the accuracy of Stanfield’s 26-foot measurement at the hearing and in its post-hearing brief. (Tr.
188–91; Resp’t Br. at 45.) Yet, I see no reason not to credit Stanfield’s No. 7 right crosscut
measurement. Regardless of any estimation he made, I have no reason to believe his estimate
would have overestimated the distance by six feet. I therefore find that the No. 7 right crosscut
exceeded 20 feet prior to bolting. Consequently, three entries constituted extended cuts under
the September 7 Plan: entry No. 3 (22 feet), heading No. 7 (30 feet), and No. 7 right crosscut (26
feet).
18

Stanfield testified that the conditions he found in the No. 2 entry suggested to him that
Blue Diamond had quickly installed three rows of bolts in the No. 2 entry after he arrived at the
mine. (Tr. 149–150; see also Sec’y 43–44.) However, he could not testify to any conversation
he had with miners on the 12 Section that day indicating when entry No. 2 had been bolted.
Thus, the Secretary has not demonstrated that any surreptitious bolting occurred.

36 FMSHRC Page 575

3.

Violation of Roof Control Plan – Wide Entry and Extended Cuts

The September 7 Plan specifically stated: “No more than 2 extended cuts shall be left
unsupported at any time during [] normal production.” (Ex. G–20 at 8; Tr. 147–48.) The
Secretary argues that Blue Diamond violated its roof control plan by having more than two
extended cuts that were unsupported. Additionally, the September 7 Plan limited the
“[m]aximum extracted entry width” to 19 feet. (Ex. G–20 at 6, 15–16, 18; Tr. 139.) The
Secretary contends that the twelve-foot sliver in entry No. 5 exceeded the entry width permitted
under the September 7 Plan.
Blue Diamond does not dispute the existence of the wide sliver in entry No. 5; instead, it
claims the wide sliver was not dangerous and eventually became part of a crosscut. (Resp’t Br.
at 49, 53.) I determine that the wide portion of the No. 5 entry did not comply with the terms of
Blue Diamond’s September 7 Plan, and I conclude that Respondent violated 30 C.F.R.
§ 75.220(a)(1).
Nevertheless, Blue Diamond claims it complied with the September 7 Plan’s restrictions
on extended cuts. (Resp’t Br. 44–49.) From Blue Diamond’s perspective, its active roof-bolting
means that “the cut (no matter how long the depth) is no longer considered ‘left unsupported.’”
(Resp’t Br. at 45.) Blue Diamond also argues that the September 7 Plan is ambiguous regarding
the meaning of the term “unsupported,” and that the Secretary has the burden of establishing the
meaning intended by the parties. (Resp’t Br. at 46.)
In support of this argument, Respondent indicates “cuts with less than [20] feet of
unsupported roof” that were being “actively bolted” have never been cited as “an ‘extended cut
left unsupported.’” (Resp’t Br. at 46–47.) Blue Diamond also points to Section Foreman
Shepherd’s testimony that he had employed Blue Diamond’s proposed interpretation in the
presence of Inspector Ashworth, and that Ashworth “never questioned the practice nor did he
issue any citations.” (Resp’t Br. at 47.) I recognize that the Secretary presented no evidence of
similar citations or orders, and I credit Williams’ testimony that no one from MSHA had
previously informed him of Inspector Stanfield’s interpretation. Although these facts bear on
Blue Diamond’s negligence, they do not indicate that the September 7 Plan was ambiguous.
Indeed, Blue Diamond’s strained attempt to muddy the waters about the September 7
Plan’s extended cut provision is unavailing. The provision clearly prohibits more than two
extended cuts from being left unsupported “at any time,” and it is uncontroverted that portions of
the No. 3 entry and No. 7 right crosscut were “left unsupported”—in that they had not yet been
bolted—when Stanfield inspected the 12 Section. The plan’s terms were straightforward, and

36 FMSHRC Page 576

Blue Diamond should have been on notice that it could not have more than two extended cuts
that were unsupported at any time.19 Thus, I determine that the unsupported cuts in the No. 3
entry, the No. 7 heading, and the No. 7 right crosscut violated the terms of Blue Diamond’s
September 7 Plan.
Based on the above, I conclude that the wide sliver in the No. 5 entry and Respondent’s
three extended, unsupported cuts together constitute a violation of 30 C.F.R. § 75.220(a)(1).
4.

S&S and Gravity Determinations

Blue Diamond’s violation of 30 C.F.R § 75.220(a)(1) establishes the first element of the
Mathies test. Once again, my S&S determination in this case turns on whether the Secretary has
proven that the wide sliver and extended cut conditions contributed to the safety hazard of a roof
fall. Inspector Stanfield’s S&S determination depends on two key factors: the sensitive nature
of the mine roof and the impact of extended cuts at Mine No. 77. First, Stanfield stated that the
laminated sandstone roof in the 12 Section contained “real small layers,” which can bend and
break with “the least bit of pressure” (Tr. 141), and MSHA Mining Engineer Gauna concurred
that laminated sandstone was “very sensitive” and “very weak roof” that “can fail even after [it
is] bolted.” (Tr. 1114–15.)
Second, Stanfield stated that the September 7 Plan limited the number of extended cuts to
minimize roof bending and breaking before roof support is installed. (Tr. 157–58.) He also
explained that resin bolts build a beam of rock, so “the sooner [the beam is built] the less likely
that those individual sheets of that laminated sandstone” are to bend and break. (Tr. 158.) Thus,
leaving an unsupported, extended cut for any extended period limits the effectiveness of roof
bolts in the short-term and long-term, because once “[the roof] bends and breaks . . . you’re not
doing a good job of building a satisfactory beam.” (Tr. 157–58; see also Tr. 307.) Gauna
concurred and indicated that an extended cut is particularly dangerous in laminated sandstone.
(Tr. 1117–19; 1147–48, 1151.) Finally, Stanfield indicated the September 7 Plan’s limitation of
two extended cuts was “the smallest [number] of extended cuts we have” and reflected Mine No.
77’s past history of roof falls and the “nature of the roof.” (Tr. 158–159.) In comparison, other
mines were allowed up to four extended cuts. (Tr. 158.)
For its part, Blue Diamond performs quick-and-dirty calculations to compare the surface
area of unsupported roof that the September 7 Plan permitted for non-extended cuts (i.e., normal

19

In its brief, Blue Diamond advances a “fair notice” argument. (Resp’t Br. at 47–49.)
Because I have determined the September 7 Plan unambiguously prohibits more than two
extended cuts that are not fully bolted, I dismiss Respondent’s argument that it did not have fair
notice of the conduct the roof control plan required.

36 FMSHRC Page 577

20-foot cuts) with the amount of surface area Stanfield found in unsupported, extended cuts.20
(Resp’t Br. at 49.) Blue Diamond appears to hope I will infer that the latter unsupported
extended cuts must not be dangerous if MSHA permits the former non-extended cuts. However,
Blue Diamond’s calculations do not account for the added danger any extended cut presents in
the 12 Section.21
As for the wide sliver in entry No. 5, I recognize it had been bolted and Blue Diamond
later turned a crosscut in that location. I also realize that Blue Diamond’s roof bolters were
actively bolting in both entry No. 3 and the No. 7 right crosscut when Stanfield arrived on the 12
Section. Both scenarios seem to limit the contribution these violative conditions would make to
the discrete safety hazard of a roof fall in the 12 Section. However, Inspector Stanfield and
MSHA’s Gauna credibly explained why the 12 Section’s laminated sandstone roof would bend
and break under additional pressure. Despite Blue Diamond’s attempts to discredit Stanfield’s
experience with laminated sandstone (see Tr. 734–35), it does not deny that the mine roof in the
12 Section is laminated sandstone. (See also Tr. 1152–54 (Gauna explaining why Stanfield’s
experience with laminated sandstone was more credible than Newman’s KRP-7 core sample
from several hundred feet away that contained no laminated sandstone).) Moreover, I find
convincing Stanfield and Gauna’s explanation that laminated sandstone is particularly sensitive.
As Gauna succinctly noted: “Any bolts are better than no bolts. Yes, you do have that cut
partially supported and it does help, but the fact remains that it’s the issue of the depth of the cut
is really prior to you getting there and actually doing the bolting. That’s the issue.” (Tr. 1122.)
Consequently, I determine that the wide sliver and the three extended cuts in entry No. 3,
the No. 7 heading, and the No. 7 right crosscut contributed to a discrete roof fall hazard. Thus, I
determine that the second Mathies element has been satisfied.

20

Blue Diamond also points to a Roof Control Plan dated April 28, 2010 (“April 28
Plan”), which states that “[a] cut will not be considered unsupported if it is being bolted.”
(Ex. R–11 at 51.) However, Roof Control Specialist Charlie Fields credibly testified that his
recommendation that MSHA approve the April 28 Plan reflected his review of the mine’s
accident history at the time and the mining conditions in which Respondent was advancing.
(Tr. 1057–1062.) Thus, the roof conditions underlying the April 28 Plan tell me little about the
roof conditions underlying the September 7 Plan. I therefore afford no weight to Blue
Diamond’s later April 28 Plan.
21

Indeed, Dr. Newman opined that “extended cuts do not create a hazardous situation
under the circumstances that they can be safely taken. In other words, where the roof permits,
where the strength and physical properties of the immediate roof are adequate, an extended cut
does not create a hazardous condition.” (Tr. 762.) Yet the converse would also seem to be true:
where the strength and immediate roof are inadequate, an extended cut creates a hazardous
condition. As I noted, both Stanfield and Gauna highlighted the danger of extended cuts in a
laminated sandstone roof.

36 FMSHRC Page 578

Stanfield credibly testified that these conditions could result in a roof fall hazard. (Tr.
141–43, 162–63). He also credibly testified that a roof fall was highly likely to result in fatal
injuries to four of the ten miners located on the 12 Section. (Tr. 133–34, 162–63, 179–80.) As I
noted in discussing Order No. 7521758, roof falls are highly likely to result in permanently
disabling or fatal injuries to miners. I therefore determine that the third and fourth Mathies
elements have been satisfied.
Given my determinations that the four Mathies elements have been satisfied, I conclude
that Order No. 7524542 was properly designated as S&S.
5.

Negligence and Unwarrantable Failure Determinations

The Secretary again alleges that Blue Diamond’s level of negligence was “reckless
disregard” and that its conduct constituted an unwarrantable failure. Here, Inspector Stanfield
alleged that Blue Diamond’s day shift foreman purposefully violated the September 7 Plan. (Tr.
161, 164–65.) According to Stanfield, miners on the 12 Section told him that mining more than
two extended cuts was a common practice. (Tr. 160.) On cross-examination, he explained that
he had not included his conversation in his notes because he feared the miners might be
blackballed. (Tr. 184–85.) I believe Stanfield testified to his best recollection of that
conversation, and I can understand and appreciate his concern for protecting the identity of the
miners in question. However, Stanfield was testifying nearly four years after his inspection and
had no notes about the conversation to refresh his memory. Intentional misconduct is a serious
allegation, and I determine that Stanfield’s testimony is insufficient to establish that the day shift
section foreman intentionally violated Blue Diamond’s roof control plan. Tellingly, the
Secretary brought no section 110(c) case for this alleged intentional misconduct.
Looking to the remaining types of unwarrantable conduct, four aggravating factors
support the Secretary’s position. First, I have concluded that the September 7 Plan
unambiguously gave Respondent notice of the conduct it required. See discussion supra Part
VI.C.2. Moreover, the unambiguous roof control plan made the violations obvious. Further, the
Secretary presented violation history reports and citations for roof bolting violations, suggesting
that greater efforts were necessary for compliance. Finally, I have found that the wide sliver and
extended cuts were sufficiently dangerous to be designated as S&S.
On the other hand, three unwarrantable failure factors tilt in Blue Diamond’s favor. First,
the length of time these conditions existed was relatively short. Second, Respondent had already
bolted the wide sliver and was in the process of bolting the No. 3 entry and No. 7 right crosscut
in an effort to abate the violative condition. Third, I determine that these violative conditions
were not extensive because they existed in just four of the nine entries in the 12 Section.
Considering all of the facts and circumstances, this is a close case. Blue Diamond did
bolt the wide sliver. Though its interpretation of the extended-cut provisions was misguided,
Blue Diamond was bolting the unsupported, extended cuts. Furthermore, the Secretary’s own

36 FMSHRC Page 579

evidence suggests an inconsistent interpretation: none of the previous roof control plan citations
or orders the Secretary introduced into evidence mention problems with multiple extended cuts.
(Ex. G–6; Ex. G–9; Ex. G–10; Ex. G–15.)
Yet, Blue Diamond had a responsibility to adhere to the September 7 Plan, including its
limitations on entry width and the number of extended, unsupported cuts. In this case, Blue
Diamond failed to adhere to entry width limitations, and the Secretary has presented evidence
that entry widths are a continuing problem at Mine No. 77. (Ex. G–6; Ex. G–9; Ex. G–10; Ex.
G–15.) No matter how well-intentioned, Blue Diamond’s plan interpretation (that an extended,
unsupported cut became a non-extended cut when Respondent began bolting it) of clear plan
provisions was also simply incorrect. These are serious violations that put miners at risk, and
Blue Diamond has not fulfilled its duty to protect miners. I therefore determine Respondent’s
conduct was unwarrantable.
However, the Secretary has not proven his negligence allegations for “reckless
disregard.” According to his own regulations, “reckless disregard” is appropriate when an
operator’s conduct “exhibit[ed] the absence of the slightest degree of care.” 30 C.F.R § 100.3(d)
at Table X. Conversely, “high” negligence is appropriate when “[t]he operator knew or should
have known of the violative condition or practice, and there are no mitigating circumstances.”
Id. Although Blue Diamond should have known that the September 7 Plan’s clear plan
provisions prohibited its interpretation, Respondent’s efforts to bolt the wide sliver and extended
cuts indicate that the operator exercised at least some care in this case. That said, I have found
Blue Diamond to have exhibited a serious lack of reasonable care, and I found its conduct to be
aggravated, constituting more than ordinary negligence.
Given my above analysis, I conclude that Blue Diamond’s violations were appropriately
designated as an unwarrantable failure and that its negligence was high in this case. Thus, Order
No. 7524542 is AFFIRMED as to the unwarrantable failure designation and MODIFIED to
change the cited level of negligence from “reckless disregard” to “high.”
6.

Reckless and Repeated Flagrant Designations under Section 110(b)(2)

In view of my S&S, unwarrantable failure, and negligence determinations, I note that the
September 7 Plan’s provisions were unambiguous and Respondent’s unreasonable interpretation
created dangerous conditions. Accordingly, I conclude Blue Diamond failed to make reasonable
efforts to eliminate a known violation that reasonably could have been expected to cause death
or serious bodily injury. Unlike Order Nos. 4220150 and 7521758, the Secretary has therefore
demonstrated that section 110(b)(2)’s other criteria have been satisfied. Thus, the Secretary’s
flagrant designation will turn on whether Blue Diamond’s conduct constituted the conscious or
deliberate disregard that underlies a “reckless” allegation, and whether the Secretary’s evidence
demonstrates a predicate, prior failure to make reasonable efforts to eliminate a previous
violation that would underlie a “repeated” allegation under section 110(b)(2).

36 FMSHRC Page 580

Notwithstanding my other conclusions in this case, the Secretary comes up well short in
proving either a “reckless” or “repeated” failure. First, the Secretary has not proven that
Respondent acted with the conscious or deliberate disregard that would underlie a “reckless”
failure. Here, the evidence demonstrates that Blue Diamond tried to comply with the September
7 Plan. Respondent did bolt the wide sliver. It did make efforts—misguided though they may
have been—to bolt the unsupported, extended cuts.
Moreover, Blue Diamond presented credible evidence that it was unaware that the roof
control plan meant that “active bolting” did not constitute supported roof. Although the
September 7 Plan was unambiguous, Blue Diamond’s irrational or improper interpretation does
not necessarily imply a conscious or deliberate disregard for safety. In fact, Superintendent
Williams and Section Foreman Shepard credibly testified that MSHA—Inspector Ashworth in
particular—had not previously enforced the extended cut provisions in the same fashion.
Interestingly, the Secretary chose not to have Ashworth testify regarding Mine No. 77’s
extended cuts. More interesting still, the Secretary’s own evidence corroborates this point: none
of the previous roof control plan citations or orders the Secretary introduced into evidence
mention problems with multiple extended cuts. (Ex. G–6; Ex. G–9; Ex. G–10; Ex. G–15.)
Indeed, the most natural inference is that Blue Diamond made an unreasonable mistake,
but not a deliberate one. Although Respondent’s interpretation was clearly wrong, MSHA’s
failure to enforce the extended cut terms of the September 7 Plan suggests Blue Diamond did not
act outrageously in employing such an interpretation. Given the evidence before me, the
Secretary has not satisfied his burden of proving that Blue Diamond’s conduct was reckless,
because he has not demonstrated a conscious or deliberate disregard for the risk of a roof fall.
The Secretary also falls short of his burden of proving a predicate prior failure. Here, the
Secretary points to two section 104(d)(2) S&S orders and thirteen section 104(a) S&S citations
for violations of Blue Diamond’s roof control plan in the year prior to April 4, 2007. (Sec’y Br.
at 53; Ex. G–6; Ex. G–9; Ex. G–10; Ex. G–15.) Yet Blue Diamond’s past S&S or unwarrantable
failure citations and orders do not per se establish a past failure to take the steps a reasonably
prudent operator would have taken to eliminate the known violation of a mandatory health or
safety standard. As I noted in Stillhouse, the language in section 104 from which the terms
S&S and unwarrantable failure are drawn “is quite different from the language that defines a
flagrant violation.” 33 FMSHRC at 800; compare 30 U.S.C. § 814(d)(1) with 30 U.S.C.
§ 820(b)(2). Thus, the Secretary’s attempt to use prior S&S and unwarrantable orders as a
stand-alone proxy for a failure to make reasonable efforts is inapposite.

36 FMSHRC Page 581

In addition, Respondent’s past citations and orders22 and Inspector Stanfield’s vague
testimony regarding Blue Diamond’s violation history (Tr. 164, 206–10, 299) do not satisfy the
Secretary’s burden of proof. Flagrant designations are serious charges involving detailed
analyses of multiple elements. None of the Secretary’s proffered evidence provides sufficient
details to establish a predicate, previous failure to make reasonable efforts to eliminate a
previous violation. This was a fatal defect in the Secretary’s case-in-chief.
Accordingly, I conclude that the Secretary has not proven Blue Diamond’s conduct to
have been recklessly or repeatedly flagrant under section 110(b)(2) of the Mine Act. Order No.
7524542 is therefore MODIFIED to remove the flagrant designation.
7.

Penalty

The Secretary originally proposed a $196,700.00 civil penalty for this violation. Again,
nothing in the record suggests that the proposed penalty is inappropriate for the size of Blue
Diamond’s business or that it would infringe on Blue Diamond’s ability to remain in business.
Although I have found that this Order was properly designated S&S and unwarrantable, I have
modified the order to “high” negligence and removed the flagrant designation. Of the 914
violations in Respondent’s history of violations report, 42 involved 30 C.F.R. § 75.220(a)(1). In
considering all of the facts and circumstances in this matter and applying the criteria in section
110(i) of the Mine Act, I hereby assess a civil penalty of $49,000.00.
D.

Citation No. 7505299 – Pillar Split Citation – Roof Control – November 2, 2007
1.

Blue Diamond’s “Dog Leg” Section

In the fall of 2007, Blue Diamond began to rehabilitate part of Mine No. 77 that a
previous operator had mined twenty or thirty years earlier. (Tr. 325–26, 359–60, 968.) Located
near the intersection of the Energy Mains and the AL West 2 areas of the mine, miners called
this portion of Mine No. 77 “the dog leg” because of its unorthodox shape. (Ex. G–16; Tr. 325,
968–69.) Looking toward the face, the entries were numbered sequentially beginning with the
No. 1 entry on the far left and the No. 9 entry on the far right. (Ex. G-16; Ex. R–3; Tr. 339.)
The previous operator drove the last open crosscut of the section from two different directions,
creating a point—or “knee” of the dogleg—at the No. 5 entry. (Tr. 971; Ex. R–3; Ex. G–16 .)
Because these slightly offset crosscuts came together at an angle, the panel, its crosscuts, and its
22

In his brief, the Secretary cites Commission dicta as a rationale for crediting copies of
past citations. (Sec’y Br. at 10 (citing Old Ben Coal Co., 7 FMSHRC 205, 209 (Feb. 1985)).)
Even accepting as true the text of the citations and orders the Secretary presents, I accord scant
evidentiary weight to the condition or practice section of any of these past citations or orders.
Without more detail from the Secretary, such as testimony tying specific prior violations to the
specific conditions found in this case, it is unclear whether these prior violations demonstrate a
predicate failure for purposes of section 110(b)(2).

36 FMSHRC Page 582

pillars were irregularly-shaped, rather than the typical square or rectangular shape of a coal
pillar. (Ex. G–26 at 1; Ex. R–3; Tr. 971–72, 977–78.)
The previous mining activities in the dog leg did not meet Blue Diamond’s height
requirements for new coal production. (Tr. 325–26, 359–60, 968.) In addition, the previous
operator’s past mining activity anomalously stopped one crosscut short of the working face in
the No. 6 entry. (Ex. G–26 at 1; Ex. R–3; Tr. 971–72.) The offsetting angles of the “dogleg” left
an oversized and nearly trapezoidal pillar bounded by the No. 5 and No. 7 entries and the last
open crosscut and second-to-last crosscut. (Ex. G–26 at 1; Ex. R–3; Tr. 972.)
On October 16, 2007, MSHA approved a supplement (“October 16 supplement”) to Blue
Diamond’s September 7 Plan that permitted Respondent to extend the No. 6 entry through the
middle of the anomalous, oversized pillar. (Ex. G–20; Ex. G–26 at 1; Ex. R–3; Tr. 329, 333,
341, 348, 350, 353–54, 385, 388.) According to the supplement, the entry could not exceed
18-feet wide or 20-feet long. (Ex. G–26 at 1; Tr. 976.)
Prior to beginning the pillar split, Superintendent Williams reviewed the October 16
supplement with Section Foreman Roberts and Blue Diamond’s continuous miner operators.
(Tr. 353–54, 370, 976–77.) Williams instructed the foreman and miners to make their cuts a foot
shorter and narrower than permitted under the supplement. (Tr. 977.) Respondent began mining
the No. 6 entry through the anomalous, trapezoidal pillar on November 1, and completed the
pillar split on November 2. (Tr. 358–59, 978–80.)
Blue Diamond mined from the second-to-last open crosscut towards the working face of
the section and completed the spilt in three cuts. (Tr. 343, 357–60, 978–980; Ex R–3.) Because
the spads the miners used to line up their cut had been misaligned, Respondent’s first two cuts
were slightly off-center. (Tr. 980–83; Ex. R–3.) Blue Diamond compensated to the left on the
third cut, resulting in a slightly wider entry.23 (Tr. 983–85; Ex R–3.) Finally, the combined
length of all three cuts was a total of 48 feet. (Tr. 1004.)
2.

Inspection on November 2, 2007

On November 2, 2007, Inspector Vernus Sturgill and Superintendent Williams visited the
dog leg portion of the mine, which was also known as the 11 and 12 Sections (or super section)
of Mine No. 77. (Ex. G-24 at 1, 32.; Tr. 323–24, 370, 987.) At the time, Blue Diamond was
“cutting bottom”—in other words, lowering the mine floor to create taller entries and crosscuts.
(Tr. 325–26, 968–69, 988.)

23

For a distance of ten feet, the entry measured nineteen feet wide. (Tr. 348; Ex. G–25
at 1–2.) Another ten-foot portion of the cut measured eighteen feet, six inches wide. (Tr. 348;
Ex. G–25 at 1–2.)

36 FMSHRC Page 583

Sturgill began with an imminent danger inspection of the 11 and 12 Sections, including
the No. 5 and No. 6 entries. (Ex. G–24 at 6, 14–15, 19–32; Tr. 327–28, 339, 989.) As a result of
his examination, Sturgill issued Citation No. 7505299 for the alleged violation of 30 C.F.R.
§ 75.220(a)(1):
The operator’s approved Roof Control Plan (dated: 9–7–06) and
supplement 77V-100-07 dated: 10–16–07) [sic] being complied
with in the number 5 and 6 heading[s] of the 012 section.
Beginning at the corner of the number 5 heading (inby survey
station 4147),[24] the number 5 heading has the following hazardous
conditions present: the mine roof has loose unsupported draw rock
located between the second and third roof bolts installed in the
heading for approximately 20 feet and a loose rock brow that
measures approximately 21 inches thick and by 28 feet in length.
The rock brow has been created after the operator has mined the
number 5 heading, the loose unsupported[25] draw rock is an area
the operator has mined through, (previously mined) . [sic] The
number 6 heading is being created by the operator splitting a pillar,
a pillar splitting plan was submitted and approved. An inspection
of the number 6 heading revealed the last mined cut into the cross
cut above it measures to be 30 feet in depth on the left side and
approximately 25 feet on the right (looking toward the face). The
previous cut mined measures in width 19 feet for 10 feet and 18.5
feet for 10 feet (distance of length are approximate) . [sic] The
approved supplement limits the cut depth to a maximum of 20 feet
and 18 feet wide. The width measurements taken are not due to rib
24

Sturgill claimed that he made a typographical mistake in filling out Citation No.
7505299, contending that “4147” should have been “4129.” (Tr. 330–31.) Regardless of where
Sturgill observed the draw rock, he admitted that the draw rock had been supported. (Tr. 380.)
His problem with the draw rock was that it had not been supported with straps as the September
7 Plan required. (Tr. 333– 35, 380.) Accordingly, I find that the draw rock Sturgill identified in
entry No. 5 was located in an area with roof bolt support. I also find that the draw rock in
question had not been strapped or otherwise supported.
25

Inspector Sturgill and Superintendent Williams disagreed whether Blue Diamond had
previously bolted the rock brow in No. 5 entry. (Tr. 338, 1011.) However, Sturgill’s
contemporaneous inspection notes state: “The Number 5 heading has loose hanging draw rock
and brow (rock) measuring approximately 21 inches thick by 28 feet in length on the right side
approximately 20 feet [from the corner of the intersection with the last open crosscut].” (Ex.
G–24 at 15.) That Sturgill’s notes reference the rock brow in similar terms to the draw rock
convinces me that the rock brow had also been bolted. Accordingly, I find that Blue Diamond
bolted the rock brow at some point before Sturgill arrived. However, I credit Sturgill’s
testimony that the bolted rock brow remained loose.

36 FMSHRC Page 584

sloughage but actual width of cut mined. The supplement and
conditions found on the section limits the cut depth to a maximum
of 20 feet. The heading adjacent to the number 6, number 5
heading when mined for a distance of approximately 12 feet has
fallen and continues to fall to a height of approximately 8.5 to 9
feet, from falling draw rock and adverse roof conditions. These
cited conditions are obvious to the most casual observer. The
operator has been issued eleven violations for non-compliance of
the approved Roof Control Plan from January 2007 until this date.
Citation 7505297 for similar conditions of adverse roof on the 011
section. [sic] The 012 section is one side of a super-section. The
foreman has engaged in aggravated conduct constituting more than
ordinary negligence. This violation is an unwarrantable failure of
the operator to comply with a mandatory standard. A condition of
termination of this citation is that the operator as evidence[d] by
signatures instructs miners employed at this mine for the
production of coal of the operator’s approved Roof Control Plan.
(Ex. G–25 at 1–2.)
According to Sturgill, these conditions created rock and roof fall hazards. (Tr. 335–36,
350–52, 372–73.) Based on his observations and experience as a miner, he characterized
reasonably serious injuries to be reasonably likely to occur. (Tr. 336.) He also noted that he saw
nothing suggesting Blue Diamond had taken any steps to correct the draw rock and rock brow
conditions in entry No. 5, despite their obvious nature. (Tr. 337–38.) Further, Sturgill explained
that Section Foreman Roberts should have identified those conditions during an on-shift
examination. (Tr. 338.) Sturgill also characterized the conditions in entry No. 6 as obvious and
indicated that the operator should have known of the violations. (Tr. 352–54, 370, 388.) In
particular, Sturgill focused on Roberts’ failure to comply with the pillar split roof control
supplement despite Williams’ explanation of the plan to Roberts and the miner operators the
previous day. (Tr. 352–54, 370, 388.)
Based on his examination, Sturgill marked the citation as S&S and as the result of the
operator’s unwarrantable failure. (Ex. G–25 at 1–2; Tr. 370.) In addition, Sturgill alleged that
one miner was likely to be affected. (Ex. G–25.)
3.

Further Findings of Fact
a.

Inspection of Entry No. 5

During his imminent danger run, Inspector Sturgill examined the No. 5 entry, which was
approximately 30 feet long. (Ex. G–24 at 25; Tr. 332, 339, 990.) Roughly twenty feet of the
entry had previously been mined and supported, but included loose draw rock between the bolts.

36 FMSHRC Page 585

(Tr. 332–33, 377, 381–82.) Blue Diamond had not strapped or supported the draw rock, and
Sturgill observed fallen roof debris on the mine floor. (Tr. 333, 379–81.) Blue Diamond had
also mined approximately 12 feet in the face area of entry No. 5 that remained unsupported. (Tr.
332, 377–78.) Sturgill indicated that Respondent was “having trouble cleaning up to the point
that they could actually support that unsupported area. When they would attempt to clean it up,
[the roof] was falling in again to the point that they couldn’t get a roof bolter [into] that
particular heading.” (Tr. 332.) In addition, Respondent had placed a danger flag in front of the
12 foot cut. (Tr. 379, 1009–10.)
Blue Diamond’s mining activities had also created a rock brow in the No. 5 entry that
was approximately 20-feet, 21-inches wide and 28-feet long but of unspecified thickness. (Tr.
333, 335, 338.) No miners were actually working in the entry at the time. (Tr. 333, 378.)
b.

Inspection of Entry No. 6 and Measurement of the Third Cut

The Secretary’s extended- and wide-cut allegations are based on the measurements
Inspector Sturgill took in the new No. 6 entry that split the section’s anomalous and oversized
pillar. Although Blue Diamond admits the pillar split inadvertently exceeded the width
permitted under the October 16 supplement, it disputes the accuracy Sturgill’s length
measurements.
When Sturgill and Williams arrived on the 11 and 12 Sections, Respondent had already
holed through the ribline on the last open crosscut side of the pillar. (Tr. 343, 346, 355, 357,
979, 987, 1000.) By that point, Respondent had supported its first two cuts with roof bolts. (Tr.
341, 347, 359, 363, 394, 397–98, 992–94.) A roof bolter operator was also in the pillar split
supporting the third cut. (Tr. 341, 345, 992–93.) Sturgill testified that the bolter had completed
rows of two bolts on the left-hand side of the third cut; however, he had not yet bolted the righthand side of the third cut. (Tr. 344–345, 348–49, 361–63.)
Sturgill claimed that he stood at the incomplete row of bolts second closest to the
working face and measured the length of Blue Diamond’s third and final cut through the pillar to
be 30 feet. (Tr. 342, 344–46, 397–98; see also G–24 at 20–21 (including measurements).)
According to Sturgill, he extended the end of the tape measure until it reached the corner of the
pillar split and last open crosscut. (Tr. 344–46, 397–98.) Sturgill also measured the right side of
the cut but testified that on the right side he positioned himself at the second to last completed
row of bolts, because the roof bolter had not yet begun bolting the right-hand side of the cut.
(Tr. 355, 363, 366–67, 398.) Further, Sturgill stated that the right-hand side of the third cut

36 FMSHRC Page 586

measured 25 feet.26 (Tr. 355, 364, 366–67; G–24 at 20–21 (including measurements).)
However, he neither verified that the end of his tape measure was at the corner of the newly
created rib and last open crosscut, nor corroborated his measurements at any later time. (Tr.
367–69.)
Conversely, Williams claimed that the pillar split only included completed rows of roof
bolts and that Sturgill took his left-hand side measurements from the completed row of roof bolts
second closest to the working face. (Tr. 993–94; Ex. R–3.) Moreover, Williams claimed that
Sturgill extended his tape measure well beyond the end of the third cut to at least the second row
of bolts in the last open crosscut because the first bolt in the last open crosscut was loose. (Tr.
995–96.) In addition, Williams disputed Sturgill’s testimony about his position within the pillar
split when measuring the right-hand side of the third cut. (Tr. 997.) According to Williams,
Sturgill positioned himself more than two rows of roof bolts back from the unsupported roof
because the roof bolting machine was in his way. (Tr. 997.)
Based on all the evidence, the Secretary has not satisfied his burden of proving that the
third cut through the pillar exceeded twenty feet. Most importantly, it is uncontroverted that the
total length of all three pillar split cuts was forty-eight feet. If I credit Sturgill’s measurements
as accurate, Blue Diamond’s first two cuts would have covered a total of eighteen feet. I
understand that poor roof conditions sometimes force operators to make shorter-than-normal
cuts, but I do not believe an operator that had recently obtained approval of a pillar split
supplement, then carefully shortened its first two cuts to accommodate dangerous conditions,
would swiftly change course and ignore the cut length restrictions contained in the supplement.
Sturgill’s measurements are simply inconsistent with the other evidence before me.
I also have significant questions about the accuracy of Sturgill’s measurements. Looking
at the September 7 Plan, I note that rows of roof bolts are to be spaced four feet apart. (Ex. G–20
at 15–19.) Thus, if Stanfield measured to the second row of bolts in the last open crosscut
(rather than the end of the pillar), he would have added approximately eight feet to his 30-foot
measurement. Meanwhile, if Stanfield positioned himself more than two completed rows back
on the right-hand side, he may have added four feet to his 25-foot measurement. Yet at the time,
his only source of light to illuminate the far end of his tape measure was his cap lamp. (Tr.
367–68.) In my view, estimating the “zero point” of a tape measure from a distance of twenty
feet might easily, and innocently, result in a foot or two of variance.
In view of the above, the Secretary has therefore not met his burden of proving that Blue
Diamond’s final cut through the pillar exceeded 20 feet.

26

The different measurements on left and right side of the entry is at least partially
explained by the mining history of this part of the mine. The last open crosscut was mined at an
angle, which created an irregular and trapezoidal pillar. (Ex. G–26 at 1; Ex R–3; Tr. 355,
971–72, 977–78, Tr. 1000–02.)

36 FMSHRC Page 587

4.

Violation of Roof Control Plan – Pillar Split

Citation No. 7505299 alleges that four different conditions in the No. 5 and No. 6 entries
of Blue Diamond’s 12 Section violated the September 7 Plan, as supplemented by the pillar split
plan. I have found that the rock brow in the No. 5 entry had been previously bolted. In addition,
I have found that the Secretary did not prove that Blue Diamond’s final pillar split cut exceeded
20 feet in the new No. 6 entry. Accordingly, neither condition constitutes a violation of Blue
Diamond’s roof control plan.
Next, the Secretary contends that the loose draw rock in entry No. 5 violated the
September 7 Plan requirement that Blue Diamond provide additional support for subnormal roof
control conditions. As I noted, the cited draw rock in entry No. 5 had been bolted but not
strapped or otherwise supported. I have also found that Blue Diamond previously bolted the
rock brow, but I credit Sturgill’s testimony that the brow remained loose. Given the September 7
Plan requirement that additional support be provided for subnormal roof control conditions, I
determine that the draw rock and rock brow were violations of Respondent’s roof control plan.
Finally, Blue Diamond does not dispute that the wide portion of the No. 6 entry existed;
rather, Respondent explains that the wide portion was inadvertent and not dangerous. (Resp’t
Br. at 56–58.) Those explanations bear on gravity and negligence but not the fact of a violation.
Indeed, the pillar split supplement prohibited Blue Diamond’s pillar split from exceeding a width
of 18 feet, and this cited condition plainly violated the requirements of the supplement.
In light of these determinations, I conclude that the unsupported draw rock in entry No. 5
and the wide portion of entry No. 6 each constitute a violation of 30 C.F.R. § 75.220(a)(1).
5.

S&S Determination

Blue Diamond’s violation of 30 C.F.R. § 75.220(a)(1) establishes the first element of the
Mathies test. As to the second Mathies element, two factors convince me that the violative
conditions contributed to a roof fall hazard in this case. First, Sturgill based the S&S finding on
his long experience as a coal miner and his experience with roof conditions in Mine No. 77 in
particular. Although I recognize that roof conditions and composition can vary widely within
the same mine, I credit Sturgill’s opinion that the violative conditions contributed to a roof fall
hazard because of his experience and first hand observation of the roof conditions at the mine.
Cf. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1279 (Dec. 1998) (relying on inspector’s
opinions to conclude that substantial evidence supported the ALJ’s S&S determination.)
Second, it is uncontroverted that Blue Diamond was having problems securing its newlymined roof in the No. 5 entry. That difficulty corroborates Sturgill’s concern that the mine roof
in this area was sensitive and weak. In addition, Sturgill examined a test hole in the mine roof
twenty feet away from Respondent’s final cut and found cracks at 20 inches and 28 inches. (Ex.
G–24 at 26; Tr. 347–48, 373–75.) According to Sturgill, these cracks demonstrated that some

36 FMSHRC Page 588

separation had occurred in the immediate roof. (Tr. 375–76, 394–95.) Although the cracks he
found in the test hole in entry No. 6 may have been located within the rock beam that Blue
Diamond’s roof bolts created, they also suggest to me a sensitive or weak roof with an elevated
likelihood of falling.
In this context, the increased marginal pressure created by the wide entry would add a
measure of danger to safety over the four to six hours these conditions existed. Further, these
types of roof conditions would make roof fall more likely. Moreover, Blue Diamond’s danger
flags in the No. 5 entry might limit access to the entry but would not address the dangers of a
weak roof. Based on the evidence before me, I therefore determine that the Secretary has met his
burden of establishing the second element of the Mathies test.
Inspector Sturgill indicated that the conditions on the 12 Section would contribute to roof
fall and that a roof fall is reasonably likely to result in reasonably serious injuries or death. (Tr.
335–36, 350–51.) As with each of the other three roof control violations at issue in these
consolidated cases, I do not doubt that a roof fall is reasonably likely to result in permanently
disabling injuries. As Sturgill’s notes succinctly observed: “Roof falls kill!” (Ex. G–24 at 34.)
Thus, I determine that the third and fourth elements of the Mathies test are satisfied. I therefore
conclude that Citation No. 7505299 was appropriately designated as S&S.
6.

Negligence and Unwarrantable Failure Determinations

Based on the evidence before me, the Secretary has not met his burden of demonstrating
that Blue Diamond’s conduct was unwarrantable or that it acted with high negligence. First,
Superintendent Williams’ meeting with Section Foreman Roberts and the continuous miner
operators to discuss the requirements of the pillar split supplement plan significantly mitigates
Blue Diamond’s negligence. The Secretary presented no evidence or testimony suggesting that
Roberts was present at the time the pillar split occurred, and I credit Williams’ testimony that
rank-and-file miners inadvertently mined the area too wide. Indeed, Williams’s meeting
regarding the pillar split supplement suggests an operator taking steps to comply with its plan
and protect the safety of miners. These are precisely the types of affirmative steps an operator
should take, and I determine that they weigh strongly in Blue Diamond’s favor. Second, I have
found that Blue Diamond had already supported the rock brow in entry No. 5. Although the
brow was loose when Sturgill arrived, Blue Diamond’s affirmative step to secure the brow and
remedy the condition suggests Respondent was not operating with indifference, reckless
disregard, or a serious lack of reasonable care.
Looking to the remaining unwarrantable failure factors, I note that the conditions at issue
in this case were not extensive in that they were present in only two of the nine entries of the
super section. I also note that the Secretary presented no evidence that any of Blue Diamond’s
past roof control violations involved improper pillar splits, but two of the other Orders before me
involve wide entries and draw rock. The violative conditions lasted between 4 to 6 hours, which
suggests that Blue Diamond should have known about the looseness of the otherwise bolted

36 FMSHRC Page 589

draw rock and rock brow. Although I recognize that the draw rock, rock brow, and wide portion
of entry No. 6 were fairly obvious and have been properly designated S&S, in weighing the
unwarrantable failure factors before me I determine that Blue Diamond’s conduct was not
aggravated.
These same factors convince me that Respondent did not act with high negligence. Blue
Diamond had a responsibility to follow its roof control plan, and I have found this violation to be
S&S. However, Respondent’s affirmative steps to discuss the requirements of the pillar split
plan and to bolt the rock brow indicate a concern for plan compliance and miner safety. I
therefore determine that Blue Diamond’s efforts mitigate its negligence.
Thus, I conclude that Blue Diamond’s conduct was not an unwarrantable failure and its
level of negligence was moderate. Citation No. 7505299 is hereby MODIFIED to remove the
unwarrantable failure designation and to lower the level of negligence from “reckless disregard”
to “moderate.”
7.

Repeated Flagrant Designation under Section 110(b)(2)

In view of my discussion above, the Secretary has likewise not carried his burden of
proving that Citation No. 7505299 is a repeated failure. Based on his own definition, the
Secretary must show that section 110(b)(2)’s “other criteria” have been satisfied. Yet the
Secretary has not presented evidence demonstrating that Citation No. 7505299 represented a
failure to make reasonable efforts to eliminate a known violation. Here, Superintendent
Williams met with his section foreman and miners to discuss pillar split plans. Moreover, Blue
Diamond had taken steps to bolt the rock brow. Although these steps did not ultimately prevent
the violation at issue, they represent reasonable steps on the part of the operator.
Because the Secretary has not demonstrated that Citation No. 7505299 satisfied section
110(b)(2)’s other criteria, I need not examine his evidence of prior failures. I conclude that the
Secretary has not proven Blue Diamond’s conduct to have been repeatedly flagrant under section
110(b)(2) of the Mine Act. Order No. 7505299 is therefore MODIFIED to remove the flagrant
designation.
8.

Penalty

The Secretary originally proposed a $154,500.00 civil penalty for this violation. Again,
nothing in the record suggests that the proposed penalty is inappropriate for the size of Blue
Diamond’s business or that it would infringe on Blue Diamond’s ability to remain in business.
Although I have found that this order was properly designated S&S, I have modified the order to
“moderate” negligence and removed the unwarrantable failure and flagrant designations. Of the
914 violations in Respondent’s history of violations report, 42 involved 30 C.F.R. §
75.220(a)(1). In considering all of the facts and circumstances in this matter and applying the
criteria of section 110(i), I hereby assess a civil penalty of $15,450.00.

36 FMSHRC Page 590

VII. ORDER
In light of the foregoing, I hereby ORDER the following:
1.

Section 104(d)(2) Order No. 4220150 is MODIFIED to a section 104(a) citation
by removing the S&S, unwarrantable, and reckless and repeated flagrant
designations, and lowering the cited level of negligence from “reckless disregard”
to “moderate.”

2.

Section 104(d)(2) Order No. 7521758 is AFFIRMED as S&S and MODIFIED
to a section 104(a) citation by removing the unwarrantable failure designation,
removing the reckless and repeated flagrant designations, and lowering the cited
level of negligence from “reckless disregard” to “moderate.”

3.

Section 104(d)(2) Order No. 7524542 is AFFIRMED as S&S and as an
unwarrantable failure, and MODIFIED to remove the reckless and repeated
flagrant designations, and to lower the cited level of negligence from “reckless
disregard” to “high.”

4.

Section 104(d)(1) Citation No. 7505299 is AFFIRMED as S&S and MODIFIED
to a section 104(a) citation by removing the unwarrantable failure designation,
removing the repeated flagrant designation, and lowering the cited level of
negligence from “high” to “moderate.”

5.

Blue Diamond shall PAY a civil penalty of $85,940.00 within 40 days of the date
of this decision.

6.

The section 110(c) penalty assessment case against Gary L. Jent is VACATED,
and that proceeding is DISMISSED.

Given the multiplicity of issues and docket numbers involved in this decision, the follow
chart summarizes the modifications and penalties associated with each of the violations before
me:
KENT 2008-584
Negligence Unwarrantable Flagrant
Failure

S&S

4220150 75.370(a)
(1)

Removed

To
“Moderate

Removed

Removed

To
$3,000.00
“104(a)”

7521758 75.220(a)
(1)

Affirmed

To
“Moderate”

Removed

Removed

To
$18,490.00
“104(a)”

36 FMSHRC Page 591

Type
of
Action

Penalty

Citation 30 C.F.R
/Order
§
No.

7505299 75.220(a)
(1)

Affirmed

Citation 30 C.F.R§
/Order
No.

S&S

7524542 75.220(a)
(1)

To
“Moderate”

Removed

Removed

To
$15,450.00
“104(a)”

KENT 2008-784
Negligence Unwarrantable Flagrant Type
Failure
of
Action

Affirmed To “High”

Affirmed

Removed N/A

KENT 2009-6
Vacated

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

36 FMSHRC Page 592

Penalty

$49,000.00

Distribution:
Christian P. Barber, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh
Avenue North, Suite 420, Nashville, TN 37219-1823
Willow Fort, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219-2456
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Circle, Suite 375, Lexington, KY 40513
Marco M. Rajkovich Jr., Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Circle, Suite 375, Lexington, KY 40513
Randall Scott May, Esq., Barret, Haynes, May & Carter, P.O. Drawer 1017, Hazard, KY 41702
/pjv

36 FMSHRC Page 593

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9987 / FAX: 202-434-9949

February 28, 2014
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

BUECHEL STONE CORPORATION,
Respondent

:
:
:
:
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 2008-406-M
A.C. No. 47-00398-146216
Docket No. LAKE 2010-153-M
A.C. No. 47-00398-199574
Docket No. LAKE 2010-154-M
A.C. No. 47-00398-199574
Mine: Chilton Quarry

DECISION
Appearances: Amanda K. Slater, Esq., U.S. Dept. of Labor, Office of the Solicitor, Denver,
Colorado, for Petitioner;
Denise Greathouse, Esq., Michael Best & Friedrich, LLP, Waukesha, Wisconsin,
for Respondent.
Before:

Judge Bulluck

These cases are before me upon Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration
(“MSHA”), against Buechel Stone Corporation (“Buechel”), pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815(d). The Secretary seeks
total civil penalties in the amount of $29,482.00 for 18 alleged violations of his mandatory safety
standards and one violation of the Act.
The parties reached an agreement that settled 12 citations prior to commencement of the
hearing in Madison, Wisconsin. Five citations were the subject of the hearing.1 The issues are:
(1) whether Respondent violated 30 C.F.R. §§ 56.14107(a), 56.15020, 56.16009, 56.20003(a),
and 46.9(a); (2) whether the violations were significant and substantial, where alleged; (3)
whether the degree of negligence charged is appropriate; and (4) whether the violations were

1

The hearing commenced with six violations at issue. Prior to close of the record, the
parties reached a settlement of Citation No. 6414887 (Lake 2010-154-M). Tr. 292.

36 FMSHRC Page 594

attributable to Buechel’s unwarrantable failure to comply with the Secretary’s safety standards,
where alleged. The parties’ Post-hearing Briefs are of record.
For the reasons set forth below, I AFFIRM the citations, as issued, assess penalties
against Respondent, and approve the parties’ Partial Settlement.
I. Stipulations
The parties stipulated as follows, respecting the five citations at issue:
1. Buechel is engaged in mining operations in the United States, and its mining
operations affect interstate commerce.
2. Buechel is the owner and operator of the Chilton Quarry, MSHA ID No. M/NM 4700398.
3. Buechel is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq.
4. The Administrative Law Judge has jurisdiction in this matter.
5. The subject citations were properly served by a duly authorized representative of the
Secretary upon an agent of Respondent on the dates and places stated therein, and may be
admitted into evidence for the purpose of establishing their issuance, but not for the truthfulness
or relevancy of any statements asserted therein.
6. The exhibits offered by Respondent and the Secretary are stipulated to be authentic,
but no stipulation is made as to their relevance or the truth of the matters asserted therein.
7. The operator demonstrated good faith in abating the violations.
8. Citation No. 6199159: The areas cited by Inspector Leppanen were workplaces and/or
passageways for purposes of 30 C.F.R. § 56.20003(a).
16. Citation No. 6414879: The Wilson saw at issue in this citation has a moving machine
part that could cause severe permanently disabling injuries.
18. Citation No. 6414885: There were no life jackets provided to the employees who
work on water pumps in the lower east pond at the Chilton Quarry.
19. Citation No. 6414885: On the day of the inspection, the water in the pond was
approximately 4 feet deep.
Sec’y Pre-hr’g Rep. at 1-3.

36 FMSHRC Page 595

II. Factual Background
Buechel owns and operates the Chilton Quarry, a surface dimensional stone operation
that cuts limestone for decorative use in the building construction industry, located between
Brothertown and Chilton, Wisconsin. Tr. 14-15. The quarry employed approximately 67
workers in 2008 and operated two shifts, 6:00 a.m. to 2:30 p.m. and 2:30 p.m. to 11:00 p.m.
Tr. 64.
On the morning of January 9, 2008, MSHA Inspector Robert Leppanen conducted a
regular E-01 inspection of the Chilton Quarry, accompanied by mine maintenance engineer
technician Steve Grossenbach. Tr. 16. Leppanen inspected the entire quarry, including the CMF
(“Chilton Manufacturing Facility”) building where the Wilson saw is located, and took field
notes as the inspection progressed. Tr. 16, 294.2 As a result of observing accumulations of mud,
water and saw cuttings on the travelway to the northeast and northwest of the Wilson saw,
Leppanen issued a housekeeping citation to Buechel for the operator’s failure to keep the areas
free of debris, posing a slip-and-fall hazard. Tr. 18-19; Exs. P-1, P-2.
On August 25, 2009, MSHA Inspector James Hautamaki, observed by MSHA Southeast
Assistant District Manager Fred Gatewood, conducted a spot inspection of the Chilton Quarry.
Tr. 124-26, 222-23, 256. According to Hautamaki, “a Buechel,” Steve Grossenbach, and site
manager Jason Zahringer also traveled with him. Tr. 125-26, 263. Inspector Hautamaki issued
several citations as a result of this inspection.
Although Hautamaki had inspected the Chilton Quarry on previous occasions, during this
inspection, he became aware of three settling ponds on mine property that had never been
inspected because they were not readily visible and because MSHA had not been advised that
they existed. Tr. 128-29. Hautamaki took photographs of the ponds and, because no miners
were working in the area, talked to Grossenbach about the work involved in maintaining them.
Tr. 129-31. Based on his observations of the work environment, and Grossenbach’s description
of seasonal maintenance work on the pumps submersed in the ponds, Hautamaki cited Buechel
for failure to provide its employees with personal floatation devices. Tr. 126, 131-33; Exs. P-19,
P-20.
Hautamaki inspected the CMF building and, although the Wilson saw was not running,
he observed that no guarding was installed around the saw’s perimeter and cited Buechel for
failure to prevent persons from contacting its moving parts when in operation. Tr. 181-82;
Exs. P-12, P-13. The inspector also issued another citation in the CMF building for a miner’s
failure to stay clear of a suspended load, after observing a forklift operator leave his cab and

2

The Wilson saw is a gantry-type wet saw that cuts large blocks of stone into slabs of
varying widths. Tr. 79. Splitters, also known as guillotines, located in front of the saw, chop the
slabs into smaller lengths. Tr. 41.

36 FMSHRC Page 596

position himself at or very near the edge of a large stone slab, propped up in mid-air by the tips
of the forks. Tr. 189-90; Exs. P-15, P-16.
Hautamaki also inspected the mine’s annual refresher and new miner training records
and, finding the forms incomplete, cited the operator for failure to provide the information
required by the Secretary’s Part 46 Training Regulations. Tr. 198-200; Exs. P-23, P-24.
III. Findings of Fact and Conclusions of Law
A. Citation No. 6199159
1. Fact of Violation
Inspector Leppanen issued 104(a) Citation No. 6199159, alleging a “significant and
substantial” violation of section 56.20003(a) that was “reasonably likely” to cause an injury that
could reasonably be expected to result in “lost workdays or restricted duty,” and was caused by
Buechel’s “moderate” negligence.” 3 The “Condition or Practice” is described as follows:
The northeast and northwest travel ways at the Wilson Saw were
not kept neat and orderly. There was spilled fine saw cuttings,
mud and water on the floor causing a slippery condition. If a
person accessing this area were to slip and fall on this spilled
material, lost time injuries could occur. These areas are accessed
daily; there were several footprints traveling through the spilled
material.
Ex. P-1. The citation was terminated the same day, after the cited material had been
removed. Tr. 47, 68.
In order to establish a violation of one of his mandatory safety standards, the Secretary
must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone
Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152 (Nov. 1989)).
The parties have stipulated that the areas cited by Leppanen were workplaces and/or
passageways. Stip. 8. The Secretary takes the position, therefore, that he need only establish
that they were not maintained in a clean and orderly manner in order to prove a violation of
section 56.20003(a). According to him, the photographs of the areas, alone, establish the
violation. Sec’y Br. at 5; Ex. P-2.

3

30 C.F.R. § 56.20003(a) provides that at all mining operations, “workplaces,
passageways, storerooms, and service rooms shall be kept clean and orderly.”

36 FMSHRC Page 597

Buechel argues that it is allowed a reasonable amount of time to clean the surrounding
area after the Wilson saw has been operating, and that the Secretary has failed to refute that the
saw had recently completed a project prior to the inspection. Resp’t Br. at 5.
Leppanen, assigned to the Marquette, Michigan field office, and experienced in surface
and underground mining and heavy equipment operation and maintenance, had worked for
MSHA for almost nine years when the case was heard. Tr. 10-13. Leppanen described the
accumulations of wet mud and saw cuttings around the Wilson saw as approximately one-eighth
to one-half inch deep, with tracks and footprints indicating that equipment and pedestrians had
traveled through them. Tr. 19-22, 46-47, 52-53; Ex. P-2. When asked his opinion as to how the
materials got onto the floor, the inspector stated the following:
It appeared to me that they came from the saw cuttings. They use
water to cool the saw blade and assist in the cutting of the stone.
Also, when they bring the stones into the building, they’ll bring
’em in with forklifts. So if it’s a wet condition outside, the mud
gets tracked-in in the treads on the forklifts, and it gets spilled onto
the floor area.
Tr. 22. Leppanen estimated the accumulations to extend approximately 20 feet long, by 6 feet
wide, and concluded that the cement floor was slippery by testing it with his foot. Tr. 22-23. He
stated that about 20 employees were working in the CMF building, and that he observed
employees running the guillotines in the general area of the saw, but not in the specific area
where he cited the mud. Tr. 24. He also stated that a lunchroom and foreman’s office are
located in the building, and that a bathroom is near the muddy area. Tr. 25, 44, 46. He testified
that the Wilson saw’s controls are near the saw, but not where the mud had accumulated. Tr. 49.
In Leppanen’s opinion, it was reasonably likely that someone would fall on the slippery cement
floor and suffer strains, sprains and broken bones, because the slippery areas were being
traveled; he also noted that pedestrians would have had to have stepped over a curb before
stepping down into the mud. Tr. 23-24; see 49-50. He also testified that he did not actually
witness anyone traveling through the material, that it was not being cleaned when he arrived on
the scene, that no warning signs or barriers blocked off the slippery areas, and that it had to have
taken a substantial amount of time for the saw cuttings to have accumulated. Tr. 26. Leppanen
explained that he ascribed moderate negligence to Buechel because the foreman should have
seen the muddy accumulations from his office window and had them cleaned up. Tr. 26-27, 5354; see 69. Finally, he stated that if there had been no evidence of foot traffic, he would not have
cited the condition. Tr. 54-55, 69.
Maintenance engineer technician Steven Grossenbach worked at Buechel from about
May 2007 until December 2009. Tr. 75. He testified that he had accompanied Leppanen when
he inspected the Wilson saw, that he had observed footprints and forklift tracks in what he
described as “kind of like a half-dried mud puddle,” and that it was he who had called for
someone in the area to clean up the material. Tr. 75-76, 79-80, 82, 83, 85, 88. Grossenbach
explained that in 2008, the Wilson saw was run two to three times weekly, that it was typically

36 FMSHRC Page 598

programmed in the afternoon to run through the night and, less frequently, into the morning
hours, depending on the job. Tr. 78. When asked about procedures to clean up the “mess”
created by operating the saw, Grossenbach explained that when the saw completes a cycle, the
oncoming shift cleans the floor, then moves the product by crane, loader or forklift, depending
on where the stone is needed. Tr. 79. He also stated that the Wilson saw operator may be in the
area while it is operating or, if a splitter operator has programmed the saw, that worker will have
moved on to the splitter. Tr. 81-82. Grossenbach placed the lunchroom about 100 feet from the
northeast accumulation and, while he conceded only the possibility that someone would use the
muddy area to get to it, he acknowledged having used the travelway, himself, to get from the
CMF building to the saw shop and assumed that others did so as well. Tr. 84-85, 88-89.
Maintenance worker David Petrie also testified that the Wilson saw is not run every day,
and that it operates at night and sometimes in the morning, depending on the product. Tr. 91.
He stated that he has witnessed workers use a fireman’s style hose to clean the leavings around
the saw. Tr. 92. When Petrie was shown a photograph of the cited northwest muddy area, he
identified it as “a walkway by that splitter,” that is a frequently traveled area for the person who
operates the saw. Tr. 93; Ex. P-2. He identified a second photograph, the northeast
accumulation, as an infrequently traveled area along the north wall, and stated that it was used to
access the hose to wash down the Wilson bay and to travel to the saw shop, the next building
north of the CMF building. Tr. 93-94; Ex. P-2. Finally, Petrie conceded not knowing how
frequently the area around the saw was cleaned. Tr. 95.
Buechel’s executive vice-president, Scott Buechel, corroborated that operation of the
Wilson saw depends upon the orders - - daily to three times a week - - and that it is typically
programmed during the day then, at the end of the shift, it runs at night and, occasionally, a
couple of hours into the morning. Tr. 98-99. He described a drainage system, running east to
west, that carries away much of the lime sediment prior to manual cleaning that occurs after the
bunkers are removed, and opined that the saw operator would be working in the area where the
footprints were observed in the sludge. Tr. 104, 107-08. Buechel gave a detailed description of
the operator’s cleaning procedure:
So we’ll have the forklifts go in, pick up the stone, put it onto the
splitter that’s right there; then the operator will go in with a crane,
pick up the bunker, move it to a place where they can get at it
comfortably and safely; and then after they’ve got that product out,
then they will go in, and they’ll clean down the area so that they
can get at everything at one time.
*
*
*
*
*
*
*
*
Typically they’ll use a water hose. Once in a while, if the sludge
is a little thicker, they may go in with a shovel just to clean it,
make it a little easier.

36 FMSHRC Page 599

Tr. 99-100.4 According to him, “they’re supposed to clean it up right after they remove the stone
out of there.” Tr. 100.
Scott Buechel testified that the company’s policy requires that the Wilson bay be cleaned
immediately. Tr. 110. Buechel asserts that the sets of footprints were that of the Wilson saw
operator preparing to clean the area after the saw had finished running. Resp’t Br. at 5. Scott
Buechel’s reaction to the photograph of the accumulation to the northwest of the saw was that “it
is a lime sludge . . . so the guys don’t want to walk there.” Tr. 107. His reaction to the northeast
accumulation was that “the only reason somebody’d be back there is to grab the water hose to
clean the floor.” Tr. 108; see 111. Petrie testified likewise, explaining that the saw operator
would be the only traveler to the water hose, for the sole purpose of cleaning the Wilson bay.
Indeed, the Secretary has presented no evidence as to when the saw was last operated but,
by the same token, neither has Buechel. The photographic evidence indicates that there was
pedestrian activity in the muddy northwest area around the splitter, as well as the muddy
northeast area near the water hose. Ex. P-2. If, however, as Buechel suggests, the saw had been
recently run, according to its cleaning policy, Leppanen would have observed the Wilson bay
being hosed-down. On the contrary, no evidence of cleaning or preparation for cleaning was
taking place. Despite the fact that the Wilson saw is computer programmed prior to operating, it
has been established that some foot traffic in the Wilson bay is necessary around the splitters but,
since no hosing was occurring, Buechel has provided no explanation for the footprints around
the hose. Furthermore, while it is unclear from the record whether the sets of footprints were
that of one or multiple individuals, Grossenbach’s and Petrie’s credible testimony establishes
that miners had been using the cited areas as a travelway to access the saw shop next door, and
the footprints are consistent with a finding that more than occasional travel occurred through the
hazardous muck. Because Buechel permitted the muddy, slippery areas around the Wilson saw to
be used as a travelway, despite the fact that they may not have been intended as such, it is clear
that the company’s cleaning policy was ineffective and subjected miners to slip-and-fall hazards.
Therefore, I find that section 56.20003(a) was violated.
2. Significant and Substantial
In Mathies Coal Company, the Commission set forth four criteria that the Secretary must
establish in order to prove that a violation is S&S under National Gypsum, 3 FMSHRC 822
(Apr. 1981): 1) the underlying violation of a mandatory safety standard; 2) a discrete safety
hazard - - that is, a measure of danger to safety - - contributed to by the violation; 3) a reasonable
likelihood that the hazard contributed to will result in an injury; and 4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature. 6 FMSHRC 1, 3-4 (Jan. 1984);
see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc.
v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).
4

Buechel described a bunker as a 6' by 6' by 8' metal pallet, upon which a slab of stone
is placed, that can be picked up by a crane and moved from place to place. Tr. 102.

36 FMSHRC Page 600

In U.S. Steel Mining Company, 7 FMSHRC 1125, 1129, (Aug. 1985), the Commission
provided additional guidance:
We have explained that the third element of the Mathies formula
“requires that the Secretary establish a reasonable likelihood that
the hazard contributed to will result in an event in which there is
an injury.”
6 FMSHRC at 1834, 1836 (Aug. 1984). We have explained that, in
accordance with the language of section 104(d)(1), it is the contribution of a
violation to the cause and effect of a hazard that must be significant and
substantial. U. S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 1984);
U. S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
Evaluation of the third criterion, the reasonable likelihood of injury, should be made in
the context of “continued normal mining operations.” U.S. Steel Mining Co., 6 FMSHRC 1573,
1574 (July 1984). Moreover, resolution of whether a violation is S&S must be based “on the
particular facts surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1998);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987). More recently, the
Commission clarified that the “the Secretary need not prove a reasonable likelihood that the
violation itself will cause injury.” Musser Eng’g, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010).
The Commission also emphasized the well-established precedent that “the absence of an injuryproducing event when a cited practice has occurred does not preclude a determination of S&S.”
Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand &
Gravel, Inc., 18 FMSHRC 853,857 (June 1996)).
The fact of violation has been established. The second criterion of the Mathies test has
been met in that miners traveling through the muddy, slippery travelway were subjected to slipand-fall hazards. The focus of the S&S analysis, then, is the third and fourth Mathies criteria,
i.e., whether the hazard contributed to was reasonably likely to result in an injury, and whether
the injury would be serious. Clearly, slips and falls on a cement surface are reasonably likely to
result in musculoskeletal injuries such as strains, sprains and broken bones of a serious nature
that are, at least, reasonably likely to result in lost workdays or restricted duty. Therefore, I find
that the violation was S&S.
3. Negligence
The record makes clear that Buechel recognized or should have recognized its
responsibility to maintain its workplace and passageways free of hazards, as evidenced by its
policy that the Wilson bay be cleaned immediately following a production cycle. It is also
evident that its policy lacked vigor, since the muddy byproduct of production was allowed to
accumulate, and miners were permitted to move about in slippery, hazardous conditions.
Furthermore, the maintenance shop foreman’s office provides a clear view of the work floor. Tr.
27. Accordingly, because the Secretary did not establish when the Wilson saw had last operated

36 FMSHRC Page 601

and, therefore, how long the condition had existed, I find that Buechel was moderately negligent
in violating the standard.
B. Citation No. 6414879
1. Fact of Violation
Inspector Hautamaki issued 104(a) Citation No. 6414879, alleging a violation of section
56.14107(a) that was “unlikely” to cause an injury that could reasonably be expected to be
“permanently disabling,” and was caused by Buechel’s “high” negligence.5 The “Condition or
Practice” is described as follows:
There were no guards provided around the Wilson saw in the CMF
building to prevent an employee from contacting the saw when in
operation. The 48" saw could cause severe injuries to a person if
contacted.
Ex. P-12. The citation was terminated by erecting a post, cable and chain barricade around the
Wilson saw. Ex. P-13.
The Secretary argues that Buechel knew that the Wilson saw required guarding, since the
operator has five similar saws located in another building at the Chilton Quarry, which are
guarded. Sec’y Br. at 17. Moreover, he points out that Buechel stipulated that the Wilson saw’s
moving parts can cause severe permanently disabling injuries. Stip. 16.
It is undisputed that the Wilson saw was not running during the inspection, and
Hautamaki opined that it had last been run the day before. Tr. 161. Buechel concedes that the
Wilson saw was unguarded, but argues that it was not provided with fair notice of what the
standard requires because MSHA had never cited it during prior inspections. Resp’t Br. at 6, 8.
Furthermore, Buechel contends that the standard is broad and ambiguous, since its language
neither specifies the extent of guarding required, nor how the moving parts shall be guarded.
Resp’t Br. at 7.
Scott Buechel’s testimony is illuminating in resolving the issues raised by this citation.
He stated that MSHA had provided the CMF building with a courtesy safety startup “preinspection” when the Wilson saw was installed in the summer of 2006 and that, between 2006
and 2008, the saw had been operating without any guards or barriers except a set of cement
blocks that run perpendicular to the east-west movement of the saw. Tr. 293-98, 300-03; Exs. R3, R-4, R-5,
P-13. Buechel testified that, “on this particular saw, because we had inspectors

5

30 C.F.R. § 56.14107(a) requires that “[m]oving machine parts shall be guarded to
protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys,
flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.”

36 FMSHRC Page 602

coming through and doing inspections on the entire building, on the saws, splitters, everything,
because they didn’t bring anything up, I thought we were in compliance.” Tr. 304; see 305.
The guarding standard at issue may be broad, but it is not ambiguous. Buechel was not
new to the limestone cutting business in 2006 when it installed a new Wilson saw. Its fair notice
defense is unavailing, especially since, for several years, it had been operating five similar saws
outfitted with the same post, cable and chain guarding that it installed around the Wilson saw to
abate the hazard. Tr. 305-09. Indeed, Buechel’s attempt to transfer responsility for bypassing
the standard’s requirements to MSHA inspectors was laced with an admission that “[t]here’s
probably no good reason that we shouldn’t have . . . put the guarding on.” Tr. 309; see Tr. 306.
In short, the Wilson saw has a blade four feet in diameter, and is capable of seriously maiming or
killing a person upon contact. It is painfully obvious that it should have been provided with a
barricade to ward off access during operation and, the fact that Buechel had not been cited
previously does not absolve the operator of its responsibility to know and adhere to the safety
standards designed to ensure a safe work environment for its employees. Therefore, I find that
the Secretary has proven that Buechel violated section 56.14107(a).
2. Negligence
Despite the enormous size of the saws at the quarry and the obvious danger of contacting
the blades during their operation, the evidence establishes that Buechel was on notice that the
Wilson saw required guarding but, for some reason, took the calculated risk of relying upon
MSHA’s apparent oversight as a justification for its prolonged non-compliance. The low
concrete barriers, while presenting some obstacle to direct contact, have been given minimal
weight, given Buechel’s years of operating five other saws with compliant guarding that
dangers-off prohibited areas of contact. Considering the similarity of the saws, Buechel’s
actions raise a legitimate question as to why guarding was maintained on the other five if the
company actually believed that it was an unnecessary component of operating the Wilson saw.
Finding no mitigating circumstances that would justify Buechel’s inconsistency, and also noting
that, during the same inspection, Hautamaki also cited the operator for not having the area
guarding in place on the other saws, I find that Buechel was lax in compliance and highly
negligent in violating the standard. See Tr. 186-87.
C. Citation No. 6414880
1. Fact of Violation
Inspector Hautamaki issued 104(a) Citation No. 6414880, alleging an S&S violation of
section 56.16009 that was “reasonably likely” to cause an injury that could reasonably be
expected

36 FMSHRC Page 603

to be “permanently disabling,” and was caused by Buechel’s “moderate” negligence.6 The
“Condition or Practice” is described as follows:
The operator of the Linde fork lift Co. #C12015 had a slab of stone
6' by 8' by 6' that was propped up by the forks that were
approximately four feet in the air. The stone was at approximately
a 45 degree angle when he got out of the cab to clean the stone of
dirt. The operator had to go close to the suspended load to clean it.
If the load were to shift or the forks were to drop, the employee
would suffer serious injuries.
Ex. P-15. The citation was terminated immediately because the forklift operator, upon sighting
the MSHA inspector, lowered the slab from suspension, and management discussed safe work
practices with him. Buechel has conceded the violation, but contests the S&S and negligence
allegations. Tr. 180.
2. Significant and Substantial
The first two Mathies criteria have been met, in that the violation has been established,
and it is obvious that standing in close proximity to the suspended limestone slab heightened the
danger of the forklift operator sustaining serious injury were an accident to occur. Here, again,
the focus shifts to the third and fourth Mathies criteria, to determine the reasonable likelihood of
the hazard resulting in an injury, and whether the injury would be of a serious nature.
Hautamaki opined that the forklift operator was reasonably likely to be injured were the
slab to have slipped and slid out from its propped-up position, or cracked and broken, or were
the forks to have failed, or the brakes to have unexpectedly released. Tr. 196-97, 254. While he
believed that Buechel had properly trained its employees to perform the work safely, he noted
the presence of a supervisor in the area where the violation occurred and, in his opinion, Buechel
was not enforcing its training. Tr. 198.
Buechel’s contest of the S&S designation relies heavily upon the fact that Hautamaki
observed the forklift operator cleaning the stone from a distance of approximately 50 feet and,
therefore, the operator contends that he could not see exactly how close the miner stood to the
stone. Moreover, Buechel points out that the inspector was unclear as to whether the miner
lowered the stone onto the ground or on top of another stone resting on a pallet. Resp’t Br. at 11;
see Tr. 248; Ex. P-16. It follows, according to Buechel, that “since it is unclear whether there
was a stone and a pallet under the stone in question at the time that the employee wiped off the
dirt from the stone, there is a strong possibility that the employee was never in danger of
dropping the stone on his feet.” Resp’t Br. at 12.

6

30 C.F.R. § 56.16009 provides that “[p]ersons shall stay clear of suspended loads.”

36 FMSHRC Page 604

Buechel’s position lacks merit primarily because it is premised upon the assumption that
injury was likely only if the miner’s feet were situated under the slab. Indeed, its own witness,
Zahringer, observed the forklift operator’s conduct and recognized the danger since the “stone
could slip off the forks or whatever.” Tr. 291. Clearly, the forklift could have moved, if only
slightly, the stone could have shifted from its base, or it could have fragmented and fallen. Any
unforseen movement of the equipment, its forks, or the stone was reasonably likely to result in
broken bones or crush injuries to the feet, legs, arms or torso, and the injuries were reasonably
likely to be permanently disabling. Therefore, I find that the violation was S&S.
3. Negligence
The Secretary contends that, despite adequate training of its employees, enforcement of
Buechel’s safety policies and procedures lacks vigor. Sec’y Br. at 22. Buechel argues that it
should be charged with “low” rather than “moderate” negligence, because the forklift operator
was fully aware that his conduct ran afoul of company safety policy, as evidenced by his haste in
lowering the stone and returning to his cab upon his awareness of being observed by the
inspection team. Resp’t Br. at 12. The evidence establishes that Buechel adequately task trained
its employees in safe work procedures, and that a supervisor was on-site when the violation
occurred. However, because Buechel offered no evidence to rebut the appearance that it was lax
in oversight of its safety policies, and because the miner’s conduct was very dangerous, I find
that the operator was moderately negligent in violating the standard.
D. Citation No. 6414885
1. Fact of Violation
Inspector Hautamaki issued 104(d)(1) Citation No. 6414885, alleging an S&S violation
of section 56.15020 that was “reasonably likely” to cause an injury that could reasonably be
expected to be “fatal,” and was caused by Buechel’s “high” negligence and “unwarrantable
failure” to comply with the standard.7 The “Condition or Practice” is described as follows:
A life jacket or belt was not provided for miners who were
required to work at the saw shop water ponds. One miner checked
the ponds daily. Other miners changed out pumps and drained and
cleaned out the ponds on an as-needed basis. One of the miners
could fall into the water and would suffer serious injury.
Management engaged in aggravated conduct constituting more
than ordinary negligence in that they were aware miners worked at

7

30 C.F.R. § 56.15020 provides that “[l]ife jackets or belts shall be worn where there is
danger from falling into water.”

36 FMSHRC Page 605

the ponds and that they were not provided life jackets. This was an
unwarrantable failure to comply with a mandatory standard.
Ex. P-19. The citation was terminated by providing life jackets for use by Buechel’s miners, as
needed. Tr. 139.
The parties have stipulated that life jackets were not provided to the employees who
maintained the water pumps in the lower east pond, and that water in the pond on the day of
inspection was approximately four feet deep. Stips. 18, 19.
The Secretary contends that periodic maintenance of the submersible pumps requires that
miners access the pond by traveling down a sand and gravel embankment to the work platform,
that the slope and platform are often slippery, and that a hose is positioned in the middle of the
platform - - conditions that posed tripping hazards that heightened the likelihood of falling into
the water and drowning. Sec’y Br. at 9-10; Ex. P-20. Furthermore, the Secretary asserts that
changing-out the pumps requires a miner to “lean out over the water,” clearly increasing the
likelihood of accidental drowning. Sec’y Br. at 9.
Buechel makes several arguments to support its position that the citation should be
vacated. It argues that it was not given fair notice of the requirements of the standard, and that
its employees were using proper fall protection, but not any floatation device, which is not
required by the standard. Resp’t Br. at 13, 15. Furthermore, according to the operator, the
standard does not specify exclusive use of floatation devices to prevent drowning. Resp’t Br. at
16-17. Finally, the operator argues that the water is only six inches deep when maintenance is
being performed, and “there is not a concern for an employee falling and drowning in six inches
of water. If it is a concern, then even a life jacket cannot prevent an employee from drowning in
six inches of water.” Resp’t Br. at 17.
Hautamaki explained that three settling ponds act as a filtration system for the
sedimentary byproduct of operating the large saws, and provide recycled water for cooling and
lubricating the saw blades during the stone cutting process. Tr. 128. According to him, he only
learned of the ponds, located in a valley, after expressing doubt that the small concrete pond
behind the CMF building had the capacity to feed the six saws operating at the quarry. Tr. 12829, 146. He testified that no one was present at the cited lower east pond, and that Grossenbach
explained to him that miners repair the submersible pumps when necessary, remove them in the
Fall to keep them from freezing in place, then return them to service in the Spring, Upper
Peninsula weather permitting. Tr. 130-31. Grossenbach did not mention the use of fall
protection in his discussion with Hautamaki. Tr. 144, 152. Removing a pump entails working
from a narrow platform, accessing a hatch, and attaching a chain hoist to the pump to lift it out of
the water. Tr. 131; see Ex. P-20. Hautamaki expressed concern that seasonal weather conditions
can make the slope going down to the pond, as well as the work platform, slippery. Tr. 132-33.
He estimated that work is performed one foot above and within inches of the water, and opined
that “[a]nybody working that close to the edge, you’re concentrating on lifting the pumps out,

36 FMSHRC Page 606

you could fall in, especially if it was icy or frost or dew or anything.” Tr. 133-34. Hautamaki
was also told by Grossenbach that three maintenance workers, including himself, performed the
work. Tr. 133. He also stated that, as a general rule of thumb, working within six feet of water’s
edge requires a life jacket. Tr. 133.
David Petrie testified that he changes-out the submersible pumps up to three times a year
with the assistance of a partner, either Grossenbach or Ryan Blindauer. Tr. 154-55, 157, 164.
He explained that the pumps are sunk in a cement pit, 5 feet deep by 15 feet wide, located at the
edge of the work platform. Tr. 156, 158. During maintenance, water is pumped from the pit
back into the pond so as to keep the pit water level at six inches and, according to him, work is
performed three feet away from the surrounding pond. Tr. 156-57. When asked whether he used
fall protection, he responded that he wore a harness with a lanyard attached to the steel A-frame
stationed on the work platform directly above the pit, used to support the weight of the pumps
hoisted out of the pit with a hand winch. Tr. 155-56, 163-65. He testified that the harnesses are
stored in the CMF building, that Grossenbach had also worn a harness when they had worked
together, and that he, Petrie, had not been trained in using the harness. Tr. 159-61. Petrie
estimated the A-frame to be six to seven feet tall, and the submersible pumps to weigh 100
pounds, but he was unable to estimate the A-frame’s weight capacity. Tr. 159. While he denied
having fallen into the water, Petrie stated that the pumps are changed “year round, and I think
once you pull the pump up, it gets icy, and it’s slippery. I never fell, but it’s slippery.” Tr. 16061, 167. He testified that, as a result of the operator being cited, he has been using both harness
and life jacket when performing his duties at the ponds. Tr. 161-62.
Grossenbach testified that he and Petrie had worked together to change-out the pumps,
and that they, as well as Blindauer, had used a harness clipped onto the A-frame as fall
protection, although he was not certain that fall protection was always used. Tr. 168-70. On
cross-examination, Grossenbach acknowledged that he had written to the MSHA North Central
District Office seeking review of the citation, and did not mention use of fall protection among
the mitigation factors set forth to challenge the gravity of the violation. Tr. 172, 175; Sec’y Br.,
Ex. A. Moreover, he admitted to being unprotected on the work platform prior to tying onto the
A-frame. Tr. 176-79.
Section 56.15020, a provision under the Personal Protection Subpart, specifically
addresses the danger of falling into water, and is intended to prevent drowning. The plain
meaning of “life jacket” is not in dispute. Contrary to Respondent’s contention that the standard
does not provide fair notice of its requirements, comprehension of its terms only requires
application of ordinary syntactical rules, and the term “life jacket” provides the modifier for the
alternative floatation device, read as “life belt;” therefore, the standard is clearly intended to
require use of one floatation device or the other.”8 This standard is distinguishable from the
8

A “life jacket” is defined as “a life preserver in the form of a sleeveless jacket or vest.”
The American Heritage Dictionary of the English Language 1011 (4th ed. 2009). A “life
(continued...)

36 FMSHRC Page 607

more general companion standard under the same Subpart, section 56.15005, which requires use
of “safety belts” or “lines” to prevent injury from falling, without regard to any specific scenario.
Because neither life jackets nor life belts were provided by Buechel for use by the maintenance
crew servicing the settling ponds, I find that the standard was violated.
2. Significant and Substantial
The fact of violation has been established. The second criterion of the Mathies test has
been satisfied, i.e., the lack of protection for maintenance workers, unequipped with personal
floatation devices and exposed to working in slippery, wet conditions in close proximity to
water, contributed to the hazard of drowning. The third and fourth Mathies criteria, the
reasonable likelihood of injury and the seriousness of the injury, have also been met. The record
belies Buechel’s contention that its maintenance crew used harnesses and lanyards. Grossenbach
made no mention of fall protection when describing to Hautamaki how the ponds were
maintained, nor did he mention it to MSHA as a mitigating factor in his written request for
review of the citation. Petrie’s testimony that fall protection was used does little, if anything, to
substantiate Buechel’s claim, especially given that this defense was not raised earlier and,
according to Petrie, no training whatsoever was provided for use of fall protection equipment.
Furthermore, even if fall protection had been used, the operator has not established that tethering
to the A-frame prevented slips and falls into the water and, more importantly, drowning. Petrie
testified that his estimated seven foot lanyard allowed him to stretch out at the edge of the
platform to work. The actual length of the alleged lanyard was never established, nor the
capacity of the A-frame to support the weight of the pump and hoisting gear, along with the
added weight of two workers. As Hautamaki pointed out, seasonal weather conditions make the
work treacherous at water’s edge and, a slip-and-fall on a concrete platform into the water is
reasonably likely to involve a head or musculoskeletal injury, the water temperature may cause
hypothermia, and any attempt at rescue by a workmate, also unprotected, subjects the rescuer to
drowning as well. This is true whether miners were exposed to six inches of water in the pit or
four feet of water in the pond. See Exs. P-22, P-23. Consequently, with or without fall
protection, I find that the violation was S&S.
3. Negligence and Unwarrantable Failure
Unwarrantable failure is aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 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 2001-04; Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136. The Commission has
8

(...continued)
preserver” is defined as “a buoyant device, usually in the shape of a ring, belt or jacket, designed
to keep a person afloat in the water.” Id. A “life belt” is defined as “a life preserver worn like a
belt.” Id.

36 FMSHRC Page 608

recognized the relevance of several factors in determining whether conduct is “aggravated” in
the context of unwarrantable failure, such as the extensiveness of the violation, the length of time
that the violation has existed, the operator's efforts in eliminating the violative condition, and
whether the operator has been put on notice that greater efforts are necessary for compliance.
See Consolidation Coal Co., 22 FMSHRC 328, 331 (Mar. 2000); Mullins & Sons Coal Co., 16
FMSHRC 192, 195 (Feb. 1994). The Commission has also considered whether the violative
condition is obvious or poses a high degree of danger. Windsor Coal Co., 21 FMSHRC 997,
1000 (Sept. 1999) (citing BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992);
Warren Steen Construction, Inc., 14 FMSHRC 1125, 1129 (July 1992); Quinland Coals, Inc., 10
FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984)). Each
case must be examined on its own facts to determine whether an actor's conduct is aggravated, or
whether mitigating circumstances exist. Eagle Energy, Inc., 23 FMSHRC 829, 834 (Aug. 2001)
(citing Consolidation Coal, 22 FMSHRC at 353).
The record establishes that the large saws had been operating at the Chilton Quarry for
several years and, therefore, the three settling ponds would have also been providing filtration to
the saws during that time span. Buechel operated and maintained the ponds without MSHA’s
knowledge and oversight until Hautamaki stumbled upon them, and provided no explanation as
to why MSHA was not advised of their existence during prior inspections. Consistent with its
conduct in failing to guard the Wilson saw, Buechel knowingly operated in a non-compliant
manner so long as its behavior evaded detection on MSHA’s radar screen. Consequently, I do
not find the operator’s lack of disclosure inadvertent, but rather a deliberate attempt to escape
governmental scrutiny and regulation until it got caught. Other than the dubious testimony that
fall protection was used by the maintenance crew, albeit without any training, the record is bereft
of any indication that Buechel had a water safety policy or took water safety seriously, that it
task trained its workers on servicing the pumps, or that it kept abreast of safe work practices and
the requirements of the regulation. Moreover, Buechel’s conduct was highly negligent given
that Grossenbach often performed the work with Petrie and, as the supervisor, should have
appreciated the danger posed by the work environment, and assured that personal floatation
devices were made available and used to perform the tasks safely. Therefore, I impute
Grossenbach’s high negligence to the operator, and find that the Secretary has met his burden of
establishing a serious lack of reasonable care by Buechel that constituted an unwarrantable
failure to comply with the standard.
E. Citation No. 6414886
1. Fact of Violation
Inspector Hautamaki issued 104(a) Citation No. 6414886, alleging a violation of section
46.9(a) that was “non-significant and substantial,” with “no likelihood” of causing injury or
illness,

36 FMSHRC Page 609

reasonably expected to result in “no lost workdays,” and was caused by Buechel’s high
negligence.9 The “Condition or Practice” is described as follows:
The Part 46 training record form used by the operator did not include the mine
name, MSHA ID number, or location of the training. Several records had not
been signed by the person responsible for training.
Ex. P-23. The citation was terminated after the annual refresher training records were completed
and signed. Buechel has conceded the violation, but contests the negligence allegation.
Hautamaki testified that during an inspection four months earlier in May 2009, as a result
of finding new miner and annual refresher training records incomplete, he spent an hour
instructing Jason Zahringer as to the information required on the training forms and, therefore,
how to comply with Part 46 training regulations. Tr. 198-200. According to the inspector, he
found the records in the same shape when he returned in August, despite his warning to
Zahringer that “you’ve got to get these records up to date because if you don’t, the next inspector
is going to give you a citation for it.” Tr. 200. Hautamaki also pointed to several resources
available to mine operators to assist in compliance with training standards, including MSHA’s
website and Program Policy Manual.
Tr. 200-01; see Ex. P-24.
Buechel contends that there were “minor problems” with its training forms, that
Zahringer had been using forms completed by the former safety director as his guide, and that
Hautamaki only instructed him to sign the forms during the earlier inspection. Resp’t Br. at 1718.
According to Zahringer, he used old training forms as his model and, based on
Hautamaki’s instruction during the May inspection, he signed them, although he was uncertain
whether he had signed them all. Tr. 265, 280. Zahringer maintains that Hautamaki never
pointed out any deficiencies other than lack of signatures, and that the deficiencies noted in
August, such as lack of the mine ID number and location of the training, were never mentioned
in May. Tr. 266-68, 279. Zahringer admitted unfamiliarity with MSHA’s website,
characterizing it as “so hard to find what you want,” as well as MSHA’s Program Policy
Manual. Tr. 266, 271, 278. In response to questions about the reasonableness of familiarizing
himself with the standard pertaining to training records, Zahringer generally described Volume
30 of the Code of Federal Regulations as “very vague,” and testified that he did not recall seeing
the regulation. Tr. 280-282.
9

30 C.F.R § 46.9(a) requires that mine operators “record and certify on MSHA form
5000-23, or on a form that contains the information listed in paragraph (b) of this subsection, that
each miner has received training under this part.” 30 C.F.R § 46.9(b) requires the form to
include the following: (1) the name of the trainee; (2) the type of training; (3) the duration, date
and name of competent trainer; (4) the mine name, ID, and training location; and (5) signed
certification that training has been completed.

36 FMSHRC Page 610

The training records reviewed by Hautamaki in May were the same that he reviewed in
August. Tr. 269. Jason Zahringer had been the site manager responsible for maintaining the
mine’s training records since January 2008, more than a year before the earlier inspection. Tr.
265. The record is clear that in May, Hautamaki accepted the same excuse advanced in August,
but elected to give Buechel an opportunity to cure the deficiencies in its record-keeping. By
failing to avail itself of any readily available resource other than the existing, deficient records,
Buechel continued to disregard its responsibility to familiarize itself with the standard. The duty
falls on the operator to know and implement the regulations that govern its safe operation, not
MSHA, and, consequently, MSHA is not required, metaphorically, to hold its hand. I find none
of the excuses advanced by Buechel to constitute mitigating factors that would warrant lower
negligence, especially because it failed to heed MSHA’s warning that, with minimal effort,
should have resulted in full compliance. Therefore, I find that Buechel was highly negligent in
violating the standard.
IV. Penalties
While the Secretary has proposed a total civil penalty of $29,482.00, the Judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Co., 5
FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984). The penalty criteria
are: the operator’s history of previous violations; the appropriateness of the penalty to the size of
the operator’s business; whether the operator was negligent; the effect of the penalty on the
operator’s ability to continue in business; the gravity of the violation; and the demonstrated good
faith efforts in achieving rapid compliance after notification of the violation. 30 U.S.C. § 820(i).
The parties stipulated that Buechel demonstrated good faith in abating the violations.
Stip. 7. Buechel is a medium-sized operator and, in the absence of any contention by the
operator of an inability to pay, I find that the penalty will not affect the operator’s ability to
continue in business. See Sec’y Pen. Pet., Ex. A. Buechel’s relevant history of similar
violations includes one prior housekeeping violation and one guarding violation, which I find
does not constitute an aggravating factor in assessing appropriate penalties. Ex. P-28.
The remaining criteria involve consideration of the gravity of the violations and
Buechel’s negligence in committing them. These factors have been discussed fully, respecting
each violation. Therefore, considering my findings as to the six penalty criteria, the penalties are
set forth below.
A. Citation No. 6199159
It has been established that this S&S violation was reasonably likely to cause an
injury that could reasonably be expected to result in lost workdays or restricted duty, and that it
was timely abated. While I find that the violation was serious, without evidence establishing

36 FMSHRC Page 611

when the Wilson saw had last operated and, therefore, how long the violation had existed, I find
that Buechel was moderately negligent. Applying the civil penalty criteria, I find that a penalty
of $745.00, as proposed by the Secretary, is appropriate.
B. Citation No. 6414879
It has been established that this S&S violation was unlikely to cause an injury that
could reasonably be expected to be permanently disabling, and that it was timely abated.
Buechel’s awareness of the requirements of the standard was demonstrated by its guarding of
five similar saws. Because the operator knowingly failed to guard the Wilson saw, I find that it
was highly negligent. Applying the civil penalty criteria, I find that a penalty of $745.00 is
appropriate.
C. Citation No. 6414880
It has been established that this S&S violation was reasonably likely to cause an
injury that could reasonably be expected to be permanently disabling, and that it was timely
abated. I find that the violation was very serious and, given that a supervisor was on-site,
Buechel’s safety policy lacked vigor. Because of evidence that the operator adequately trained
its workers, I find that it was moderately negligent. The Secretary seeks a penalty substantially
elevated from his originally proposed penalty of $1,111.00 based on the fact that the violation
occurred in an area where supervisors are frequently present. Sec’y Br. at 22. Applying the civil
penalty criteria, because of the demonstrated ineffectiveness of its supervisory oversight, I find
that a penalty of $1,800.00 is appropriate.
D. Citation No. 6414885
It has been established that this S&S violation was reasonably likely to cause an
injury that could reasonably be expected to be fatal, and that it was timely abated. I find that
Buechel’s failure to provide personal floatation devices for workers exposed to slips-and-falls
into water, was due to high negligence and a serious lack of reasonable care that constituted an
unwarrantable failure to comply with the standard. Applying the civil penalty criteria, I find that
a civil penalty of $8,209.00, as proposed by the Secretary, is appropriate.
E. Citation No. 6414886
It has been established that this record-keeping violation had no likelihood of
causing an injury, and that it was timely abated. Buechel had been placed on notice during a
previous inspection of the standard’s requirements, and that its training records were incomplete.
Because no significant effort to perfect the training records was made, I find that the operator
was highly negligent. While the Secretary has proposed a penalty of $108.00, applying the civil
penalty criteria, I find that a penalty of $200.00 is appropriate.

36 FMSHRC Page 612

V. Approval of Settlement
The Secretary has filed a Motion to Approve Partial Settlement and Order
Payment respecting thirteen of the seventeen citations involved in docket Nos. LAKE 2008-406M and LAKE 2010-154-M. A reduction in penalty from $18,564.00 to $8,296.00 is proposed.
The citations, initial assessments, and the proposed settlement amounts are as follows:

Citation No.

Initial
Assessment

Proposed
Settlement

LAKE 2008-406-M

6199164
6199172
6199173

$ 1,111.00
$ 1,944.00
$ 1,944.00

$ 950.00
$ 1,499.00
$ 1,400.00

LAKE 2010-154-M

6414874
6414875
6414876
6414877
6414878
6414881
6414882
6414883
6414884
6414887

$ 499.00
$ 224.00
$ 499.00
$ 150.00
$ 745.00
$ 224.00
$ 150.00
$ 8,209.00
$ 2,473.00
$ 392.00

$ 499.00
$ 224.00
$ 499.00
$ 150.00
$ 500.00
$ 224.00
$ 150.00
$
0.00
$ 2,000.00
$ 300.00

TOTAL: $18,564.00

$ 8,296.00

I have considered the representations and documentation submitted in these cases,
and I conclude that the proffered settlement is appropriate under the criteria set forth in section
110(i) of the Act.

36 FMSHRC Page 613

ORDER
WHEREFORE, it is ORDERED that Citation Nos. 6199159, 6414879, 6414880, 6414885 and
6414886 are AFFIRMED, as issued; that Citation No. 6414883 is VACATED; that Citation
Nos. 6199164, 6199172, 6199173, 6414874, 6414875, 6414876, 6414877, 6414881, 6414882
and 6414884 are AFFIRMED, as issued; that the Secretary MODIFY Citation No. 6414878 to
reduce the level of gravity to “unlikely” and “non-significant and substantial,” and Citation No.
6414887 to reduce the degree of negligence to “moderate;” and that Buechel PAY a civil penalty
of $19,995.00 within 40 days of the date of this Decision.

/s/ Jacqueline R. Bulluck
Jacqueline R. Bulluck
Administrative Law Judge
Distribution: (Certified Mail)
Amanda K. Slater, Esq., Office of the Solicitor, U.S. Dept. of Labor, 1999 Broadway, Suite 800,
Denver, CO 80202-5708
Denise Greathouse, Esq., Michael Best & Friedrich LLP, Two Riverwood Place, N19 W24133
Riverwood Drive, Suite 200, Waukesha, WI 53188-1174

36 FMSHRC Page 614

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

February 28, 2014
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.
CONSOLIDATION COAL, CO.
Respondent.

:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2011-940
A.C. No. 46-01968-000243606
Mine: Blacksville No. 2

DECISION
Appearances: Bryan C. Shieh, Esq.; James, McClammer, Esq., Department of Labor,
Philadelphia, PA for Petitioner;
R. Henry Moore, Esq.; Patrick W. Dennison, Esq., Jackson Kelly, PLLC for
Respondent
Before:

Judge Barbour

This civil penalty proceeding comes before the Court pursuant to sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, as amended (“Mine Act” or “Act”). 30 U.S.C.
§§ 815, 820. The Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health
Administration (“MSHA”) petitions for the assessment of $54,500 in civil penalties for one
alleged violation of mandatory safety standard 30 C.F.R. §75.202(a) and two alleged violations
of mandatory safety standard 30 C.F.R. § 75.220(a)(1). Section 75.202(a) requires in pertinent
part that the roof and ribs of areas where persons work or travel be supported to protect miners
from roof and rib falls.1 Section 75.220(a)(1) requires mine operators to develop and follow a

1

Section 75.202(a) states:
The roof, face and ribs of areas where persons
work or travel shall be supported or otherwise
controlled to protect persons from hazards
related to falls of the roof, face or ribs and coal
or rock bursts.

36 FMSHRC Page 615

suitable roof and rib control plan approved by the MSHA District Manager.2 The Secretary
charges that the alleged violations occurred at the Blacksville No. 2 Mine, an underground
bituminous coal mine owned and operated by Consolidation Coal Company (“Consol” or “the
company”). The alleged violation of section 75.202(a) is cited in an order issued pursuant to
section 104(d)(2) of the Act.3 The Secretary proposes a civil penalty of $50,700 for the alleged
violation. The two alleged violations of section 75.220(a)(1) are charged in citations issued
pursuant to section 104(a) of the Act.4 The Secretary proposes a civil penalty of $1,900 for each
alleged violation. The Secretary further asserts that the alleged violation of section 75.202(a)
was a significant and substantial contribution to a mine safety hazard (an “S&S” violation) and
that it was caused by the company’s unwarrantable failure to comply with the standard and by
the company’s high negligence. As for the two alleged violations of section 75.220(a)(1), the
Secretary asserts that although they were unlikely to result in lost work days or restrictive
injuries, they were the result of the company’s “high” negligence.

2

Section 75.220(a)(1) states in pertinent part:

Each mine operator shall develop and follow a
roof control plan, approved by the District Manager,
that is suitable to the prevailing geological conditions
and the mining system to be used at the mine.
It has long been recognized that violations of an approved plan are equivalent to
violations of section 75.220(a).
3

Section 104(d)(2) states in part:

If a withdrawal order with respect to any area in a
. . . mine has been issued pursuant to . . . [section
104(d)(1) of the Act] a withdrawal order shall promptly be
issued by an . . . [inspector] who finds upon any
subsequent inspection the existence in such mine
of violations similar to those that resulted in the
issuance of the withdrawal order under paragraph
(1) until such time as an inspection of such mine
discloses no similar violations.
30 U.S.C. §814(d)(2).
4

Section 104(a) states in part:

If, upon inspection . . . [an inspector] believes that
an operator of a coal . . . mine . . . has violated . . .
any mandatory . . . safety standard[,] . . . he shall,
with reasonable promptness, issue a citation to the
operator.
30 U.S.C. §814(a).

36 FMSHRC Page 616

In answering the Secretary’s petition, Consol denied that it violated the standards and
challenged the inspector’s S&S, unwarrantable and negligence findings. After the answer was
received, the case was assigned to the Court, which ordered the parties to consult to determine if
they could resolve their differences. When it became clear that they could not, a trial on the
merits was scheduled.
At the hearing numerous stipulations were read into the record by the Secretary’s
counsel. Tr. 14-17. A written copy of the stipulations was also entered into evidence as a joint
exhibit. Tr. 14-17; Jnt. Exh. 1.
STIPULATIONS
1. At all relevant times . . . (“Consol”) was the “operator” of
the . . . Blacksville No. 2 Mine[,] . . . within the meaning of
the . . . [Mine Act,] specifically Section 3(d), 30 U.S.C. Section
802(d).
2. At all relevant times, [the mine] was a “coal or other mine”
within the meaning of the Mine Act, specifically Section 3(h)), 30
U.S.C. Section 802(h).
3. At all relevant times, the products of . . . [the mine] entered
commerce, or the operations or products of [the mine] affected
commerce within the meaning of the Mine Act, specifically
Sections 3(b) and 4 of the Mine Act. 30 U.S.C. Sections 802(b)
and 803.
4. Consol is subject to the jurisdiction of the Mine Act.
5. This proceeding is subject to the jurisdiction of the Federal
Mine Safety and Health Review Commission [(the
“Commission”)] and its designated Administrative Law Judge
pursuant to Sections 104, 105, 110 and 113 of the Mine Act.
6. The citations and order contained in Exhibit “A” attached
to the Secretary’s Petition are authentic copies of the citations
and order at issue in this proceeding.
7. The citations and order at issue, as well as any modifications
thereto, were properly served by a duly authorized representative
of the Secretary of Labor . . . upon an agent [of Consol] at the [mine]
on the dates and [at the places] stated therein.
8. Consol demonstrated good faith in abatement of the alleged
violations.

36 FMSHRC Page 617

9. The Assessed Violation History Reports are authentic, and
accurately reflect the history of violations at [the mine] during the
time period that Consol operated . . . [the mine.]
10. Payment of the total proposed civil penalty in this matter will
not affect Consol’s ability to remain in business.
11. The parties stipulate to the authenticity of the exhibits referenced
in the parties[’] Prehearing Statements (with all amendments thereto)
but not to the relevancy or the truth of the matters asserted therein.
The following [proposed] exhibits are exempted from this stipulation:
a. Exhibits 29, 31, 41, 42, 70 and 73 of [the Secretary’s]
Prehearing Statement, and Second Amended Prehearing
Statement; and
b. Exhibit 1 of Respondent’s First Amended Prehearing
Statement.
12. Any formal . . . [MSHA] computer printout from MSHA’s
Mine Data Retrieval System is an authentic copy and may be
admitted as a business record of . . . [MSHA.]
13. With respect to Citation No. 8025562, a solid side rib of 45
block, #3 entry of the 17 W section, MMU 068-0, was not rib
bolted or flagged for a measured distance of 19 feet.
14. With respect to Citation No. 8025562, a violation of section
75.220(a)(1) occurred.
15. With respect to Citation No. 8025562, the citation was properly
designated as “Unlikely.”
16. With respect to Citation No. 8025562, the citation was properly
designated as “Lost Workdays or Restricted Duty.”
17. With respect to Citation No. 8025562, the citation was properly
designated as “1 Person Affected.”
18. The cited area referenced in Citation No. 8025562 was mined
on July 16, 2010.
19. With respect to Citation No. 8025516, two sections of rib
approximately 17 feet long and 15 feet long were not bolted nor

36 FMSHRC Page 618

flagged on the left inby and outby corners of the #2 entry, 8 block
intersection on the 14 W, MMU 064-0.
20.
If Respondent violated 30 C.F.R. Section 75.220(a)(1), then . . .
Citation [No. 8025516] was properly designated as “Unlikely,”
“Lost Workdays or Restricted Duty and “1 Person Affected.”
Jnt. Exh. 1; see Tr. 14-17.
As explained by the Secretary’s counsel, it is the Secretary’s belief that all three of the
alleged violations resulted from Consol’s “continued failure to take the basic steps necessary to
protect . . . [miners] from the hazards of ribs.” Tr. 19. Coal extracted at the mine is from the
Pittsburgh Coal Seam, and the company knew that the coal was soft and prone to slough.5 In
addition, two miners had been injured by rib falls, one miner in February 2010 and another in
May 2010. Further, before he found the conditions that led him to issue the order in question,
MSHA Inspector John Grimm lectured at the mine pursuant to MSHA’s Prevention of Roof and
Ribs Outreach Program (the “PROP Initiative”).6
5

The word “slough” is used as a verb and as a noun. When used as a verb the word
means the process of rib rock flaking, crumbling and falling away from a rib. When used as a
noun the word and its synonym “sloughage” describe, “Fragmentary rock material that has
crumbled and fallen away from the side of a . . . mine working.” American Geological Institute,
Dictionary of Mining, Mineral, and Related Terms, second edition (1977) at 515 (“DMMRT”).
6

Inspector Grimm testified that the PROP Initiative was started in 1999 or 2000 and that
its purpose was to get the industry to “pay particular attention to the roof and ribs to reduce the
[accident] and fatality rate.” Tr. 126. According to Grimm, lectures given pursuant to the
Initiative are yearly events which usually take place during the early summer because that is
“when most of the roof and rib falls happen . . . due to humid weather.” Id. The Secretary
introduced a document announcing implementation of the PROP Initiative for the summer of
2010. Gov. Exh. 63. The document is dated June 2, 2010. It was made available to mine
operators and to the public on the Department of Labor’s website. Tr. 127. The document states
in part:
Statistics show that more accidents and injuries occur
during the summer months than at any other time of the
year. As temperatures rise, humidity and moisture
increase underground making it easier for a mine roof or
rib to . . . fall.
Gov’t Exh. G-63; Tr. 128.
Implementation of the 2010 initiative involved a series of summer safety talks to
heighten the awareness of management and of rank and file miners of the need to scale and
adequately support the ribs. Management and miners were reminded to stay clear of the ribs as
the miners worked and traveled in the mine. They were also instructed how to safely bring down
loose and unstable ribs. Tr. 128-129. Grimm testified that he gave talks covering these subjects
(continued...)
36 FMSHRC Page 619

MSHA also alerted Consol and all of its miners to the hazards of rib falls through
MSHA’s Rules to Live By Program.7 A primary goal of the Rules to Live By Program is to
make miners and operators aware of the importance of compliance with section 75.202(a) and
section 75.220(a). Tr. 20-22, 24.
Counsel for the Secretary acknowledged that Consol made some efforts toward
heightened compliance with the standards. For example, after the May 2010 rib fall accident the
mine’s roof and rib control plan was amended to require additional rib bolting. However,
according to counsel, the company exhibited a failure to follow the rib bolting part of its
approved roof control plan. Tr. 20. In the Secretary’s view, the PROP Initiative and the Rules to
Live By Program should have caused Consol to be more diligent in preventing or correcting the
type of conditions that led to the alleged violations. Tr. 21-22, 25-26, 28. The Secretary’s
counsel stated that MSHA therefore believed it was important to assess enhanced penalties to
spur compliance with sections 75.202(a) and 75.220 (a)(1), which are among the “top five” most
cited safety standards in the nation’s underground coal mines. Tr. 30.

6

(...continued)
at the mine. Tr. 130. He specifically recalled giving such a talk to approximately 305 miners on
June 2, 2010. Mine management officials were present. Tr. 137-139 141-142; See Tr. 445.
Three days later he gave the same talk to approximately 80 miners Tr. 139-140. He gave
additional talks on June 7, June 8, June 9, June 14, June 15 and June 21. Tr. 141; Gov’t Exh. 54.
Between June 2, 2010, and July 2, 2010, Grimm estimated that out of a total of 27 PROP
Initiative talks given at the mine, he delivered approximately 15. Tr. 242.
When William Devault, a counsel safety supervisor, was asked about the company’s
response to the PROP Initiative talks, DeVault responded that during daily meetings with
employees on the working sections, company managers talked about roof and rib control “as part
of the law.” Tr. 446. He also stated that the company had and continues to have, a program of
instruction, the Safe Work Instruction (“SWI”) program, covering the roof and rib control.
DeVault did not provide details of the program. Tr. 447-448.
7

Inspector Grimm testified that in late 2009 or early 2010, MSHA’s Administrator
identified standards whose disregard was most likely to contribute to a fatal accident. Tr. 122.
Because roof and rib falls are a leading cause of injury and death in the nation’s mines, the
Administrator believed that all in the industry should be alert to the need to comply with the
Secretary’s mandatory roof and rib control standards. Id. The Administrator’s Rules To Live By
Program highlighting the need for roof and rib control was launched in February 2010. The first
phase of the program emphasized education and outreach. After about a month of the first
phase, MSHA launched the second phase, which included enhanced enforcement of the roof and
rib control standards. According to Grimm, among other things, enhanced enforcement meant
that when a violation of a Rules To Live By standard was found, the agency looked more closely
at the operator’s negligence. Tr. 124.

36 FMSHRC Page 620

INSPECTOR GRIMM AND THE BLACKSVILLE NO. 2 MINE
Inspector Grimm began working in underground coal mining in 1976. He became a shift
foreman in 1992. Grimm retired from mining in 2002, but in 2005 he was rehired and spent
approximately 13 months as a section foreman at Consol’s No. 84 Mine. Like the Blacksville
No. 2 Mine, the No. 84 Mine extracts coal from the Pittsburgh Seam. Tr. 37. In fact, Grimm
testified that all of his private underground mining experience took place in Pittsburgh Seam
mines. Tr. 39.
Grimm joined MSHA in October 2006. He became an authorized mine inspector in July
or August 2007. Tr. 39. In May 2011 he was promoted to an MSHA supervisory position. Tr.
41. At times, Grimm supervised up to 9 inspectors. Id. In addition to assuming supervisory
duties, Grimm continued to inspect mines. Grimm estimated that approximately 90% of his
inspections were in Pittsburgh Seam mines. Tr. 41. Grimm testified that he has been to the
Blacksville No. 2 Mine a “[c]ouple hundred” times and that he is very “familiar with the rib and
the roof ” at the mine. Tr. 42.
Grimm explained that at the Blacksville No. 2 Mine coal is extracted on both longwall
and conventional mining sections. Tr. 43. The average height of the mine’s entries is seven to
eight feet. Id. Grimm stated that the depth of the mine’s overburden is significant in that the
overburden impacts the size of the pillars that left are after the entries are driven. The
overburden helps to dictate the type of roof support used at the mine. Id. In addition, according
to Grimm, pressure from the overburden can cause the mine’s ribs to deteriorate and slough.
Grimm explained that “the more overburden, the more pressure on the coal seams” which in turn
causes the ribs to “eat out [and] deteriorate.”8 Tr. 44.
Grimm identified an agency Program Information Bulletin (“PIB”) entitled “Protecting
Miners from Hazards Related to Roof Falls.” Govt. Exh. 62; Tr. 48. The PIB, which was issued
after the order and citations in question, contains information about rib fall hazards including the
agency’s determination that 96 percent of rib fall fatalities occur where the floor to ceiling height
is at least seven feet. Tr. 48; Gov’t Exh. 62-at 1-2. The PIB further states that at least 78 percent
of rib fall fatalities occur where the overburden is at least 700 feet. Id. Grimm noted that at the
Blacksville No. 2 Mine, the seam height averages between 7 feet and 8 feet, and the overburden
varies from 800 feet to 1,400 feet.9 Tr. 40
8

Counsel Foreman Kenneth Weiss essentially agreed with Grimm. Weiss explained that
after the coal is removed at the mine, it is not long before the ribs start to slough. In Weiss’s
opinion, the cause of the sloughage is pressure from “the weight [that] is slowly coming
down . . . onto the rib[s].” Tr. 553. In Weiss’s view, the ribs need to be supported because they
“can’t take that kind of pressure.” Id.
9

Grimm maintained that in the area where the subject order was issued the overburden
was “close to 1,300 feet” (Tr. 50) and the entry height (also referred to as the seam
height) averaged from 6 feet 8 inches to 7 feet. Tr. 49, see also Tr. 679. Consol did not dispute
(continued...)

36 FMSHRC Page 621

Grimm believed, and Consol did not dispute, that because the coal in the Pittsburgh Seam
is soft, ribs in the mine are prone to sloughing. Tr. 53; see also Tr. 680. Grimm testified that the
rate at which the ribs deteriorate is unpredictable. They can deteriorate “right away,” or they can
stand for some time before they begin to slough. Tr. 54. Grimm stated, “[Y]ou [can’t] really
predict when [a rib will] fall.” Id. Grimm noted that to protect miners assigned to bolt the ribs
(the “rib bolters”), Consol installed “rib protectors” on its continuous mining machines
(“continuous miners”). Tr. 55. The protectors are three fourths of an inch thick pieces of metal
that are attached to hydraulic jacks. The metal plates are positioned against the ribs to shield the
rib bolters from rib falls. Tr. 55-56.
THE JUNE 22, 2010, INSPECTION
On June 22, 2010, Grimm went to the mine. He arrived around 7:15 a.m.. Before
proceeding underground he reviewed the pre-shift/on-shift examination book for the area he was
going to inspect. Tr. 58, 169. He then went underground accompanied by the miners’
representative, Keith Craig10, and the company’s representative, James Wolfe.11 Tr. 59. Later in
the inspection Weiss, the shift foreman, also joined the inspection. Tr. 355-356.
Grimm, Craig and Wolfe headed for the Six North Parallel construction area of the mine.
Tr. 169. Weiss explained that in this part of the mine, the company was sealing off certain
previously mined areas. Tr. 535. The project started in March 2010. Id. As Weiss recalled, two
to five miners a shift worked on the project. Id.
Upon entering the construction area, Grimm observed what he described as a
“convergence problem.” Geologic pressures were forcing the mine roof down and the mine
floor up. As a result, there was a “deterioration of the top and the ribs.” Tr. 215. Grimm
believed that “the entire area . . . was becoming unsafe to travel.” Id.; Tr. 215. Grimm
9

(...continued)
the accuracy of Grimm’s testimony regarding the entry height, but De Vault testified that the
overburden in the cited area was 870 feet, not 1,300 feet. Tr. 487. The Court observes that
under either scenario the overburden was above 700 feet.
10

Keith Craig, a general inside laborer, has worked at the mine since February 2006. Tr.
350, 352. Craig estimated the June 22 inspection was the second or third inspection in which he
acted as the union’s “walkaround” and the first or second time he accompanied Grimm. Tr. 353354.
11

James Wolfe has worked for Consol for 12 years, always at the Blacksville No. 2
Mine. Prior to working for Consol, Wolfe had 26 years of experience working for other coal
mining companies. Tr. 595-596. He holds mine foreman papers from Maryland and West
Virginia. Tr. 596. At the time he testified, Wolfe worked as the mine’s safety mentor, a job that
requires him to “go around and watch the men work [and] correct them for anything that they
may be doing wrong or that possibility of them getting hurt[.]” Tr. 597. However, on June 22,
2010, his job was that of safety escort, which meant that he accompanied MSHA’s inspectors on
a daily basis and represented the company to the inspectors. Tr. 597.
36 FMSHRC Page 622

understood that sealing off some of the area would alleviate the problem because miners no
longer would need to travel through the area. Tr. 215. While sealing some of the area was good
mining practice, Weiss testified that because the project was complex, “a lot of people were a
little bit queasy about [it].” Tr. 558.
Prior to reaching the area where the sealing was taking place, the inspection party
traveled to the area’s dinner hole. The hole served as an entrance to the construction area.12 Tr.
169. The dinner hole had been mined several years before the inspection (Tr. 215), and Weiss
explained that when the company decided to seal the previously mined areas, the dinner hole and
parts of the construction area were rehabilitated so they could be used during the project.
Rehabilitation included scooping up debris and spot bolting the roof.13 Tr. 540.
Grimm was not the first MSHA inspector to visit the area. Weiss testified that on May 4,
2010, approximately seven weeks before Grimm’s inspection, MSHA Inspector Jan Lyall
conducted an inspection that included the area adjacent to the entrance to the dinner hole.
Robert Tozzi, then a safety escort at the mine, accompanied Lyall to the area.14 Tr. 650.
According to Trozzi, Lyall did not issue any citations based on the condition of the roof and ribs
in the vicinity of the dinner hole, rather he suggested that posts be installed next to the cribs that
were already in place at the corners of the dinner hole entry. Tr. 653. Trozzi admitted, however,
that on May 4, neither he nor Lyall entered the dinner hole. Tr. 671. Indeed, Tozzi could not say
for sure whether Lyall even looked into the dinner hole. Tr. 671-673.
In contrast, on June 22, Grimm and the rest of the inspection party went into the dinner
hole, which Grimm described as a “gathering place for the miners.” Tr. 66. He understood that
miners used the area to eat lunch and to conduct meetings. Id., Tr. 173. There was a picnic table
in the center of the entry. In addition, mining supplies were stored in the entry.15 Tr. 66.
12

Grimm circled in black the Sixth North Parallel construction area on a mine map. See
Gov’t Exh. 18. The dinner hole was within the area. Id. Grimm stated that June 22 was the first
time he had been to the dinner hole. Indeed, it was the first time he was anywhere in the Six
North Parallel construction area. Tr. 68
13

The roof was originally supported with straps and cable roof bolts. When the area was
rehabilitated, one-hole boards and more roof bolts were added. Tr. 542, Tr. 200.
14

At the time he testified, Robert Trozzi, who holds a business degree from Washington
and Jefferson College, had worked for Consol for seven years as a safety escort and as a section
foreman. Tr. 649-650. On May 4, 2010, Trozzi was a safety escort at the Blacksville No. 2
Mine. He also was “responsible for conferencing violations, [for] respirable dust [sampling,
for] training employees, [and for] just making sure that [there] were safe work practices going on
within the coal mine.” Tr. 650-651.
15

Weiss testified that the supplies were located “just beyond the picnic table . . . at the
bottom of the rib on either side.” Tr. 554. The supplies consisted , inter alia, of “wedges, boxes
of glue . . . [one-hole] boards.” Id. In notes he made on the day of the inspection, Wolfe wrote
(continued...)

36 FMSHRC Page 623

The condition of the ribs on both sides of the dinner hole troubled Grimm. He believed
that the ribs had “deteriorated” badly. Tr. 68. He described each rib as “ate out in the middle and
sloughed off, leaving an overhanging brow.”16 Tr. 68-69; see also Tr. 373. In Grimm’s opinion,
the ribs were loose and dangerously defective. Id., 747. Grimm noted that although the usual
width of mine’s entries is 16 feet, in the dinner hole the entry was 22 feet wide. Because of the
added width Grimm thought that “a lot more” pressure was being put on the ribs, causing them
to “deteriorate further.” Tr. 213. They were, he testified, very likely to fall. Tr. 93.
Grimm maintained that miners traveled and worked “in close proximity” to the
hazardous ribs (Tr. 747), and shift foreman Weiss did not dispute Grimm’s assessment. Weiss
recalled that some of the supplies were “sitting . . . on top of the [sloughage]” (Tr. 555), and
Wolfe remembered that other supplies were lying “at the sloughage area,” close to the ribs. Tr.
633. Wolfe agreed that miners retrieving supplies could be close to the sloughed ribs. Id.
Grimm measured the defective ribs. One side had deteriorated for a length of 29 feet and
the other for 31 feet. Tr. 69. The 29 feet long section of rib was undercut17 to a depth of 18
inches, and from the roof to the start of the undercut was a hanging rib (a brow) that measured
15 inches to 27 inches high.18 Id. On the other side, the rib was similarly undercut creating a
similar brow.19 Tr. 70. Grimm stated that because the ribs were defective along “practically the
entire area of the dinner hole,” the condition was “very obvious.” Tr. 100.
15

(...continued)
that the supplies included a “mud tub, a pallet, a stack of one hole boards and 5 or 6 short
straps.” Tr. 632; Consol. Exh. R-10. In addition, there were “[two] separate pieces of curtain
laid out along the ribs.” Tr. 632,
16
Grimm described a brow as:
[O]verhanging material along the rib. [I]t’s been undercut
underneath. The middle of the rib . . . [has] been eaten
away, sloughed off, . . . and left with . . . material still
hanging. [There is n]othing to support [the overhanging
material.]
Tr. 71.
Grimm used the word “undercut” to describe the indentation in the rib line.
Although strictly speaking the word connotes an indentation that is “cut” mechanically, the
parties and the Court understood Grimm to be referring to an indentation caused by sloughing.
17

18

Grimm described the undercut rib as “ate out in the middle and left [with] the
overhanging material. There was nothing underneath [the overhanging material.]” Tr. 70
19

Grimm, with Craig’s assistance, measured the deepest penetration of the undercuts and
the distance from the ceiling to the point in the rib where the undercut started. Tr. 79-80, 81-82,
359. Grimm used a steel tape measure. Tr. 82. Grimm stated that he stood three or four feet
from the brows and under the roof bolts closest to the ribs when he took the measurements. He
added that in so doing, he made certain he was always under supported roof. Tr. 186-187.

36 FMSHRC Page 624

According to Grimm, the sloughage was lying at the base of the ribs. Tr. 71. Like the
Pittsburgh Seam in general, Grimm remembered the ribs in the dinner hole as “soft.” Tr. 71. He
also remembed “some cracks in [the ribs].” Tr. 71. Although the cracks were small, they
indicated to Grimm that the ribs were not solid and that they would “continue to deteriorate.” Tr.
76, see also Tr. 166. Equally troublesome, sloughing of the middle part of the ribs meant that
there was nothing left to support the “unsloughed” top of the ribs– the brows.20 Id.
While Craig agreed with Grimm’s description of both ribs. (Tr. 357), Grimm’s view of
the hazardous nature of the ribs was not shared by the company safety escort, James Wolfe.
Wolfe described the dinner hole as “just a typical area.” Tr. 601. Wolfe recalled that the roof in
the dinner hole was bolted and strapped and that additional bolts had been placed between the
straps and each rib. In addition, there were several one-hole boards that were located between
the straps and next to the top of each rib. Tr. 601-602, 610. The purpose of the one-hole boards
was to provide “extra support.” Tr. 602, 610. He described the ribs as “sloughed out from the
coal seam a little bit on each side and [there] was sloughage on the bottom,” but he did not
believe there was anything unusual about the condition of the ribs.21 Tr. 602.
Wolfe kept handwritten notes of what he observed during the inspection. Tr. 603-605.
Later in the day, he typed more detailed notes. Although one such note stated, “The ribs are
sloughed out . . . on both sides . . . in the middle of the rib[s]” (Resp. Ex. R-10), Wolfe did not
believe the sloughing ribs posed a hazard because the ribs almost always slough, usually at a
slow rate. Tr. 604-605. However, he acknowledged that sloughage can happen quickly (Id.) and
that after a rib sloughs from the middle, the top of the rib is no longer supported by the coal that
was in the middle of the rib. Tr. 618.
Wolfe measured the sloughed ribs, but whereas Grimm measured from the deepest points
in the sloughed out ribs to determine how much the ribs had been undercut, Wolfe measured
20

Grimm did not test the ribs by “sounding” them. (When a rib is “sounded,” it is hit
with a metal object, often a pry bar or a hammer. A resulting “hollow” sound may indicate that
the rib is unstable and loose.) Grimm explained, “I don’t sound the ribs when [the ribs are] bad”
and the ribs in the dinner hole were “visually bad.” Tr. 167.
21

In general, Wolfe and Trozzi viewed the ribs in the Pittsburgh Seam as far less
hazardous than did MSHA’s witnesses. While Trozzi agreed that a sloughed rib could present a
danger, he added that it “would depend on how [the rib] sloughs out.” Tr. 675. Asked to
elucidate, he added that in the Pittsburgh Seam and at the Blacksville No. 2 Mine:
Typically . . . the way the ribs slough out, they sort of slough
out in an arc to where there’s not really an overhanging piece
of coal. It’s just kind of a gradual arc that comes down. . . .
There’s no real brow that would be . . . a loose piece that’s
hanging or unsupported.
Tr. 675.

36 FMSHRC Page 625

from the rib lines because “[T]hat’s where the coal rib was.” Tr. 606. Wolfe stated that he told
Grimm that he, Wolfe, disagreed with measuring from the inside of the sloughed area when the
original rib still existed at both the top and the bottom of the rib line. Tr. 608. Wolfe drew the
original rib line on a photograph of the dinner hole area. Resp. Exh. R-1 at 4; Tr. 624-625. In
Wolfe’s view, a potentially dangerous “brow” could be created only if the bottom of the rib also
sloughed leaving nothing between the top of the rib and the mine floor. Tr. 615. (“A coal brow
would exist if there was nothing under that brow.” Id. Wolfe added, “If you can set a post under
the brow, that’s a coal brow.” Tr. 616.) Wolfe did not think coal brows existed in the dinner
hole because there were remnants of the original ribs at the tops and bottoms of the rib lines. Id.
Counsel’s Safety Supervisor, William DeVault, acknowledged that he was not in the
dinner hole during the inspection.22 Rather, he visited the area approximately one week later. Tr.
406, 472. While he agreed ribs “tend to be unpredictable,” DeVault contended that he did not
see any coal brows. Tr. 406-407. He stated he thought that the ribs exhibited the result of
“normal spalding.” Tr. 473. DeVault described “normal spalding” as “just flakes of material that
had flaked off from the rib and hit the floor.” Id. DeVault did not know if the ribs were scaled23
as part of abating the alleged violation, but Weiss thought that the ribs were too crumbly to be
scaled. Tr. 565-566. He described them as “very soft . . . like graham cracker crust.” Tr. 566.
Wolfe, who was in the dinner hole when the alleged violation was abated, testified that no
scaling was done. Tr. 611-612. Rather, to abate the cited conditions the company chose to do
nothing to the brows. Tr. 217. It set 15 floor to roof posts and jacks, seven on one side of the
entry and eight on the other. Tr. 144; see also Tr. 361. All were set four to five feet apart, along
the original rib line. Id., see also Tr. 565, 583. In addition, mining supplies were removed from
the entry. Id., Tr. 209. Weiss stated the supplies had to be moved because they were lying at the
base of the rib line where the posts and jacks were set. Tr. 584. According to Grimm, the posts
and jacks, which were wedged at the top, supported the ribs well and prevented people from
going under the ribs. Tr. 145, 147. Grimm considered setting the posts and jacks and removing
the supplies to be “a very good solution.” Tr. 147. He did not know if the area continued to be
used as a dinner hole after the condition was abated, but in his opinion it could have been,
provided any supplies were stored at least 12 inches from the ribs so that miners would not have
to go between the posts, jacks and the ribs to retrieve the supplies. Tr. 216.
Shift foreman Kenneth Weiss, who arrived at the dinner hole about 10 minutes after
Grimm, testified that the ribs had “flaked off” or “sloughed off” in mostly softball size pieces
starting about 18 inches above the floor. Tr. 542-544. Weiss described the ribs as indented
“about two feet” and projecting toward the entry at their tops and bottoms. Tr. 543. In Weiss’s
opinion, the ribs “were in no threat or danger of falling.” Id. He maintained that there was
22

At the time he testified, William DeVault had worked at the mine for 37 years. Tr.
470. He started as a general laborer and advanced through the ranks to become a section
foreman and then, in 2008, a safety supervisor. Id. As a safety supervisor, he supervises a
department of six people, five of whom are safety escorts who accompany MSHA’s inspectors.
Tr. 471.
23

A rib is “scaled” when loose coal and/or rock is removed from the rib. See DMMRT at

482.

36 FMSHRC Page 626

“nothing out of the ordinary” about the ribs (Tr. 544), nor were there any brows. Tr. 551. Weiss
“couldn’t believe [Grimm] was going to write [a] violation.” Tr. 543.
However, Grimm believed that because of the sloughed-out ribs, the areas on top of the
ribs, which Grimm referred to as the “brows,” were inadequately supported on both sides of the
entry. Tr. 86-87. (“[O]nce [the rib] was eaten out, it was all unsupported material.” Tr. 87.)
Grimm explained that because the middle of the ribs had fallen out, the brows above the
indentation were “left loose” and that the “hanging material [(i.e. the brows)] . . . [was] going to
come down.” Tr. 95. He added that when a rib has “cracks and it’s soft . . . . it’s going to fall.
And that’s why we keep people out from underneath it.”24 Tr. 95. Geologic forces were causing
pressure to be applied to the roof, the floor and the ribs. Tr. 168. Because of the forces applied
to the ribs and because gravity was pulling on the brows, “There [was] nothing . . . to support
[the brows].” Tr. 207. Grimm acknowledged that there were several one-hole boards in the roof.
Tr. 88, 89. However, he did not think they supported the coal brows and ribs. Tr. 207-208.
Moreover, it was June and humidity in the mine was rising. Tr. 92. According to Grimm, when
humidity seeps into the roof and ribs, they “fail a lot quicker because of the moisture,” which is
why the number of roof and rib accidents “greatly increases” in the summer.25 Tr. 92. For all
these reasons, Grimm believed that the cited brows were “very likely” to fall. Tr. 94, see also Tr.
91.
Grimm found that the hazard caused by the violation was reasonably likely to result in a
serious or even a fatal injury or injuries. In his opinion, miners were likely to be struck on the
head or neck by falling pieces of the ribs. Tr. 93-94. Grimm explained, “[M]iners were spending
time in close proximity [to the ribs] and underneath those ribs. . . [M]ining supplies [were] there.
[Miners] were traveling there. They were spending a lot of time there. They were actually
storing the supplies underneath that unsupported area.”26 Tr. 91.
In Grimm’s opinion, the sloughed out ribs presented an obvious hazard. In addition, and
as previously noted, mining supplies were stored in the area – things such as canvas, mining
straps, a roll of flexible mesh, one-hole boards, caps and wedges, boxes of resin and pieces of
cardboard. Tr. 77-78. Grimm remembered a majority of the supplies lying “right up against the
rib, [lying] on the sloughage and underneath the coal brow[s].” Tr. 77-78, see also Tr. 171.
24

Grimm’s belief that the brows were loose was based solely on visual observation. As
previously stated, he considered it too dangerous to sound the ribs. Tr. 167.
25

Consol’s view of the effect of moisture on the ribs was decidedly less alarming.
DeVault agreed that moisture increased during the summer, but he believed the increased
moisture at most caused the ribs to “flake” or to shed coal in “little pops,” a process that could be
successfully countered by rockdusting, thereby sealing the ribs. Tr. 488, 505.
26

DeVault agreed that in general, “All coal brows left unattended could be hazardous if
not supported correctly.” Tr. 421. He also agreed that roof bolters, mechanics, shuttle car
operators and foremen regularly used the dinner hole at lunchtime, at the end of the shift and
sometimes for meetings,. He further agreed that the exposure of miners to the dinner hole was
“very high.” Tr. 424.

36 FMSHRC Page 627

Laborer Craig’s testimony regarding the supplies tended to corroborate Grimm’s. Craig recalled
that sloughage from the ribs resulted in “chunks of coal and stuff [lying] on the [roof] bolts and
[other supplies.]” Tr. 356. He remembered roof bolting supplies stored along the left rib of the
dinner hole and some mesh and cardboard stored along the right rib and at the corner of the
dinner hole entry. Tr. 358. In addition, he stated that some of the roof bolting supplies were
underneath the coal brows.27 Tr. 358.
The presence of cardboard pieces or pads on the floor of the dinner hole signaled to
Grimm that the miners were placing themselves in very hazardous positions by lying or sitting
on the cardboard. Grimm called the cardboard pads “beds.” Tr. 78. Although Grimm did not
see miners actually lying or sitting on the beds (no miners were in the dinner hole during
Grimm’s inspection), Grimm could tell that miners had rested on some of the pads because of
the imprint of their bodies on the cardboard.28 Tr. 78, 174. In addition, some of the cardboard
pieces had been used to form what Grimm described as “pads and seats and chairs.” Tr. 174.
Grimm testified that he saw approximately four “beds” and that they were “in close proximity”
to the coal brows or directly underneath them. Tr. 79. Weiss thought that whether the cardboard
“rest areas” were “beds” was “a subjective question,” but he was sure that “nobody on [Weiss’s]
shift laid down or sat down on anything that was called a bed or a cardboard box.” Tr. 555. He
noted that miners usually sat at the picnic table. Tr. 555.
Wolfe agreed with Grimm that the cardboard pads were present. Wolfe speculated that
although the cardboard might have served as seats for miners, the pads would not have been used
as beds because the company does not condone sleeping underground. Tr. 634. DeVault also
noted that it is against mine policy for miners to make beds and to place the beds against the ribs.
Tr. 426. He was sure that miners would not sleep on the cardboard because if they did and they
were discovered, the miners would be discharged. Tr. 486. Nor did DeVault think miners would
sit on the cardboard while they ate lunch. Like Weiss, DeVault noted the presence of the picnic
table in the entry. Tr. 487. Nonetheless, DeVault acknowledged that cardboard pads continued
to “pop up” in the mine, especially in break areas like the dinner hole. Tr. 426-427.
In Grimm’s view, the deterioration of the ribs should have been a visual “warning” to the
company that the ribs were dangerous (Tr. 94), and he found that the condition of the ribs in the
dinner hole was due to the company’s “high negligence.” Gov’t Exh. 13. The finding was based
on “a lot of facts.” Tr. 95. He especially noted that there had been two “very serious” rib fall
accidents at the mine prior to June 22, 2010. The accidents were within months of one another
27

Later, Craig testified that the mesh and cardboard pads were lying along both ribs
(Tr.360) and, while not as specific as Craig, Wolfe testified that cardboard pads were lying on
both sides of the entry. Tr. 633.
28

Grimm explained that he thought the ribs were so hazardous that if he had seen a
miner sitting on cardboad under a brow, he would have issued an imminent danger order under
section 107(a) of the Act. Tr. 174. Section 107(a) provides that an inspector, upon finding an
imminent danger, must issue an order requiring the operator to cause all persons to be withdrawn
from the area in which the imminent danger exists. 30 U.S.C. §817(a).

36 FMSHRC Page 628

and as of the date of the hearing, the miner hurt in the last such accident had not yet returned to
work. Tr. 95-96. Although none of the accidents produced a fatal injury (Tr. 201), Grimm
believed the very fact the accidents happened “alone should have put [Consol] on a high degree
of awareness.”29 Tr. 96. Grimm also believed the company should have been on heightened alert
because it had been reminded of summer rib hazards by MSHA’s PROP Initiative. Id. Further,
the dinner hole had to be examined daily by the pre-shift and on-shift examiner. Therefore, the
condition of the ribs should have been noted and corrected. Id. Grimm thought that the ribs had
been defective for at least a month (Tr. 97) and that there were “no . . . signs . . . [the company]
tried to take care of [the] condition.”30 Tr. 96., 98, 210. In his opinion nothing mitigated the
company’s disregard of its duty of care. Tr. 99. Despite two fairly recent rib fall accidents at the
mine, prior citations issued for loose ribs at the mine, the PROP Initiative and MSHA’s Rules
to Live By, the company still failed to take measures to prevent or correct the conditions.31 Tr.
99-100, 148. In Grimm’s view, the company clearly had a “problem” with compliance. Tr. 148

29

The first accident occurred on February 13, 2010. A stage loader operator, one Mr.
Wise, suffered multiple injuries, including a broken pelvis, when he was covered by a brow that
fell. Tr. 113-114, 117, 118. On May 7, 2010, another miner, one Mr. Shaffer, a roof bolter, was
injured when a rib fell on him without warning. Tr. 120. He suffered a broken collarbone and a
bruised rib. Id. Grimm described the ribs that fell as being “in good shape” and as “normal ribs
that were solid.” Tr. 115. Grimm testified that “They . . . gave no sign of falling.” Id.
30

Grimm claimed that a section foreman told him, “They had been in there for a month,”
which meant to Grimm that the dangerous ribs had existed for one month. Tr. 97; see also Tr.
177. Assuming the statement was made, the Court notes that the statement is ambiguous and
that Grimm’s interpretation is but one thing that the foreman might have meant.
31

Concerning the prior violations of section 75.202(a), Grimm testified that in the two
years before June 22, 2010, approximately 38 citations and orders were issued for violations of
the standard at the mine. Of these, approximately 12 were “rib-related.” Tr. 100. (In fact, there
appear to have been 13 that were “rib related.” Gov’t Exhs. 40-52; Tr. 107.) He acknowledged,
however, that only one of the prior “rib-related” violations, cited in a section 104(d)(2) order (30
U.S.C. §814(d)(2)) issued to the company on August 11, 2009, related to coal brows. Gov’t Exh.
48; Tr. 107-108. According to Grimm, the company was cited on August 11 because the
company allowed “quite extensive” parts of the ribs to deteriorate and fall leaving hanging coal
brows. Tr. 108. Grimm described the conditions cited on August 11, 2009, as “relatively the
same” as the conditions cited on June 22, 2010. Id.
On cross examination, Grimm acknowledged that section 75.202(a) is one of the most
frequently cited of the mandatory standards. Tr. 163. He further stated that it represented 2.8%
of the standards cited at the mine from June 22, 2008 to June 22, 2010. He agreed that
nationally, violations of section 75.202(a) represent 4.39% of all violations cited at mines. Tr.
165-166.

36 FMSHRC Page 629

THE MISSING PHOTOGRAPHS & THE TROZZI PHOTOGRAPHS
According to Grimm, during the inspection safety escort Wolfe took photographs of the
ribs, the brows and the mining supplies in the dinner hole. Tr. 149. The miners’ representative,
Keith Craig, who was present in the dinner hole, agreed that Wolfe “took a lot of pictures.” Tr.
362. Craig stated that it was the first and last time he saw a company representative photograph
underground cited conditions. Id. Grimm testified while he saw Wolfe use his camera, he never
saw the resulting photographs.32 Tr. 149. Nor did Craig. Tr. 362. At some point after the
photographs were taken, they were lost. Grimm did not know what happened to them.33
Trozzi testified that because Wolfe’s photographs were lost, he and Weiss went to the
dinner hole in December 2011 to take pictures of the cited conditions and to measure the ribs.
This was the first time Trozzi was in the dinner hole.34 Consol did not contact MSHA officials
or union personnel about Trozzi’s visit to the dinner hole so neither inspectors nor union
representatives accompanied Trozzi and Weiss. Tr. 683. Trozzi maintained that the conditions
he photographed on December 11, 2011, were “basically the same” as what he saw on May [5],
2010, when he was traveling underground with Lyall. Tr. 655-656. The only difference Trozzi
noticed was that “the ribs had sloughed off more” in December. Tr. 664. Trozzi was certain that
he did not see a brow either in May 2010 when he looked into the dinner hole, or in December
2011 when he actually entered the dinner hole. Id. Grimm, who was shown copies of Trozzi’s
photographs at the hearing, testified that they were not representative of what he saw almost one
year and six months earlier. Tr. 153. He stated that he was not even “positive that [the
photographs] were [of] the same area.” Id. They did not show either the mining supplies or the

32

In an affidavit, Trozzi stated that Wolfe’s photographs were stored on an SD card and
that the card was given to DeVault by Wolfe. According to Trozzi, the card was then stored in
DeVault’s desk. Tr. 463; Gov’t Exh. 66.
33

The missing photographs were a major source of contention before, at and after the
hearing. DeVault agreed that Wolfe gave him the SD card and that he put the card in his desk.
Tr. 463. But DeVault was adamant that he never saw what was on the card. He was not even
sure if he downloaded the photographs onto his computer, although he might have. Tr. 503. In
any event, the SD card disappeared from his desk. Tr. 463-464 DeVault speculated that
someone might have put the card back into a camera and deleted Wolfe’s photographs by
mistake. Tr. 463. In addition, and to complicate matters, he testified that in May 2011 his
computer was replaced. Tr. 478; see Gov’t Exh. 67. DeVault stated that although he hoped that
the hard drive was not “wiped out” when the computer was switched, “It could’ve happened.”
Tr. 501. Of the missing photograhs, DeVault stated, “They’re gone. I cannot find them. I
looked everywhere . . . [They] either got covered over, deleted or something, I do not know . . . I
don’t know how it happened. I don’t.” Tr. 465.
34

The testimony revealed that the exact date of Trozzi’s visit was December 11, 2011,
almost a year and a half after Grimm’s inspection. Tr. 666-667. December 11, 2011, also was
the day that Trozzi discovered the photographs taken by Wolfe were lost. Tr. 683.

36 FMSHRC Page 630

brows that were in the dinner hole on June 22, 2010. Nor did they show jacks and posts that
were set to abate the violation.35 Id.
THE MISSING NOTES
Like his photographs, the handwritten notes made by Wolfe during Grimm’s inspection
also went missing. Tr. 151-152, 460. When Consol decided to contest the order at issue, Wolfe
gave the notes to Trozzi. Tr. 641-642. The notes then disappeared. Trozzi did not know what
happened, but he speculated that they were lost during a subsequent office move. Tr. 688-689.
THE MISSING PRESHIFT AND ONSHIFT EXAMINATION RECORDS
Prior to the inspection Grimm checked the pre-shift on-shift examination records for June
22, 2010. Grimm also tried to check the pre-shift and on-shift records for June 4 through June
18, 2010, but neither he nor anyone from the company could find the records. Tr. 150-151.
MSHA requires an operator to retain pre-shift and on-shift records for one year, but Grimm
understood Consol’s policy was to retain such records for five years. Tr. 151; see also Tr. 466467 (DeVault’s similar testimony). DeVault stated that he did not know why the records were
missing. He explained that it was not just individual pages of reports that were missing, but
rather that an entire book of reports was missing, a book that included the reports Grimm wanted
to see. Tr. 483; see also Tr. 690. Of the missing reports, DeVault stated, “[W]e’ve looked.
We’ve looked everywhere.” Id.
DeVault observed that in the summer of 2011 the company contracted to have its safety
department moved to a new office. The pre-shift/on-shift books were among the items moved.
Tr. 484. Trozzi echoed DeVault. See Tr. 661. According to Trozzi, the missing reports
disappeared in the lead-up to the move. He stated, “We had college students pack those books
up. It’s hard to tell. I really don’t know [what happened].” Tr. 662. Weiss could not recall
another instance in which pre-shift and on-shift examination reports vanished. He described the
situation as, “[s]omewhat out of the ordinary.” Tr. 585.

35

The Court notes that Craig, who was in the dinner hole on June 22, 2010, also thought
that in some respects Trozzi’s pictures were not representative. Craig stated,“It’s obvious that
they had been in there [and] cleaned it all up. [T]hey scooped . . . the ribs or shoveled[.]. . . [a]nd
there wasn’t near [as many] . . . posts set in . . . [the photographs as] was put in there the day that
I was there.” Tr. 362. In fact, the Court finds that the conditions photographed and measured by
Trozzi in December 2011 have not been shown to be sufficiently similar to those that existed a
year and a half earlier that they can be relied upon. Accordingly, Trozzi’s photographs will not
be considered in deciding the issues regarding the contested order.

36 FMSHRC Page 631

ORDER NO.
8025378

DATE
6/22/2010

30 CFR
§75.202(a)

The order states:
The operator failed to support or otherwise control to
protect persons from hazards related to falls of the
roof and/or ribs in the 6/North Parallel construction
area of the 4-5 block #3 entry of the 5 West Mains.
When measured the right inby rib was sloughed out
creating a coal brow along the rib for a measured
distance of 29 feet ranging from 15 inches to 27
inches high and undercut for a depth of 18 inches to
36 inches deep. This condition exposes the mine roof
from the coal rib to the nearest permanent roof bolt of
79, 90, 77, 96, 75, 92, 77, 80, 70, and 64 inches
respectively. The left outby rib has sloughed out
creating a coal brow along the rib for a measured
distance of 31 feet ranging from 12 inches to 28 inches
high and undercut for a depth of 15 inches to 31 inches
deep. This condition exposes the mine roof from the
nearest permanent roof bolt of 86, 78, 76, 70, 67, 68,
65,72, 64, 71, and 61 inches respectively. This area is
being utilized by miners to store mining suppl[ies]
including approximately 70 roof straps, 20 roof bolts,
4 boxes of resin, a roll of rib mesh, hydraulic hoses
and wooden one hole boards. The mesh, roof bolts,
resin and a portion of the roof straps are stored in
close proximity [to] the unsupported ribs. The coal
ribs contain small cracks and are soft. Falls of the
roof and ribs are a leading cause of underground coal
mine injuries and fatalities. It is reasonably likely
that if normal mining were to continue and the
condition[s] were left unabated that a fall of the coal
rib would cause a miner to suffer fatal injuries. This
violation is obvious and located in an area traveled
by a certified examiner. This is an unwarrantable
failure to comply with a mandatory standard. This
standard has been cited 38 times in two years at this
mine.
Gov’t Exh. 13.

36 FMSHRC Page 632

THE VIOLATION
The record establishes that the violation existed as charged. While the order describes
the violative condition in terms of both rib and roof hazards in the dinner hole, the evidence
presented by the Secretary almost exclusively focused on the conditions of the ribs, and they
were indeed hazardous. The evidence fully supports the inspector’s conclusion that the operator
failed to support or otherwise control the cited ribs and in so doing, endangered miners who
worked or traveled in the dinner hole. There is really no credible evidence that counters
Grimm’s eyewitness evaluation of the condition of the ribs. He described the ribs as having
“deteriorated,” and he backed up the description by testifying to the measurements he made
during the inspection. His testimony establishes that the ribs on both sides of the dinner hole
were “undercut” by at least a foot and a half and that the deterioration of the ribs left
overhanging and inadequately supported brows 15 to 27 inches high. Tr. 69-70. Moreover, his
testimony that the ribs on both sides of the dinner hole exhibited small cracks was not countered
(Tr. 71), nor was his testimony that the ribs were composed of “soft” coal and therefore prone to
sloughing. Id. Further, and as Grimm persuasively pointed out, as time went on, the soft coal
ribs would continue to deteriorate leaving less and less to support the brows. Tr. 76.
Added to this is the fact that it was June and the humidity inside the mine was rising. Tr.
92. While the extent of deterioration of the ribs due to humidity was disputed by the parties,
everyone agreed that sloughing increased in the summer. Tr. 92-94, 488, 505. Further, Consol
did not challenge Grimm’s testimony that rib fall accidents “greatly increased” in the summer
because moisture from rising humidity seeps into the ribs. Tr. 92. The Court credits Grimm’s
testimony concerning the effect of humidity on the ribs and finds that in June and as mining
continued throughout the summer, the increased humidity made the cited ribs more likely to
fail.36
Consol’s eyewitnesses to the cited conditions agreed the ribs had sloughed. Indeed,
Wolfe agreed that the ribs sloughed essentially as described and measured by Grimm. Tr. 613,
620, 622. Tellingly, Wolfe did not measure how much the ribs were “undercut,” a critical
measurement when determining the hazard posed by the brows created by the sloughage. Tr.
606. Wolfe’s contention that a brow could only exist if the rib sloughed all the way to the floor
is not persuasive (Tr. 615) and his implication that an overhanging rib created by sloughage in
the middle of the rib is not hazardous because the sloughage has not continued to the bottom of
the rib defies common sense. While there would be nothing left to support an ovehanging rib if
the rib sloughed from the overhang to where the rib met the floor, there also could be an
inadequate amount of rib left to support an overhang if a rib sloughed only in the middle. As
Grimm sensibly testified, when a rib sloughs in the middle, there is less to support the brow. Tr.
76. In short, the evidence establishes that a hazardous overhanging brow can be created by
sloughage from the brow to the floor or by sloughage in the middle of the rib. The fact that in
this case the sloughage occurred in the middle of the ribs does not negate the hazard.
36

The Court observes that although DeVault testified that the effect of increased
moisture on the ribs could be counteracted successfully by rock dusting, the record contains no
evidence that rock dust applied to the cited ribs. Tr. 488, 505.

36 FMSHRC Page 633

Weiss agreed that the cited ribs had sloughed so that they were indented “about two feet.”
Tr. 543. Although he did not remember hazardous brows being created by the sloughage and
although he described the ribs as “nothing out of the ordinary” (Tr. 544), Weiss’s recollection of
what he saw and his assessment of the conditions as he remembered them are far outweighed by
Grimm’s contemporaneous measurements of the sloughed ribs, measurements which fully
support his contention that sloughage had created hazardous brows. Moreover, neither Wolfe
nor Weiss disagreed with Grimm that the coal ribs were soft and that the ribs exhibited small
cracks, two conditions that increased the hazards posed by the ribs.
By its terms, section 75.202(a) only can be violated if the cited conditions pose a fall
hazard to miners. Therefore, to establish a violation the Secretary must prove not only that
conditions at issue are hazardous, he also must prove that miners worked or traveled or rested in
the immediate vicinity of the cited conditions. The Secretary proved exactly that. The record
fully supports finding that a picnic table was present in the dinner hole, as were supplies and
cardboard pads. Together these things are indicative of the ongoing presence of miners in the
dinner hole. Moreover, Grimm’s testimony that at least some of the supplies were stored against
the ribs and on the sloughage (Tr. 77-78) was, like the rest of Grimm’s description of the cited
conditions, credible and worthy of belief. Craig recalled that in addition to being stored on the
sloughage, some sloughage had fallen on top of the supplies. Tr. 356. The reason the supplies
were stored in the dinner hole was because they were going to be used or moved. To use or
move the supplies, miners had to retrieve them by coming into close proximity with the
hazardous ribs. In addition, while there was much back and forth regarding whether miners used
the cardboard pads as “beds” upon which to sleep (see e.g., Tr. 426. 555, 634), whether or not
they did is irrelevant. What is certain from Grimm’s testimony is that the pads were used to sit
or lie upon. Grimm’s testimony that he could see the imprint of miners’ bodies on the cardboard
was not challeged. Tr. 78, 174. The cardboard pieces were located in such a way that miners
sitting or lying on them were endangered. Even Wolfe agreed that the pieces were located
toward the sides of the entry. Tr. 633. The record thus confirms that miners worked, traveled
and rested in the immediate vicinity of the cited ribs. Accordingly, the Court holds that the
Secretary established that the cited ribs were not “supported or otherwise controlled to protect
persons from hazards related to falls of the . . . ribs” and that Consol violated section 75.202(a)
as charged.
S&S AND GRAVITY
The Court also finds that the violation was S&S.37 Consol violated the safety standard
and the violation created the discrete safety hazard of a rib fall injury. The Secretary established
that it was reasonably likely the hazard contributed to would have resulted in an event in which
there was a reasonably serious injury. All of the elements for a rib fall were present. There were
37

The test for determining the S&S nature of a violation has been established, approved
by the Courts, and relied upon by inspectors, operators and the Commission for almost 30 years.
It need not be repeated here. Mathies Coal Co., 6 FMSHRC 3-4 (Jan. 1984); accord Buck Creek
Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Inc. v. Sec’y of Labor, 861 F.2d
99, 103 (5th Cir. 1988) (approving Mathies criteria).

36 FMSHRC Page 634

inadequately supported brows along both ribs, there were cracks in the ribs, the ribs were soft
and sloughing, and the geological forces putting pressure on the ribs were unremitting and would
not lessen with time. Moreover, it was summer, and the likelihood of rib failure was increased
due to the higher moisture content of the mine atmosphere. Further, as mining continued,
deterioration of the cited ribs would have continued as sloughing ate away at the ribs, reducing
support for the already precarious brows. Tr. 76, 91, 167, 205. The Court therefore concludes
that, assuming continued normal mining operations, it was reasonable likely the cited ribs would
fail and miners would have been seriously, perhaps fatally, injured, because, as found above,
miners worked, traveled and rested in the dinner hole in the immediate vicinity of the cited ribs.
The location of the stored supplies and of the cardboard pads meant that miners retrieving or
moving supplies and miners sitting or lying on the pads were subject to being hit by pieces of the
defective ribs and brows when the ribs failed and the brows fell, something that could happen at
any time. Tr. 91, 179, 210; see also Tr. 630-631. A miner hit by falling pieces of a brow, at a
minimum, was reasonably likely to suffer an injury of a reasonably serious nature. Indeed, as
the prior rib fall accidents at the mine showed, a struck miner might well be off work or on
restricted duty for months after such an accident. Tr. 449, 450-451. A fatality was also possible.
Finally, in view of the kind of injuries that were reasonably likely to happen if the hazard
occurred and in view of the fact that an accident also could prove fatal, the Court finds that in
addition to being S&S, the violation was very serious.
UNWARRANTABLE FAILURE AND NEGLIGENCE
The Court further finds that the violation was the result of Consol’s unwarrantable failure
to comply with section 75.202(a) and of its reckless disregard of the standard’s mandate. The
Commission has defined an unwarrantable failure as aggravated conduct constituting more than
ordinary negligence including conduct that demonstrates a “serious lack of reasonable care.”
Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). The Commission has stated that
whether a violation is an “unwarrantable failure” is a question to be evaluated based on the facts
and circumstances in each case, and in light of each of the following factors: 1) the length of
time that the violation has existed; 2) the extent of the violative condition; 3) whether the
operator was placed on notice that greater efforts were necessary for compliance; 4) the
operator’s efforts in abating the violative condition; 5) whether the violation was obvious or
posed a high degree of danger; and 6) the operator’s knowledge of the existence of the violation.
See Consolidation Coal Co., 22 FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346
(Dec. 2009).
Grimm’s finding that Consol unwarrantably failed to comply with section 75.202(a) was
based on several factors. The sloughage, the overhanging brows, and the rib cracks were visibly
obvious and should have been a “warning” to the company that the ribs were dangerous. Tr. 94.
Further, the condition of the ribs deteriorated over time and therefore their condition was
ongoing and not new. Tr. 97, 177. Moreover, the dinner hole had to be examined both before
and during a shift, and the examiner should have seen the conditions and reported them for
correction. Also, in Grimm’s opinion, the company was on notice that it needed to pay
particular attention to the condition of ribs in the mine due to the two fairly recent rib fall

36 FMSHRC Page 635

accidents, the PROP Initiative, MSHA’s Rules to Live By, and its history of prior citations at the
mine for defective ribs. Tr. 99-100, 148.
The Court concludes that Grimm’s reasoning was sound in the main. The defective
condition of the ribs was indeed front and center for any and all to see (obviousness of the
violation), and the evidence points to the fact that the ribs had been defective for some time
(length of time the violation existed).38 While the Court cannot find, as Grimm maintained, that
the defective conditions existed for at least a month, the evidence certainly supports the
conclusion that the ribs were defective at a time when the pre-shift and on-sift examiner should
have noted the conditions and reported them for correction. The Court credits Grimm’s
testimony that some of the supplies were resting on top of sloughage, which signaled to Grimm,
and which indicates to the Court, that the defective ribs were present when the supplies were
moved into the dinner hole. Tr. 97-98, 176. The Court also credits Craig’s testimony that there
was some sloughage on top of the supplies. Tr. 356. Thus, it is clear to the Court, as it was to
Grimm, that the hazard was ongoing. The dinner hole had to be preshift examined prior to that
work and it had to be on-shift examined when the work took place. There is no indication in the
record that the visually obvious conditions were noted by the examiners, reports that would have
given notice to Consol of the existence of the conditions.39 Further, as the Court has found
38

The Court recognizes that Trozzi vehemently disagreed with Grimm’s finding that the
alleged violation was due to the company’s unwarrantable failure. Trozzi stated:
[T]here was just no condition that was apparent
that would’ve been that obvious and extensive[,]
that would make someone . . . jump out and say,
gee, I need to do something about this. . . [I]t
was very , very typical of the rest of the area
as far as the rib sloughage and really, very
typical as to a large part of the mine.
Tr. 665-666.
Trozzi was not a dissembler, but the Court concludes that Trozzi’s belief that there was
nothing that would “jump out” at an observer, rather than indicate the lack of a hazard, suggests
that the condition of the ribs was so reflective of rib conditions in general in the construction
area that representatives of the company were inured to the hazards the ribs posed and could no
longer recognize a hazardous violation when one stared them in the face.
39

Of course, the missing examination book might (or might not) definitively answer
whether an examiner noted the defective ribs, and the Secretary argued repeatedly and at great
length that the Court should draw adverse inferences against Consol from the fact that the preshift and on-shift records (and Wolfe’s photographs and notes) went missing. The Secretary also
argued that if the Court declined to draw the inferences, the Court should nonetheless sanction
Consol by striking the testimony of Wolfe and Weiss concerning the appearance of the cited
(continued...)

36 FMSHRC Page 636

above, the violation was reasonably likely to cause a reasonably serious injury, even a fatality
(the high degree of danger posed by the violation). For these reasons the Court concludes
Grimm was correct when he found that Consol unwarrantably failed to comply with section
75.202(a).40 Neither Grimm nor the Court made findings regarding all of the factors set forth by
the Commission in Consol and IO, supra, but the Court does not read those cases as requiring
findings on all six factors to validate an unwarrantable failure finding.
Moreover, although Grimm initially found Consol to be highly negligent, on reflection he
concluded the company recklessly disregarded its duty to comply with the standard. Tr. 98. The
evidence supports Grimm’s latter conclusion. There is ample basis in the record to find that
Consol “exhibit[ed] the absence of the slightest degree of care.” Aracoma Coal Co., Inc. 32
FMSHRC 1639 (Dec. 2010). There is nothing indicating that the company made any meaningful
effort to prevent and/or correct the specific conditions Grimm found in the dinner hole. The very
fact that company management chose to make the area a dinner hole required the company to
meet a high standard of care. As Consol officials well knew, by so designating the area and by
placing a picnic table in the area they extended an open invitation to miners to gather and linger.
Moreover, by placing supplies adjacent to the ribs, the company required some who worked in
the area to do so in close proximity to the ribs. Management also knew, or should have known,
39

(...continued)
conditions on June 22. See Sec.’s Reply Br. 48 - 65. The Court declines to do either. Findings
can be made and conclusions can be drawn resolving all issues based on the record as it stands
without the inferences or sanctions argued for by the Secretary, and the Court is mindful that
above all, restraint and at least a token amount of humility are called for. The essence of
restraint is only to make findings and draw conclusions that are necessary to decide a case. The
essence of humility is to recognize that like a physician, whenever possible, the Court should,
“First, do no harm.” Drawing adverse inferences and imposing sanctions can be precarious and
potentially hurtful actions. They are especially worthy of caution when they involve
assumptions of illicit motivation, assumptions that, given the limits of human intuition and the
complexities of human causation, easily may be wrong but that once published never can be
fully recalled. And this is all the more true where, as here, the witnesses’ testimony regarding
the missing documents and photographs has the color of credibility.
40

In reaching this conclusion, the Court has not overlooked the fact the company’s
history of rib related violations prior to June 22 was a good one. In the two years prior to June
22, 2010, only 13 “rib-related”violations appear to have been issued at the mine and only one of
those was charged in a section 104(d) order and for a condition that was “relatively the same” as
that cited on June 22, 2010. Tr. 100. 107-108. The Court recognizes, as acknowledged by
Grimm, that of all violations occurring at the mine, the percentage of violations of section
75.202(a) was below the national average. Tr. 165-166. While commendable, this history does
not change the Court’s conclusion that the violation cited on June 22 was the result of the
company’s unwarrantable failure. A litany of prior violations of a standard at issue is but one
factor to be considered when determining unwarrantable failure. Black Beauty Coal Co. v.
FMSHRC, 703 F.3d 553, 561 (D.C. Cir. 2012); San Juan Coal Co., 29 FMSHRC 125. 131 (Mar.
2007). In addition, the particular history of violating a standard and the overall history of all
violations is, of course, fully taken into account when a penalty is assessed.

36 FMSHRC Page 637

that cardboard pads were located in the area, some very close to the ribs, and that the miners
were using them as places to sit and to lie. Further, as Grimm made clear, the company should
have recognized it had a problem with effective rib control. The soft nature of the coal, the
rising humidity in June, the two relatively recent fall-related accidents, the reminders of the need
for heightened awareness of rib conditions delivered by the government through the agency’s
PROP Initiative and its Rules to Live By messages should have raised Consol’s awareness and
prompted heightened compliance efforts. They did not. Although in the daily section safety
meetings referred to by DeVault, miners were presumably generally reminded about the need to
adequately support the roof and ribs of working sections and although the subject was part of the
company’s general program of instruction, the cited conditions belie the effectiveness of the
programs and there is no evidence that the company went beyond general reminders to heighten
the awareness of its miners and supervisors of the necessity of adequate rib control. Tr. 446-447.
The company also knew the area’s ribs sloughed and sloughage was an ongoing event. As the
Court found, the evidence supports the conclusion that the ribs were in violation of the standard
before Grimm’s inspection. The area was, or should have been, preshift and on shift examined
and the condition of the ribs should have been noted, reported and addressed These things did
not happen. In fact, with regard to correcting the condition of the ribs, nothing happened. The
only conclusion the Court can reach is that Consol exhibited a complete absence of care and
recklessly disregarded its duty to comply with the standard.
CITATION NO.
8025516

DATE
7/21/2010

30 CFR
§75.220(a)(1)

The citation states:
The operator failed to follow page 4a, paragraph 4, of the
mine[’s] approved roof control plan requiring [that] areas
where crosscuts will be turned will be identified with flagging
to warn workers of rib areas not rib bolted on initial mining.
The left inby and outby corners of the #2 entry, 8 block
intersection on the 14 W longwall set up section, MMU 064-0,
which were previously mined are not flagged to warn miners
of unbolted mine ribs.
This standard has been cited 30 times in two years at this mine.
Gov’t Exh. 23.
Inspector Grimm issued Citation No. 8025516 on July 21, 2010. Tr. 227-228. Gov. Exh.
23. On that date he was inspecting the No. 14W area of the mine, an area where the company
was “driving the back end of the bleeders . . . to set up [the] longwall.”41 Tr. 229. Grimm was
41

The word “bleeders” is used as shorthand for the term “bleeder entries,” which are
defined as:
(continued...)

36 FMSHRC Page 638

accompanied by the company’s representative, Stanley Apanawicz, and by the miners’
representative, Eric Greathouse. Id. In the No. 2 entry of Eight Block, Grimm saw an
intersection where he believed the left inby corner and the left outby corner were not rib bolted
as required by the mine’s approved roof control plan. Id.; See Gov’t Exh. 27. Grimm noted that
on May 26, 2010, an addendum titled “Rib Bolting Plan for Continuous Miners” was added to
the plan. Paragraph 4 of the addendum states in pertinent part:
Areas where crosscuts will be turned will be identified with
flagging to warn workers of rib areas not rib bolted on initial
mining. Any area[s] not rib bolted on initial mining, such as
areas where crosscuts are mined through or where the distance
inby or outby are not within standard cycle of every other roof
strap will be bolted when the miner rib bolter or other
rib bolter can be utilized . . . .
Gov’t Exh. 20 at 4a; see Tr. 232-233.42
Grimm identified a map of the general area in which the alleged violation was cited.
Gov’t Exh. 27; Tr. 230. Grimm circled the area where he found the alleged violation. Id. He
explained that in the No. 2 Entry, “The left inby corner . . . [of the circled intersection] was not
completely rib bolted according to the rib bolting plan.” Tr. 231. When asked in what way the
rib bolting plan was violated, Grimm replied, “The inby and outby corners were not flagged or
rib bolted at that intersection.” Tr. 235. As he recalled, 15 feet of the left inby corner and 17 feet
of the left outby corner were not rib bolted or flagged. Id. Grimm depicted the area in his notes.
Gov’t Exh. 24 at 3 (page 8); Tr. 235-236. Grimm acknowledged the rib bolting plan stated that,
“Any area not bolted on initial mining . . . will be bolted when the [continuous ] miner rib bolter
. . . can be utilized.” Gov’t Exh. 20 at 4(a); Tr. 236. When asked how he knew that the
continuous miner rib bolter could have been utilized, Grimm responded, “Everything else on the
section had been rib bolted. Everything that was required to be rib bolted was rib bolted and
they were mining inby that point, and that area had been center bolted.” Tr. 236. He explained
that, “The area was mined with a full-face miner utilizing roof straps. And once they mine an

41

(...continued)
[P]anel entries driven on a perimeter of a block of
coal being mined and maintained as exhaust airways
to remove methane promptly from the working [face]
to prevent the build up of high concentrations either
at the face or in the main intake airways. They are
maintained, after mining is completed, in preference
to sealing the completed workings.
DMMRT at 55.
42

Grimm speculated that Consol added the addendum because of the two prior rib fall
accidents noted above. Tr. 291.

36 FMSHRC Page 639

area and leave that entry or that cycle, they have 72 production hours to rib bolt.”43 Tr. 237. He
added that the section foreman told him the area had been mined approximately two weeks
before Grimm’s visit. Tr. 236-237; see Gov’t Exh. 24 at 3 (page 9). The fact that the No. 2 Entry
had been center bolted meant to Grimm that, “The roof bolting machine traveled past the cited
area.” Tr. 238. The No. 1, No. 2, and No. 3 entries had been rib bolted in their entirety including
crosscuts, but in bolting the entries, the company simply missed the subject intersection. Tr. 239.
Grimm acknowledged that the rib bolting plan specifically excluded some areas from its
requirements, including “longwall setup entries.” Tr. 243; See also Tr. 262; Gov’t Exh. 20 at 4a.
He described the longwall setup entry as “the entry that is driven at the back of a panel in order
for . . . the operator to set up the longwall mining machine, the shearer, the shields, headgate
drive, tailgate drive. That’s where the initial mining starts to retreat out of that section.” Tr. 243.
He described the term “longwall setup entry” as a “common” term that is is used to describe one
entry of a longwall setup section. Tr. 244. Grimm identified an MSHA document entitled
Longwall Mining, which lists and defines many terms. Tr. 245; Gov’t Exh. 28. In the document,
the term “setup entry” is defined as an “[e]ntry developed for purpose of assembling the
longwall equipment. This setup entry will become the longwall face after equipment is
assembled and ready to operate.” Gov’t Exh. 28 at 11. He further identified a publication
authored by West Virginia University professors Syd S. Peng & H.S. Chaing entitled Longwall
Mining. Tr. 249; Gov’t Exh. 68. In describing longwall panel layouts, the professors state:
“Longwall mining begins at the setup room or entry, SR, where all of the face equipment is set
up.” Gov’t Exh. 68 at 12-13; Tr. 253. Grimm maintained that the authors’ definition of a “set up
room” corresponds to his understanding of what constitutes a “setup entry.” Tr. 253.
With regard to Citation No. 8025516, Grimm pointed out that although the longwall
setup section included the No. 1, No. 2, No. 3 and No. 4 Entries of the area he cited (see Gov’t
Exh. 27), the plan does not exclude the entire setup section; rather it excludes the longwall setup
entry. Tr. 256. The longwall set up entry is excluded because after the entry is driven, it has to
be widened by about four feet in order to accommodate the shearer, the panline, the headgate
drive, the tailgate drive and the shields. Tr. 257. If the entry is rib bolted after it is driven, the
bolts have to be cut out when it is widened. Id. Referring to the map of the cited area (Gov’t
Exh. 27), Grimm maintained that Entry No. 4 was the longwall setup entry, not Entry No. 2. Id.
Therefore, Entry No. 2 and the cited intersection were not excluded from the requirements of the
addendum.

43

Grimm used the term “rib bolt” but stated that he had meant to say “center bolt.” In
other words, he meant to say that the company had “72 hours to install a center bolt, which they
do with a rib center bolting machine, which is capable of putting rib bolts in also.” Tr. 237. He
described a center bolting machine as “a roof bolting machine . . . capable of putting either bolts
in the mine roof or mine ribs.” Tr. 238. Grimm did not identify the basis for his belief that
Consol had 72 production hours to install the required bolts, but the Court assumed at the time
and continues to assume that Grimm was referring to a requirement of the mine’s approved roof
and rib bolting plan.

36 FMSHRC Page 640

Robert Trozzi disagreed. He maintained that the cited ribs were in a longwall setup entry
and that they did not need to be rib bolted. Tr. 707; Gov’t Exh. 20 at 4a. Trozzi acknowledged,
however, that if the exclusion for the longwall setup entry was not in the rib bolting plan, the
missing rib bolts at the intersection would constitute a violation of the plan. Tr. 708.
Because the ribs were in good condition, Grimm did not believe that the alleged violation
was S&S. Tr. 273. Nonetheless, in his opinion the condition had existed for at least two weeks
and the preshift examiners should have noticed and reported it. Tr. 274. Grimm found that the
alleged violation was the result of the company’s high negligence. When asked to explain why,
Grimm stated that he based his finding on:
[T]he fact that [MSHA inspectors] were continually issuing citations
on ribs, on the rib bolting plan, the accidents that were recent, the
length of time that [the cited condition] existed and the operator’s
failure to act and also it’s a Rules to Live By standard. . . . [Further,]
we were going over the PROP [I]nitiative at that time. All [these]
were pieces of the puzzle that just accumulated into . . . high
negligence.
Tr. 239-240.
Grimm recommended that the alleged violation be specially assessed because it was “one
of the Rules to Live By standards” and Consol had been “made aware of the Rules to Live By
campaign and the need for extra steps and vigilance . . . to provide for the safety of the miners.”
Tr. 277. When Grimm’s recommendation for a special assessment was reviewed by his
supervisor, the supervisor agreed. The supervisor believed that Consol demonstrated a “high
degree of negligence” based on “repetitive violations” of section 75.220(a)(1).44 Tr. 279, 281.
THE VIOLATION
Section 75.220(a) requires the operator of an underground coal mine to develop a roof
and rib control plan. The intent is to afford comprehensive protection against roof and rib
collapse, a leading cause of injuries and deaths in the nation’s underground coal mines. See
UMWA v. Dole, 870 F.2d 662, 669 (D.C. Cir. 1989)). The standard’s aim is to create a plan
through a collaborative approval and adoptive process with provisions understood by both the
Secretary and the operator. Moreover, “[A]fter a plan has been implemented ( . . . gone through
the adoption/approval process) it should not be presumed lightly that terms in the plan do not
have an agreed upon meaning.” Jim Walter Resources, Inc.. 9 FMSHRC 903, 907 (May 1987)
(quoting Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). In order to prove a
violation of a mine plan provision, the Secretary, “must first establish that the provision
allegedly violated is part of the approved and adopted plan. Jim Walter, 9 FMSHRC at 907 . . . .
44

Counsel for the Secretary advised the Court that if the alleged violation had not been
specially assessed, a penalty of $687 would have been proposed. The special assessment amount
was $1,900, almost three times as much. Tr. 280-281.

36 FMSHRC Page 641

[He] must then prove that the cited condition or practice violated the provision.” Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1280 (Dec. 1998).
Much testimony was offered regarding the alleged violation, a substantial amount of
which the Court found confusing and/or not on point. None the less, the issues are clear to the
Court. The citation states that Consol, “failed to follow . . . page 4a, paragraph 4, of the mine[s]
approved roof control plan requiring [that] areas where crosscuts will be turned will be identified
with flagging to warn workers of rib areas not rib bolted on initial mining.” Gov’t Exh. 23. As
previously noted, paragraph 4 of the mine’s “Rib Bolting Plan for Continuous Miners” was
approved by MSHA as an addendum to the mine’s roof control plan. Gov’t Exh. 20 at 4a; see Tr.
232-233. Once adopted by Consol and approved by the Secretary, the company was required to
comply with the addendum. The question is whether the Secretary proved the company violated
the plan as the Secretary charged.
To reiterate, Paragraph 4 states:
Area[s] where crosscuts will be turned will be identified with
flagging to warn workers of rib areas not rib bolted on initial
mining. Any area[s] not rib bolted on initial mining, such as
areas where cross cuts are mined through or [where] the distance
inby or outby are not within standard cycle of every other roof
strap will be bolted when the miner rib bolter or other rib bolter
can be utilized. ([A]s noted in #1 statement.)[.]
Gov’t Exh. 20 at 4a.
The citation alleges that, “The left inby and outby corners of the #2 entry, 8 block
intersection on the 14 W longwall set up section, . . . which were previously mined are not
flagged to warn miners of unbolted mine ribs.” Gov’t Exh. 23. The citation clearly and
specifically charges that the provision of the plan that Consol failed to follow is the first sentence
of paragraph 4: “Areas where crosscuts will be turned will be identified with flagging to warn
workers of rib areas not rib bolted on initial mining.” It is undisputed that there was no flagging
in the cited area. It also is undisputed that the left inby and outby corners of the No. 2 entry were
not rib bolted. The existence of the violation as described in the body of the citation thus turns
on whether or not the Secretary established the cited corners were in an area “where crosscuts
will be turned.” Id. He did not. The weight of the testimony is that in the cited area there was no
crosscut to be turned. A review of Grimm’s testimony fails to reveal one instance in which he
maintained there was such a crosscut. Nor did any other of the Secretary’s witnesses testify the
cited ribs were located “where [a crosscut] will be turned.” Gov’t Exh. 20 at 4a. But this does
not end the matter.
Although the body of the citation does not describe a violation of the second sentence of
paragraph 4, Grimm did through his testimony. He stated that among the reasons he issued the
citation was the fact that the inby and outby cited corners were not “rib bolted at [the subject]
intersection.” Tr. 235. In Grimm’s opinion, the company simply neglected to properly place the

36 FMSHRC Page 642

missing bolts when it initially bolted the ribs. Grimm recognized paragraph 4 did not specify a
specific time when the company had to come back and install the missing bolts, but Grimm
maintained that the condition existed for at least two weeks and during that time the company
could have come back and corrected its initial error. He noted that the company rib bolted all of
the other ribs required to be bolted on the section and that it was mining inby the cited corner.
Tr. 236, 239.
Consol did not object to Grimm’s testimonial expansion of the alleged violation, and far
from claiming it was prejudiced by the allegation, the company responded with its own
testimonial evidence. Nieman acknowledged the cited corners had to be rib bolted (Tr. 396) and
Trozzi esentially agreed. Tr. 708. Therefore, the Court concludes that although the issue of
whether Consol violated the second sentence of paragraph 4 was not charged in the body of the
citation, it was admitted as an issue during the trial, and it is before the Court.
The Court finds that Grimm was right when he maintained that during the time between
when the ribs were initially bolted and the citation was issued, the company should have
installed the missing bolts. Grimm persuasively testified that the center bolter passed the area
once and maybe twice. Tr. 303. The company could have and should have installed the missing
bolts using the center bolter. Tr. 303. Neiman agreed. Tr. 387. Once left unbolted, the
addendum required the cited ribs to be bolted within a reasonable time. By failing to bolt the
ribs when it had the opportunity to do so, Consol violated the second sentence of paragraph 4 of
the addendum and therefore violated section 75.220(a)(1).45
GRAVITY
Even though bolts were missing on both sides of the entry, the ribs in the cited area were
in good condition. Tr. 273. 333. Grimm did not think that the violation was serious (Gov’t Exh.
23), and the Court agrees. See also Jnt. Exh 1, Stip. 20.
NEGLIGENCE
Grimm found that the violation was due to Consol’s high negligence. Gov’t Exh. 23.
Grimm testified that he made the finding based on several factors. He stated that he considered
45

The Court rejects any suggestion that compliance with the rib bolting plan was not
required at the cited intersection because the No. 2 Entry was a “longwall setup entry” and
therefore was specifically excluded from the requirements of the addendum by paragraph 1.C.
(“The following areas are not included in this plan; longwall setup entries . . . unless conditions
warrant rib bolting at the time of initial mining.” Gov’t Exh. 20 at 4a.) The Court accepts
Grimm’s sensible explanation that a longwall setup entry is the entry in which the longwall
equipment is assembled (Tr. 256-257) and that such an entry is excluded because if it is required
to be rib bolted, the bolts subsequently have to be cut out. Tr. 257. In the situation at hand, while
the No. 2 Entry may have been part of the longwall setup section (i.e. the section on which the
longwall was assembled), it was not the entry in which the longwall was assembled, and ribs in
the No. 2 Entry were not excluded by the plan. See Tr. 256.

36 FMSHRC Page 643

the two prior rib fall accidents, the fact that the violation existed for up to two weeks, and the
fact that Consol knew MSHA was highlighting the need for enhanced rib control though its
Rules to Live By and PROP Initiative. Tr. 239-240. While Grimm was correct in considering
these factors, the Court finds that he also should have considered two significant mitigating
circumstances. First, the extent of the violation was very limited. It was restricted to the ribs at
the corners of one intersection in one entry. There were many other intersections and entries on
the section and all of them were properly bolted. Second, the cited ribs were in good condition.
Tr. 273-274. There was nothing about their condition to call out to a pre-shift and on-shift
examiner that they might harbor a violation. Tr. 274. Thus, while there is no doubt the missing
bolts should have been detected and installed, the conditions under which they were missing did
not make their lack especially noticeable to mine management personnel or management’s
agents who traveled and examined the area. In other words, the missing bolts were very easy to
miss. The Court concludes that Consol’s negligence was moderate.
CITATION NO.
8025562

DATE
7/26/2010

30 CFR
§75.220(a)(1)

The citation states:
The operator failed to follow page 4(a), of the mine[’]s
approved roof control plan requiring areas where
crosscuts will be turned [to] be identified with flagging
to warn workers of rib areas not rib bolted on initial
mining. The solid side rib of 45 block, #3 entry of
the 17 W section, MMU 068-0, is not rib bolted or
flagged for a measured distance of 19 feet. This
condition has been cited 3 times within 7 days at
this mine. Future violations of this condition may
be looked at with a higher degree of negligence.
This standard was cited 31 times in two years at this mine.
Gov’t Exh. 29.
Grimm testified that on July 26, 2010, he returned to the mine to survey the level of noise
on the 17W section. Tr. 294. When he went underground he was accompanied by the company
representative, Douglas Moyer, and the miners’ representative, Hugh Nieman.46 Id.
During the inspection Grimm issued Citation No. 8025562. Tr. 295; Gov’t Exh. 29. He
did so because he saw that a rib in the No. 3 entry on the 17W Section was not rib bolted for 19
46

Neiman started working at the mine in 1981. Tr. 379. He estimated that he had about
20 years of experience setting up longwalls. Tr. 383. Nieman also worked as a roof and rib
bolter, and at the time of the inspection, Neiman was working as a timberer building cribs and
carrying out other tasks involving roof support. TR. 380

36 FMSHRC Page 644

feet and the rib was not flagged. Tr. 295. Grimm described the cited area as a face area when it
was driven. Tr. 300. As such, the area could not be accessed by the rib bolting mechanism on
the continuous mining machine. Tr. 300-301. Therefore, after the continuous mining machine
“pull[ed] out” leaving the area unbolted, the area “need[ed] to be flagged and then it need[ed] to
be bolted with the center bolting machine.” Tr. 301. Grimm believed the operators of the center
rib bolting machine had “a couple of different opportunities to install . . . [bolts in the area] over
a . . . lengthy period of time” but failed to do so. Tr. 302; see also Tr. 303. In addition, Grimm
maintained that after mining progressed on the section, it became possible for the continuous
mining machine to return and rib bolt the area. Grimm contended the machine actually passed
the area once, but did not install the missing bolt. Tr. 304.
Grimm found that in failing to bolt the rib, the company exhibited “high” negligence.
Gov’t Exh. 29, Tr. 296-298. Although the rib was unbolted for only 19 feet, Grimm did not find
that the company’s negligence was mitigated. Tr. 296-298.
It’s not a large area. However . . . with the accidents, with
the PROP Initiative, with the safety talks, with the violations
and talking to the operator, doing everything that I could get
done, they were not taking it seriously.
Tr. 305-306.
Moyer, the company safety escort who traveled with Grimm, described the cited area as a
“solid wall . . . [that] looked like . . . [it] was missing rib bolts.” 47 Tr. 733. Nieman, the miners’
representative, also noted the missing bolt. There was, he stated, “an area of rib that wasn’t
supported for . . .I think . . . 19 feet, no flagging and it was just . . . a violation.” Tr. 386. see also
Tr. 738. Although the condition was abated by flagging, Moyer stated that “per the plan . . . we
probably should’ve abated it with a bolt.” Id. Moyer noted that flagging was not needed in the
area because, “It’s just a solid face.” Tr. 735.
Moyer did not recall speaking with Grimm about the plan’s rib bolting and flagging
requirements. Tr. 735-736. Nor did he know how long the rib bolt was missing. Tr. 737.
However, the parties stipulated the cited area was mined on July 16, 2010. Stip. 18. Grimm
noted the period of time that had passed since the entry was mined. Tr. 304-305. He testified
that if the mine had been working on its typical six days a week schedule, the cited area would
have been subject to approximately 18 pre-shift/on-shift examinations before Grimm’s
inspection. Tr. 305. Nieman believed the area was subject to even more scrutiny. He testified,
“[A] fire boss goes there every two hours, so . . . in 10 days, you had a qualified person walk by
there at least 100 times and no effort was made to either flag it or bolt it.”48 Tr. 386.
47

Moyer used the plural, “bolts,” but later confirmed that only one rib bolt was missing.

Tr. 734.
48

Robert Trozzi had another view. He testified that after the area was mined and before
the citation was issued, the area would have been subject to a total of approximately 30 pre-shift
(continued...)

36 FMSHRC Page 645

Grimm recommended that the alleged violation be specially assessed because he “could
not get it through to [Consol] how important it was that they comply with the rib control plan . . .
. It just was not happening. I had to continually use whatever tools I could to get them to come
into compliance. . . . I upped the negligence. I did as much as I could.” Tr. 315-316. He added,
“I had to do whatever I had to do to ensure the safety of the miners, and to pull out all of the
stops other than issuing each [alleged violation] as a [section 104] (d)(2) order and it was getting
close to having to do that.”49 Tr. 316. However, echoing Trozzi, Grimm agreed that although the
area in which the condition existed would have been preshift and onshift examined, the
examiners would have been looking for hazardous conditions and the cited condition was not
dangerous. Tr. 328. Nonetheless, the fact that the rib bolting plan recently was added to the roof
control plan meant to Grimm that the rib bolting plan “should have been fresh on everyone’s
[mind.]” Tr. 306. He added, “when something’s added to the roof control plan, prior to being
implemented, that part of the plan has to be gone over by everyone associated with either making
examinations or working with that plan, including . . . anybody installing the rib bolts[.]” Id.
THE VIOLATION
The parties stipulated that the violation of section 75.220(a)(1) occurred as charged. Stip.
14.
GRAVITY
Grimm found that the violation was not S&S and that it was unlikely that an accident
resulting in lost workdays or restricted duty would occur as a result of the missing bolt. Gov’t
Exh. 29. Grimm explained that it was not reasonably likely the rib would have deteriorated and
fallen because “at the time of the inspection the rib was solid. It did not show any deterioration.”

48

(...continued)
and on-shift examinations. Stip.18; see also Tr. 718, 720. Moreover, Trozzi observed that when
the citation was issued, pre-shift and on-shift examiners were required to look for “hazardous”
conditions, and he suggested a “non-S&S citation on a rib” would not be a hazard and therefore
might not be noted during an examination. Tr. 719.
49

Grimm’s testimony reflected a statement he wrote on MSHA’s Special Assessment
Review Form, to wit:
This violation is one of the rules to live by standards.
The operator has been made aware of the rules to live
by campaign and the need for heightened awareness
to comply on their behalf to provide for the safety of
the miners. This condition has been cited 3 times in
7 days at this mine and a conference was held with mine
management on 7-[22]-2010 concerning this practice.
Exh. R-19.

36 FMSHRC Page 646

Tr. 333. In fact, Grimm agreed that the cited condition was so devoid of danger that it was
“probably not a hazard.” Tr. 328. The Court finds that the violation was not serious.
NEGLIGENCE
Grimm’s finding that the violation was due to Consol’s high negligence cannot be
sustained. The Secretary defines “high negligence” as, “The operator knew or should have
known of the violative condition . . . and there are no mitigating circumstances.” 30 C.F.R. §
100.3. In the Court’s opinion the record establishes a “mitigating circumstance,” one that has
been recognized over and over. For example, the Commisison’s Chief Judge, Robert Lesnick,
has quoted two well known commentators as stating: “The amount of care demanded by the
standard of reasonable conduct must be in proportion to the apparent risk. As the danger
becomes greater the actor is required to exercise caution commensurate with it.” W. Page
Keeton, et al, Prosser and Keeton on the Law of Torts § 34 at 205 (5th ed. 1084) (quoted in PBS
Coals, Inc., 30 FMSHRC 1087, 1093 (Nov. 2008)). Here, where one rib bolt was missing in a
solid rib that showed no sign of deterioration (Tr. 333), the duty of care was lower than it would
have been had more bolts been missing and/or had the rib shown signs of failing. In the Court’s
view, the minimal gravity of the violation – and the Court again notes Grimm’s agreement that
the cited condition “[p]robably was not” a hazard (Tr. 328) – constituted a significant mitigating
circumstance that lessened Consol’s duty of care. Therefore, under the Secretary’s own
definition of “high” negligence, Consol’s failure to note and correct the single missing bolt did
not rise to that level. 30 C.F.R. § 100.3.
The Court finds that the company exhibited moderate negligence. In making this finding
the Court recognizes that the area in which the violation existed was visited by agents of the
operator on numerous occasions and that despite this, the missing bolt was not detected and
installed. The Court also recognizes that the company had been warned by the inspector that it
“didn’t have forever to bolt [the ribs] in . . . places” like the one cited. Tr. 315. Moreover, the
Court is cognizant of the fact that the violation was cited against a backdrop of two recent rib fall
accidents at the mine and heightened emphasis by MSHA on the need for compliance with the
dictates of the roof control plan as it related to the ribs. But even given these factors, the Court
cannot divorce its finding from the particular facts of the violation and when, as here, those facts
unquestionable establish that the violation was of a minimally hazardous nature, the Court
cannot conclude that Consol’s duty of care was unmitigated and high.
REMAINING CIVIL PENALTY CRITERIA
SIZE OF THE OPERATOR
Neither party disputes that Exhibit A of the Secretary’s Proposed Assessment form
indicates that the Blacksville No. 2 Mine is a large mine and Consol is a large operator. Gov’t
Exh. 3, Exh. A; see 30 C.F.R. §100.3((b).

36 FMSHRC Page 647

HISTORY OF PREVIOUS VIOLATIONS
Although the parties stipulate that the “Secretary’s Assessed Violation History Reports
are authentic, and accurately reflect the history of violations at [the mine] during the
time period that Consol operated . . . [the mine.]” (Stip. 9), beyond the stipulation the situation
with regard to the company’s applicable history of previous violations is murky.
Concerning the violation of section 75.202(a) set forth in Order No 8025378, the
Secretary argues that Consol “was assessed 705 violations over 1,174 inspection days.” Sec. Br.
79. The Secretary refers the Court to Exhibit A of his Petition for Assessment of Civil Penalty.
Id. Exhibit A is Part of Government Exhibit 3. Exhibit A indeed indicates that in the 15 months
prior to June 22, 2010, there were 705 assessed violations that had been paid, finally adjudicated
or otherwise had become final orders at the mine and that they were cited during 1174 inspection
days over the same period. See Gov’t Exh. 3, Exh. A. The Secretary also asserts that “[o]f those
violations, 19 were repeat violations of [section] 75.202(a).” Sec. Br. 79. The Secretary further
states that this “significant [number] of repeat violations [counsels] in favor of the Secretary’s
proposed penalty assessment.” Sec. Br. 80. Exhibit A is not helpful in affirming the Secretary’s
allegations with regard to the alleged repeat violations. It states “Special Assessment - See
attached Narrative.” Gov’t Exh. 3, Exh. A. The Narrative, however, says nothing about “repeat
violations.” The Secretary offers no citation for his assertion that the company had 19 repeat
violations of section 75.202(a) in the 15 months between March 22, 2009 and June 22, 2010.
However, the parties stipulated that the violation history reports (Gov’t Exh. 4, 5 and 6) are
accurate. When the Court reviews the reports it finds that Government Exhibit 6, the last dated
report, showed 21 violations of section 75.202(a) that occurred at the mine between March 22,
2009 and June 22, 2010. As best as the Court can determine, this represents a small, not large,
number of repeat violations of section 75.202(a). 30 C.F.R. §100.3(c)(2). Based on these
documents and on the Secretary’s penalty regulations as set forth in 30 C.F.R. § 100.3(a), the
Court finds that Consol has a large overall history of previous violations and a small history of
repeat violations of section 75.202(a). 30 C.F.R. 100.3(c)(1); 30 C.F.R. §100.3(c)(2).
With regard to the previous history concerning Citation No. 8025516 cited on July 21,
2010, Exhibit A indicates that 687 violations were cited at the mine over 1163 inspection days in
the 15 months between April 21, 2010 and July 21, 2010 and Government Exhibit 7 indicates
that during the same period of time there were 16 final violations of section 75.220(a) cited
between April 21, 2009 and July 21, 2010. Gov’t Exh. 3 at 5 (Exh. A);Gov’t Exh. 7. Based on
the Secretary’s regulations the Court concludes this represents a large overall history of previous
violations and a small history of repeat violations of section 75.220(a).
Finally, with regard to the previous history concerning Citation No. 8025562 cited on
July 26, 2010, Exhibit A indicates that 670 violations were cited at the mine over 1160
inspection days between April 26, 2009 and April 26, 2010, and Government Exhibit 7 indicates
that during the same period of time there were 15 final violations of section 75.220(a) cited.
Gov’t Exh. 3 at 5 (Exh. A); Gov’t Exh. 7. Based on the Secretary’s regulations, the Court

36 FMSHRC Page 648

concludes this represents a large history of previous violations and a small history of repeat
violations of section 75.220(a). 30 C.F.R. §§100.3(c)(1), 100.3(c)(2).50
GOOD FAITH ABATEMENT
The parties stipulated that Consol demonstrated good faith in abatement of the alleged
violations, and the Court so finds. Stip. 8.
ABILITY TO CONTINUE IN BUSINESS
The parties stipulated that Consol’s payment of the total proposed civil penalty would not
affect the company’s ability to remain in business. Stip. 10. Given that the total payment of the
civil penalty the Court will assess is less than that proposed, the Court concludes that the total
payment will not affect the company’s ability to continue in business.
PENALTY ASSESSMENTS
ORDER NO.
8025378

DATE
6/22/2010

30 CFR
§75.202(a)

PROPOSED ASSESSMENT
$50,700

The Court has found that the violation was S&S and very serious. It further has found
that the violation was due to the company’s unwarrantable failure to comply with the standard
and that it recklessly disregarded its duty to comply with the standard. These findings, as well as
Consol’s large size and the fact that the penalty assessed will not affect its ability to continue in
business, lend support to the Secretary’s proposed assessment. However, the Court also has
found that while Consol’s overall history of previous violations is large, its repeat violations of
section 75.202(a) is small, a factor that in the Court’s view warrants a slight reduction of the
Secretary’s proposed assessment. Accordingly, the Court concludes that a civil penalty of
$47,700 is appropriate.51
CITATION NO.
8025516

DATE
7/21/2010

30 CFR
PROPOSED ASSESSMENT
§75.220(a)(1) $1,900

The Court has found that the violation was not serious. It further has found that the
violation was due to the company’s moderate negligence. The fact that the violation was not
serious, that Consol is large in size, that it will not be affected by the penalty assessed and the
fact that the mine has a large overall history of previous violations all lend support to the
Secretary’s proposed assessment. However, the fact that the company’s negligence was
50

In addition, the Court notes that counsel for Consol established though questioning
Inspector Grimm that with regard to the violation of section 75.220(a) cited in Citation No.
8025562, the frequency with which the standard was cited at the mine was below the national
average. Tr. 279-280.
51

The Court views the fact that Consol demonstrated good faith in abating the violation
as a neutral factor warranting neither an increase nor a decrease in the assessed penalty.

36 FMSHRC Page 649

moderate and the fact that the company has a small history of repeat violations of section
75.220(a)(1) warrant a reduction in the Secretary’s proposed assessment. Accordingly, the Court
concludes that a civil penalty of $800.00 is appropriate.52
CITATION NO.

DATE

30 CFR

PROPOSED ASSESSMENT

8025562

7/26/2010

§75.220(a)(1) $1,900

The Court has found that the violation was not serious. It further has found that the
violation was due to the company’s moderate negligence. The fact that the violation was not
serious, that Consol is large in size, that it will not be affected by the penalty assessed and the
fact that the mine has a large overall history of previous violations all lend support to the
Secretary’s proposed assessment. However, the fact that the company’s negligence was
moderate and the fact that the company has a small history of repeat violations of section
75.220(a)(1) warrant a reduction in the Secretary’s proposed assessment. Accordingly, the Court
concludes that a civil penalty of $800.00 is appropriate.53

52

The Court views the fact that Consol demonstrated good faith in abating the violation
as a neutral factor warranting neither an increase nor a decrease in the assessed penalty.
53

The Court views the fact that Consol demonstrated good faith in abating the violation
as a neutral factor warranting neither an increase nor a decrease in the assessed penalty.

36 FMSHRC Page 650

ORDER
Within 40 days of the date of this decision, Consolidation Coal Company SHALL PAY
a total civil penalty of $49,300, and upon payment of the penalty this proceeding IS
DISMISSED. 54

/s/ David F. Barbour
David F. Barbour
Administrative Law Judge
Distribution: (Certified Mail)
Bryan C. Shieh, Esq.; James McClammer, Esq., Office of the Solicitor, U.S. Department of
Labor, 170 S. Independence Mall West, Suite 630E, Philadelphia, PA 19106
Patrick W. Dennison, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401
Liberty Ave., Pittsburgh, PA 152222

54

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 651