JUNE2004

COMMISSION DECISIONS

06-03-2004
06-08-2004
06-09-2004
06-22-2004

Cahill Industries Corporation
Enercorp Incorporated
Dacotah Cement
Eastern Associated Coal Corporation

YORK 2004-38-M
PENN 2003-187
CENT 2001-218-M
WEV A 2004-91

Pg.453
Pg.457
Pg.461
Pg.480

KENT 2003-274
WEST 2003-392-M
CENT 2003-307-D
KENT 2004-34
WEVA 2002-138
PENN 2002-116
SE 2003-97-R

Pg.485
Pg.504
Pg. 510
Pg.515
Pg.520
Pg.539
Pg.556

ADMINISTRATIVE LAW ,JUDGE DECISIONS
06-03-2004
06-04-2004
06-04-2004
06-08-2004
06-15-2004
06-18-2004
06-30-2004

Charles Clevinger/David Coleman emp. by
Lodestar Energy, Inc.
Palmer Coking Coal Company
Michael Miller v. TXU Mining Co., LP
Harlan Cumberland Coal Company
Independence Coal Co., Inc.
Maple Creek Mining, Inc., et al.
Jim Walter Resources, Inc.

i

JUNE 2004

Review was granted in the following cases during the month of June:
Georges Colliers, Inc. v. Secretary of Labor, MSHA, EAJ 2002-2. Equal Access to Justice proceeding
(Judge Barbour, April 26, 2004)
Secretary of Labor, MSHA v. Calmat Company of Arizona, WEST 2004-86-M. (Judge Melick,
May 21, 2004)

No case was filed in which Review was denied during the month of June:

ii

COl\1MISSION DEQSIONS AND ORDERS

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

J_une 3, 2004

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADN1INISTRATION (MSHA)

Docket No. YORK 2004-38-M
A.C. No. 30-01295-03040

v.
CAHILL INDUSTRIES CORPORATION

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On April 2, 2004, the Commission received from Cahill
Industries Corporation ("Cahill") correspondence which we construe as a motion to reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On July 11, 2003, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed assessment (A.C. No. 30-01295-03040) to Cahill. In its motion,
Cahill stated that it challenges the citations contained in the assessment and wishes to appeal
them. Mot. No documentation was attached to Cahill's motion. The Commission received a
response from the Secretary of Labor stating that, because Cahill had identified no grounds for
reopening the penalty assessments, she required additional information before she could express
her position on the operator's motion. Sec'y Resp. at 1-2. Cahill subsequently submitted an
affidavit from its President, stating that he believed the inspection was a "safety audit" and that
MSHA officials confirmed that any citations immediately abated would not result in financial
penalties. Aff. of Anthony B. Cahill, Jr. at 1-2.
26 FMSHRC 453

We have_held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

26 FMSHRC 454

Cahill has not adequately explained why it failed to timely contest the proposed
assessment. On the basis of the present record, we are unable to evaluate the merits of Cahill' s
·:
position. We hereby remand this matter to the Chief Administrative Law Judge for a
determination of whether good cause exists for Cahill' s failure to timely contest the penalty
proposal and whether relief from the final order should be granted. If it is determined that such
relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.

26 FMSHRC 455

Distribution
Anthony Cahill, President
Cahill Industries Corporation
138 Kent Road
Wassaic, NY 12592
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

26 FMSHRC 456

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

. June 8, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2003-187
A.C. No. 36-08071-03528

v.
ENERCORPINCORPORATED

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On August 22, 2003, the Commission received from
EnerCorp Incorporated ("EnerCorp") correspondence which we construe as a request to reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On August 23, 2002, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment (A.C. No. 36-08071-03528) to EnerCorp's
mine in Morrisdale, Pennsylvania. In its request, EnerCorp states that its president had discussed
the proposed penalties with an individual with MSHA; that, based on this conversation, the
company believed that MSHA would "throw out" most, if not all, of the penalties; and that the
company had been waiting for further information from MSHA. Mot. EnerCorp did not attach
any supporting documentation to its request. The Secretary states that, in her opinion,
EnerCorp's request does not establish that the proposed penalty assessment should be reopened
but that she does not oppose EnerCorp's filing of a supplemental motion further addressing the

26 FMSHRC 457

question of whether it can satisfy the requirements for reopening the assessment and obtaining
relief from the final section 105(a) order.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

26 FMSHRC 458

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

26 FMSHRC 459

Distribution
Harvey Bumbarger, President
EnerCorp, Inc.
1686 Allport Cutoff
Monisdale, PA 16858
W. Christian Schumann, Esq.
Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22oc1 Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

26 FMSHRC 460

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

June9, 2004
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. CENT 2001-218-M

DACOTAH CEMENT

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners
DECISION
BY: Beatty, Jordan, and Young, Commissioners
This contest proceeding arises under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (1994) ("Mine Act"). Administrative Law Judge Irwin Schroeder vacated
Citation No. 791963 charging Dacotah Cement with a significant and substantial ("S&S") 1
violation of 30 C.F.R. § 46.7 (2001). 2 24 FMSHRC 782, 786 (July 2002) (AU). We granted the

1

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l), 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

At the time of the incident giving rise to the citation at issue in this proceeding, section
46.7 provided in pertinent part:
(a) You must provide any miner who is reassigned to a new task in
which he or she has no previous work experience with training in
the health and safety aspects and safe work procedures specific to
that new task. This training must be provided before the miner
perfonns the new task.
(b) If a change occurs in a miner's assigned task that affects the
health and safety risks encountered by the miner, you must provide
26 FMSHRC 461

Secretary of Labor's petition for discretionary review challenging the judge's decision. For the
reasons set forth below, we vacate the judge's decision and remand this case for further
proceedings.
I.
Factual and Procedural Background
Dacotah Cement operates a huge portland cement production facility in Rapid City, South
Dakota. 24 FMSHRC at 783. In cement production, limestone, shale, and iron ore are crushed,
mixed together, and sent to a losche mill, which consists of two rolling cylinders that press down
against a rotating turntable. Id. The ground material is mixed with water and sent through a kiln
to become clinker. Id. In the losche mill, the downward grinding pressure of the two rolls is
controlled by a hydraulic system. Id. When this system is energized, the oil in the system is
pressurized to approximately 1000 pounds per square inch ("psi"). Id. The mill control panel
contains valves to reduce and relieve this pressure in the event work is required on the system.
Id.
The hydraulic pressure is transmitted from a pump to the mill through heavy duty hoses.
Id. Several Dacotah Cement employees are responsible for servicing and maintaining the
equipment, including replacement of the hoses. Id. at 783-84. On January 11, 2001, service and
maintenance crew employee Robert Rohrbach noticed a pool of oil below one of the two-inch-

the miner with training under paragraph (a) of this section that
addresses the change.
(c) You are not required to provide new task training under
paragraphs (a) and (b) of this section to miners who have received
training in a similar task or who have previous work experience in
the task, and who can demonstrate the necessary skills to perform
the task in a safe and healthful manner. To determine whether task
training under this section is required, you must observe that the
miner can perform the task in a safe and healthful manner.
(d) Practice under the close observation of a competent person may
be used to fulfill the requirement for task training under this
section, if hazard recognition training specific to the assigned task
is given before the miner performs the task.

***
30 C.F.R. § 46.7 (2001) (revised 67 Fed. Reg. 42382 (June 20, 2002), effective September 23,
2002).
26 FMSHRC 462

diameter hydraulic hoses and concluded that the hose was leaking hydraulic oil. Tr. 43. On
January 12, 2001, he and fellow service and maintenance crew employee Fred Juopperi were
assigned to replace one of the hydraulic hoses on the losche mill. 24 FMSHRC at 784.
As of January 12, 2001, Rohrbach had worked as a maintenance employee for Dacotah
Cement for more than ten years. Id. at 784. Juopperi had been employed by Dacotah since June
1991 and had worked as a mechanical repair person, second class, for about one and one half
years. Tr. 163. Before January 12, 2001, Juopperi had never performed significant maintenance
work on the losche mill. 24 FMSHRC at 784. John Harris, Dacotah' s Safety Director, testified
that all miners received training in Spring 2000 covering the company's safety and health
manual, which instructed miners on the lockout/tagout procedures of various systems, including
bleeding off stored energy. Tr. 213, 233-34; R. Ex. D at 21-24. Both Rohrbach and Juopperi
testified that they were familiar with the company's lockout/tagout policy contained in its
manual. Tr. 140-41, 178-79.
Rohrbach and Juopperi worked under the direction of several supervisors. 24 FMSHRC
at 784. On January 12, 2001, Melvin Wooley was the supervisor responsible for Rohrbach and
Juopperi. Id. At the hearing, Wooley testified about Rohrbach's and Juopperi's work history
and training. Id. He testified that neither Rohrbach nor Juopperi had received specific training in
heavy hydraulic hose replacement, but that he had observed Rohrbach perform a great number of
procedures on the losche mill which required use of the pressure relief valves. Id.
On January 12, 2001, Rohrbach began the work of replacing the hoses by assembling the
necessary tools and cleaning the work area. Id. He turned off the pump which pressurizes the
system, turned off and locked the breaker switch which supplies power, and read the pressure
indicator at 1,024 psi. Tr. 33-34. He had almost completed these preparations when Juopperi
joined him. 24 FMSHRC at 784. The two men removed the guards around the hose area and
finished gathering the necessary tools to complete the job. Tr. 150, 153-54. They then left the
losche mill for approximately 30 minutes to join the rest of the maintenance crew for the midmorning break. 24 FMSHRC at 784. When they returned to the losche mill they resumed the
process of replacing the hose. Id.
Working together, Rohrbach and Juopperi attempted to uncouple the hose from the
hydraulic system manifold. Tr. 130, 157-58, 161-62. Using a piece of pipe or "cheater bar" over
the end of his wrench to provide more leverage, Juopperi was able to loosen the coupling. Tr.
17-18, 142. After the coupling was broken loose and turning, Rohrbach noticed fluid oozing
from the threaded joint. 24 FMSHRC at 784. Before he could act on his suspicions that the
system was still pressurized, the coupling parted and the hose began to thrash about releasing
fluid on both men. Id. Juopperi got fluid in his eyes and Rohrbach was struck by the metal end
of the hose and doused with fluid. Id. at 784-85. Both men moved away from the immediate
danger area and called for help. Id. at 785. As the fluid escaped, the system pressure rapidly
decreased and the danger abated. Id.

26 FMSHRC 463

Both Rohrbach and Juopperi were taken to a hospital for medical attention. Id. Rohrbach
suffered a fractured elbow; Juopperi had less significant injuries. Id. Dacotah notified the local
MSHA office of this accident. Id. MSHA Investigator Joseph Steichen went to the site to
investigate. Id.
Steichen testified that he interviewed Juopperi and Rohrbach after their release from the
hospital, asked Rohrbach if he had opened the pressure relief valves prior to disconnecting the
hose, and that Rohrbach replied that he did not know where the pressure relief valves were
located. Id. Steichen further testified that based on this response and Rohrbach's and Juopperi's
actions, he concluded that Rohrbach and Juopperi had not been sufficiently trained in the task
they were assigned to perform. Id.; Tr. 36-38.
The judge found that the Secretary failed to meet her burden of proof that both Rohrbach
and Juopperi were inadequately trained in violation of 30 C.F.R. § 46.7. 24 FMSHRC at 786. In
reaching this conclusion, the judge gave more weight to evidence of Rohrbach's training history
and the corroborating testimony of his supervisors than to the inspector's testimony. Id. at 785.
The judge found that the inspector made an improper presumption based on the conclusion that
the accident would not have happened had the employees been properly trained. Id. at 785-86.
He noted that the inspector took what amounted to a "res ipsa loquitor'3 attitude toward the
training requirement when he based his conclusion on his interview of Rohrbach and Juopperi,
and an examination of the accident scene. Id. Concluding that "the record in this case does not
demonstrate that the ... accident was the result of inadequate training rather than carelessness or
inattention," the judge found that the record supported the conclusion that "Rohrbac[h] had been
adequately trained in the task assigned to him ... and he was able to provide sufficient
supervision to Mr. Juopperi." Id. at 786. The judge dismissed the Secretary's penalty petition.
Id.

II.
Disposition
Section 46.7 of 30 C.F.R. implements section 115(a)(4) of the Mine Act, 30 U.S.C.
§ 825(a)(4),4 requiring operators to provide miners with training for new tasks and to supply any
new health and safety information related to assigned tasks before miners perform those tasks.

3

Literally, "the thing speaks for itself." Black's Law Dictionary 1173 (5th ed. 1979).
"Res ipsa loquitur is [a] rule of evidence whereby negligence of alleged wrongdoer may be
inferred from mere fact that accident happened...." Id.
4

Section 115(a)(4) of the Mine Act provides in pertinent part that "any miner who is
reassigned to a new task in which he has had no previous work experience shall receive training
in accordance with a training plan approved by the Secretary ... in the safety and health aspects
specific to that task prior to performing that task." 30 U.S.C. § 825(a)(4).
26 FMSHRC 464

See 64 Fed. Reg. 53080, 53115 (Sept. 30, 1999). Sections 46.7(a) and (b) set forth the conditions
when task training is required, specifically when a miner is reassigned to a new task with which
he or she does not have prior work experience or training, 30 C.F.R. § 46.7(a), or where a change
occurs in the miner' s assigned task that affects the health or safety risks associated with the task,
30 C.F.R. § 46.7(b). There are various means of providing task training, two of which are
specifically set forth in sections 46.7(c) and (d). 64 Fed. Reg. at 53116.

The Secretary has petitioned for review of the judge's apparent conclusion that Juopperi
was adequately trained under the regulations before Dacotah assigned him to replace the
hydraulic hose on the losche mill with Rohrbach. PDR at 9; S. Br. at 9. In particular, the
Secretary alleges that the operator failed to satisfy any of the requirements for task training as to
Juopperi under section 46.7, including subsection (d). PDR at 9, 12-14; S. Br. at 9, 13-16.
Dacotah responds that it was providing task training to Juopperi pursuant to subsection (d) by
having Juopperi practice under the close observation of Rohrbach, "a competent person." D. Br.
at 10-11.
Section 46.7(d) permits an operator to satisfy the new task training requirements by
allowing a miner to " [p]ractice [the new assigned task] under the close observation of a
competent person," if the miner has received "hazard recognition training specific to the assigned
task ... before the miner performs the task." 30 C.F.R. § 46.7(d) (emphasis added). Although
the judge did not explicitly frame his analysis within the terms of section 46.7, it appears that he
may have implicitly considered the terms of subsection (d) when he concluded that "Rohrbac[h]
had been adequately trained in the task assigned to him ... and he was able to provide sufficient
supervision to Mr. Juopperi."5 24 FMSHRC at 786.
The Secretary cites record evidence which tends to support her claim that Dacotah failed
to provide adequate task training to Juopperi pursuant to section 46.7(d), and which fairly
detracts from the judge's conclusion. S. Br. at 10-16. There is no indication in the judge's
decision that he considered this evidence. To the extent that the judge ignored record evidence,
he erred. As the Commission explained in Mid-Continent Resources, Inc., the judge must

5

Contrary to our concurring colleagues' concerns, the Secretary explicitly raised the
argument below that the operator did not satisfy the task training requirements as to Juopperi
under subsection (d). She amended her citation prior to trial to allege a violation of section 46.7
in its entirety, putting the operator on notice that the entire standard was at issue. 24 FMSHRC at
782; Tr. 4-7. Notwithstanding our colleagues' contention that she was late in raising the
argument (slip op. at 15), the record is clear that she expressly addressed the issue in her response
to the judge's pre-hearing order (S. Resp. to Pre-Hearing Order at 2) and raised the issue at trial
(Tr. 86-87). She then explicitly argued it in her post-hearing brief to the judge (S. Post-Hearing
Br. at 7-9). Even Dacotah acknowledges in its brief to the Commission that "[t]he Secretary
attempted to convince the Administrative Law Judge that Dacotah Cement had violated the
regulation with respect to both Mr. Rohrbach and Mr. Juopperi." D. Br. at 3.
26 FMSHRC 465

analyze and weigh all probative record evidence, make appropriate findings, and explain the
reasons for his decision. 16 FMSHRC 1218, 1222 (June 1994).
We now turn to the question of the appropriate interpretation of section 46_.?(d). The
"language of a regulation ... is the starting point for its interpretation." Dyer v. United States,
832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm'n v. GTE Sylvania,
Inc., 447 U.S. 102, 108 (1980)). Where the language of a regulatory provision is clear, the terms
of that provision must be enforced as they are written unless the regulator clearly intended the
words to have a different meaning or unless such a meaning would lead to absurd results. See
Dyer, 832 F.2d at 1066; Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993).
While the parties disagree on the meaning of certain terms in the first portion of
subsection (d), the language of the second portion pertaining to hazard recognition training is
clear and unambiguous. Subsection (d) clearly requires that a miner be trained in recognizing
hazards specific to the assigned task before performing the task. 30 C.F.R. § 46.7(d). The
hazard recognition training must be specific to the assigned task - in this instance, repairing and
replacing the hydraulic hose on the losche mill - and "must cover the health and safety aspects
and safe work procedures specific to the task." 64 Fed. Reg. at 53087. In the preamble to the
final rule, the Secretary explained that hazard recognition training would encompass "an
explanation of the potential health or safety hazards associated with the task and ways of.
minimizing or avoiding exposure to these hazards." Id. The language of the regulation also
clearly requires that such training be given before the miner performs the assigned task.
The Secretary contends that Dacotah did not provide hazard recognition training to
Juopperi before permitting him and Rohrbach to replace the hydraulic hose. The judge made no
finding regarding what training, if any, Juopperi received. The judge's legal analysis is thus
incomplete. See Mid-Continent, 16 FMSHRC at 1222.
Our review of the record suggests there is evidence on both sides of the issue. Dacotah
points to evidence that Juopperi understood that he was to take instructions from Rohrbach as
they performed the assigned tasks. Tr. 181. While the Secretary contends that there is no
evidence that Juopperi received any relevant training, the record indicates that Juopperi may have
received annual refresher training approximately nine months prior to the accident, which may
have covered aspects of hydraulics and high-pressure hazards. Tr. 138-41, 177-79, 233-34.
Dacotah also points to its safety and health manual which includes instructions to bleed off
stored energy in various systems before performing maintenance and service on such systems
under its lockout/tagout procedures. Tr. 233-34; R. Ex. D at 21. However, when making a
finding as to whether Juopperi received hazard recognition training specific to the task of
replacing a hydraulic hose, the judge must take into account whether such training was provided
sufficiently close in· time to the assigned task. He should also consider whether the training
included not only general familiarization with hydraulic systems and principles, but also

26 FMSHRC 466

sufficient guidance in safely releasing stored energy from the type of hydraulic system used on
the losche mill.

If the judge finds that Juopperi did not receive hazard recognition training specific to the
task of replacing a hydraulic hose, he must affirm the citation. If he finds Juopperi did receive
such training, he must address the other requirement of subsection (d), and determine whether
Juopperi "practice[d] under the close observation of a competent person," 30 C.F.R. § 46.7(d), as
he did not fully address this aspect of the regulation in his original decision.6
Although the judge did not make an explicit finding as to whether Rohrbach qualified as
a "competent person," he did find that Rohrbach was adequately trained and able to supervise
Juopperi. 24 FMSHRC at 786. To the extent that the judge took into account, when making his
finding, the standard's "competent person" requirement, we conclude that substantial evidence
supports the judge's finding. 7
Under the Secretary's regulations, a "competent person" is defined in pertinent part as "a
person designated by the []operator ... who has the ability, training, knowledge, or experience to
provide training to miners in his or her area of expertise [and the ability] both to effectively
communicate the training subject to miners and to evaluate whether the training given to miners
is effective." 30 C.F.R. § 46.2(b).

6

Our colleagues misconstrue our reading of the regulation by claiming that we are
finding a violation based on only one component of subsection (d)-the lack of adequate hazard
recognition training. Slip op. at 18 n.7. First, there is no question that section 46.7 applies
because the record clearly establishes that Juopperi was assigned to a new task in which he had
no prior experience or training. 24 FMSHRC at 784; Tr. 163-65, 167, 170-71. See discussion
infra, slip op. at 10-11. In addition, an operator who relies on subsection (d) when providing task
training must satisfy all the components of the subsection. Thus, if an operator fails to fulfill one
component of subsection (d), ii-cannot rely on subsection (d) as a means of providing task
training, even if it can show that it fulfilled the other components. For example, even if an
operator allows a miner requiring new task training to practice a task under the close observation
of a competent person, if the operator has not given that miner hazard recognition training
specific to the assigned task before the miner practices the task, then the operator has failed to ·
satisfy the requirements of subsection (d). Id.
7

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(l}. "Substantial evidence" means '"such relevant evidence·as a reasonable
mind might accept as adequate to support [the judge's] conclusion.'" Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
26 FMSHRC 467

The record evidence indicates that Rohrbach had extensive work experience at Dacotah,
and more particularly, as a mechanical repair person, first class, he was responsible for directing
mechanical repair employees in the second and third classes. Tr. 102-06; D. Ex. B. The record
evidence also indicates that Rohrbach received some training specific to hydraulics and
previously worked on the hydraulic spring system, which included locking down and depressurizing the system. Tr. 106-10, 198-99. Rohrbach testified that he knew how to depressurize the system and that in all past instances, he had successfully petformed work on the
system. Tr. 109-13. Contrary to the judge's finding that Rohrbach had never replaced a hose
before the January 12 accident (24 FMSHRC at 784), the record clearly establishes that he had
petformed such work before the accident (Tr. 111-12). We also note that although Investigator
Steichen testified that Rohrbach admitted he did not know the location of the pressure release
valves (Tr. 34-35; G. Ex. 2 at 9, 11), the judge credited Rohrbach's conflicting testimony that he
was familiar with the valves (24 FMSHRC at 785; Tr. 116-18).8 Accordingly, we conclude that
substantial evidence supports that Rohrbach was a competent person under section 46.7(d).
As to the remaining issues - whether Juopperi was "practicing" the assigned task of
replacing a hose under the "close observation" of Rohrbach - the judge did not sufficiently
address them. Consequently, if he reaches the issues on remand, we are leaving it to him to make
the necessary findings in the first instance. See Donovan ex rel. Chacon v. Phelps Dodge Corp.,
709 F.2d 86, 92 (D.C. Cir. 1983).
We do note the following about section 46.7(d). The term "practice" is not defined in the
regulations, the Mine Act, or in the preamble. In the absence of a statutory or regulatory
definition, the Commission applies the ordinary meaning of the word. Peabody Coal Co., 18
FMSHRC 686, 690 (May 1996), affd, 111F.3d963 (D.C. Cir. 1997) (table). The definition of
the verb "practice" is "to make use of ... to carry on or engage in ... to do or petform often,
customarily or habitually ... to petform an act often or customarily in order to acquire
proficiency or skill." Webster's Third New Int'l Dictionary (Unabridged) 1780 (1993).
Consequently, we reject the Secretary's argument that under subsection (d), "practice"
should be narrowly defined as only permitting a test or trial petformance. Defining "practice" in
the limited manner the Secretary suggests is inconsistent with the language and general
framework of section 46.7, which permits an operator to satisfy task training in a number of
different ways, including traditional classroom instruction as contemplated in subsection (a) or
alternatively, with hands-on training as described in subsection (d). Moreover, the preamble to
the final rule generally encourages hands-on training to assist miners in learning "how to avoid
the hazards presented by the petformance of the task in the surrounding environment." 64 Fed.
Reg. at 53117. In the preamble, the Secretary stated that the intent of the regulation is to allow

8

To the extent that the Secretary now challenges the judge's credibility determinations,
we defer to the judge. 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).
26 FMSHRC 468

"greater flexibility in the implementation of new task training to fit [an operator's] specific
mining operation and workforce." Id. at 53116. Thus, we conclude that construing the word
"practice" broadly, to include repeated performances of an assigned task, is consistent with both
the dictionary definition of the term and the language and purpose of the regulation. By
remaining under the close observation of a competent person, a miner is permitted to actually
perform the task, while minimizing the risk of accident or injury, and gain hands-on experience,
which is consistent with the underlying purpose of task training. See id. at 53116 (stating that the
purpose of task training is "to reduce the likelihood of accidents resulting from a miner's lack of
knowledge about the potential hazards of a task"). If the Secretary intended a more restrictive
reading of the word "practice," she could have explicitly stated that intent in her preamble.
Likewise, the regulatory framework of section 46.7 encourages an expansive reading of
the term "practice." Under subsections (a) and (b), it appears that the Secretary clearly intended
that new task training would be provided by traditional classroom instruction. See 30 C.F.R.
§ 46.7(a) and (b). Subsection (d) is an alternative training method to classroom instruction under
subsections (a) and (b). See 30 C.F.R. § 46.7(d). In the preamble, the Secretary explained that
"effective task training includes a combination of different types of training, such as classroom
instruction, demonstration by the competent person, practical hands-on training, and evaluation
of the miner's ability to apply the training in the workplace." 64 Fed. Reg. at 53116. Given the
dictionary definition of the term and the regulatory framework of section 46.7, interpreting
"practice" in the restrictive manner as the Secretary suggests would defeat the purpose of the
alternative approaches to task training permitted under section 46.7. Of course, we also note that
any "practice" contemplated by the regulation must be carried out in a safe manner.
As for the requirement that a miner practice under the "close observation" of a competent
person, in the preamble to the final rule, the Secretary explained:
"Close observation" means that the competent person is in the
immediate vicinity of the miner and is watching the actions of the
miner being trained to make sure that the miner is performing the
task in a safe and healthful manner. The nature of the task will
determine the degree of attention that is needed, and the level of
observation should be commensurate with the risks inherent in the
task being performed. The competent person who is observing the
miner should also be assessing the miner's proficiency in
performing the task, as part of the training itself as well as the
competent person's evaluation of whether the training is effective.
64 Fed. Reg. at 53117.
While the judge found that Rohrbach "was able to provide sufficient supervision" to
Juopperi, 24 FMSHRC at 786, he made no finding whether Rohrbach indeed provided such
supervision. On appeal, the parties disagree as to whether Rohrbach provided "close
26 FMSHRC 469

observation" of Juopperi while perfonning the assigned task. The Secretary points to evidence in
the record suggesting that Rohrbach provided little direction to and supervision of Juopperi, who
was inexperienced with high pressure systems, while changing the hydraulic hose. PDR at 9-10;
S. Br. at 9-11. Although Juopperi testified that he understood that he was to take instructions
from Rohrbach as they performed the assigned task (Tr. 181), both Rohrbach and Juopperi
testified that Rohrbach did not provide explicit instruction to Juopperi (Tr. 149-51, 183-84, 187).
Dacotah contends that Rohrbach did provide "close observation" of Juopperi, arguing that the
two miners worked side-by-side as they attempted to replace the hose. D. Br. at 9.
Despite Dacotah's reliance on the close physical proximity of the two miners while
perfonning the task, the preamble clearly indicates that the Secretary intended the term ''close
observation" to mean more than merely working side-by-side. The regulation imposes a duty to
supervise, evaluate performance, and ensure the trainee is able to safely perform the procedure.
The preamble envisions that a competent person be in the "immediate vicinity" and watching the
miner-in-training to assure that he is perfonning the task safely. 64 Fed. Reg. at 53117. The
record evidence suggests that at times, Rohrbach was not carefully watching Juopperi during the
hose change. Rohrbach testified that while he and Juopperi were trying to loosen the nut on the
hose, he "scooted around the corner still holding the wrench while [Juopperi] was loosening the
nut." Tr. 130. The judge must consider the evidence and make a finding as to whether Rohrbach
in fact "closely observed" Juopperi while he performed the assigned task.
Despite the contention of our concurring colleagues (slip op. at 15-17), the facts of this
case clearly support the conclusion that Juopperi was assigned to change the hose on the losche
mill, and thus subject to the task training requirements of section 46.7. It is undisputed that
changing hoses was within Juopperi's assigned duties. Tr. 164. In addition, the evidence clearly
indicates, and the judge found, that as a part of Juopperi 's duties as a maintenance repair person,
on January 12, he was assigned with Rohrbach to replace the hydraulic hose on the losche mill.
Tr. 170-71; 24 FMSHRC at 783-84. This occurred at a 7 a.m. meeting held that day. Tr. 170-71.
The concurrence fails to point to evidence to the contrary. Thus, notwithstanding our colleagues'
concurring opinion, we see no need for the judge to revisit his finding on remand. 9
In the regulations, a ''task" is defined as "a work assignment or component of a job that
requires specific job knowledge or experience." 30 C.F.R. § 46.2(n). The Secretary explained in
the preamble to the final rule that "a task may or may not be performed on a regular basis" and
rejected that "instances where a miner is assigned to perform a task on a one-time basis" would
preclude the requirement for task training. 64 Fed. Reg. at 53097. Clearly, changing a hydraulic

9

We acknowledge that there may be circumstances that call into question the application
of section 46.7, such as where a miner coming across another miner in the midst of perfonning a
routine task, for which general mining experience would provide sufficient grounding in the
health and safety aspects of the task, provides assistance to the other miner without his or her
supervisor's explicit instruction to do so. See infra, slip op. at 17. However, this was not the
case here.
26 FMSHRC 470

hose on the losche mill requires specific knowledge of hydraulic systems and losche mill
operations. Thus, the job Juopperi was assigned to perform is certainly a "task" within the
meaning of the regulations. As explained above, that task was also clearly within the scope of
Juopperi's job duties. Tr. 164.
We also note that the preamble to the final rule requires training "if a change occurs in a
miner's task that affects the health and safety risks encountered by the miner.... This means
that task training is required whenever any change could impact the health and safety conditions
under which the miner works." 64 Fed. Reg. at 53116. This was clearly the case when Juopperi
changed the hose. In any event, because the parties have not had a chance to be heard on the
issue, it would be unwise for the Commission to address in this case the application of section
46.7 to "commonplace" assignments. 10
Based on the foregoing, we vacate the judge's decision. Because the judge vacated the
citation below, he did not reach the issue of whether the violation was S&S. If the judge
concludes on remand that Dacotah violated the standard, he must then determine whether the
violation was S&S and assess a penalty.

10

We also note that because the operator never raised the issue of the non-applicability of
section 46.7 to Juopperi either to the judge below or before the Commission on review, and the
Commission did not sua sponte direct review of the issue, there is some question as to whether
this issue is properly before the Commission. Our decision need not focus on this question, for
we conclude, in any event, that the regulation is clearly applicable to Juopperi. See supra, slip
op. at IO n.9. Moreover, the operator has implicitly conceded that section 46.7 applies to
Juopperi by arguing in its rebuttal to the Secretary's post-hearing brief that the regulation did not
apply to Rohrbach. R. Rebuttal at I. The operator did not repeat this contention vis-a-vis
Juopperi, arguing instead that Mr. Juopperi had received the necessary training because he "was
performing the task under the close observation of Mr. Rohrbach, 'a competent person'." Id.
Moreover, the operator explicitly cited section 46.7(d) when it also supplied this rationale in both
its pre-hearing and post-hearing submissions to the judge. See R. Pre-Hearing Submissions at 1
(citing section 46.7(d) in support of its contention that "Juopperi was performing the task under
the close observation of Mr. Rohrbach, a 'competent person"'), R. Post-Hearing Br. at 3, 7
(same); see also R. Answer to Pet. for Assessment of Penalty at 1 (stating, in the alternative, that
the employees "were in the process of being trained at the time of the incident").
26FMSHRC471

m.
Conclusion
Accordingly, we vacate the judge's decision and remand for further proceedings
consistent with the Commission's decision.

r::_//(f

gt

Robert H. Beatty, Jr., Commi..:00.

26 FMSHRC 472

Chairman Duffy and Commissioner Suboleski, concurring:
We concur with our colleagues' conclusion that this case should be remanded to the
Administrative Law Judge so that he can make additional findings concerning whether a
violation of section 46.7 occurred with regard to Fred Juopperi. While the judge's opinion
contains all necessary findings with regard to the .need for new task training for Robert Rohrbach,
we do not believe that his opinion contains all necessary findings with regard to the need for new
task training for Juopperi.
Although we concur with the need for a remand, we write separately for two principal
reasons. First, unlike our colleagues, we believe that on remand the judge's findings and legal
conclusions must further address the following matters: (1) the ambiguity of the evidence
regarding whether on January 12 the supervisor specifically assigned Juopperi, in addition to
Rohrbach, to perform the task of changing the hydraulic hose at the losche mill; and (2) what
training requirements applied, if any, when Juopperi began assisting Rohrbach in changing the
hose after Rohrbach, who clearly had been assigned to perform the task, had already undertaken
several steps of the task. Second, we are concerned about certain aspects of the approach taken
by our colleagues in their opinion. In particular, we believe that they have gone too far in
retroactively supplying a rationale for the issuance of a citation when the Secretary has apparently
been unable to do so.
The Regulatory Background
The Secretary's "new task" training regulations for sand, stone, and gravel mining
operations are set forth in 30 C.F.R. § 46.7. Section 46.7(a) requires that a miner "who is
reassigned to a new task in which he or she has no previous work experience" must be provided
"training in the health and safety aspects of the task to be assigned ... before the miner performs
the new task." 30 C.F.R. § 46.7(a) (emphasis added). In lieu of the formal task training required
under this subsection, section 46.7(c) provides that an operator need not provide training to
miners who have received training in similar tasks or who have previous work experience in the
task and can demonstrate the necessary skills to perform the task in a safe manner. 30 C.F.R.
§ 46.7(c). Similarly, section 46.7(d) provides an alternative to the formal training in section
46.7(a) by allowing a miner to "practice under the close observation of a competent person, ... if
hazard recognition training specific to the assigned task is given before the miner performs the
task." 30 C.F.R. § 46.7(d).
Presentation of Evidence Before the Administrative Law Judge

In discussing the evidence before the judge and the manner in which he addressed it in his
opinion, we believe that it is important to recognize that the judge's disposition of the citation in
this proceeding has been complicated by the Secretary's varying and confusing bases for citing
Dacotah. The Secretary's litigation strategy at trial focused on her allegation that both Rohrbach
and Juopperi had not been trained in compliance with section 46.7(c). Following the accident

26 FMSHRC 473

involving both miners, MSHA had issued a single citation alleging, in relevant part, "The two
employees demonstrated that they were not properly tasked [sic] trained in safe work practices."
Citation No. 7919763. In her pretrial statement, the Secretary stated that Rohrbach and Juopperi
were not properly trained under section 46.7(c). S. Resp. to Prehearing Order at 1. In addition,
the Secretary alleged that Rohrbach did not know how to perform the task in a safe manner and
that he was not a "competent person." Id. at 2. Just prior to trial, counsel for the Secretary
moved to amend the citation to allege a violation of section 46.7, in general, stating "Reading
section 46.7 as a whole, it is clear that subsections (a), (b), and (c) must be construed and applied
together." S. Mot. to Amend Cit. at 2 (Jan. 10, 2001). See also Tr. 5 (Secretary's counsel
stating, "I don't believe this is changing the theory or the scope of the evidence or anything. I
mean, the heart of the allegation is in Subsection (c) ...").
The central factual underpinning of the Secretary's case at trial was MSHA investigator
Steichen's testimony that Rohrbach had not been adequately trained to change the hydraulic hose
because he did not know where the pressure relief valves were located. 24 FMSHRC at 785.
This testimony was based on a post-accident interview that Steichen had with Rohrbach. Id.
Steichen testified that this statement was the basis for his belief that Rohrbach had not been
properly trained. Tr. 76. Steichen, the Secretary's sole witness, further testified that he was not
concerned with whether Rohrbach was a "competent person" under section 46.7(d). Tr. 83.
Indeed, during the cross-examination of Steichen, the Secretary's counsel objected to a question
concerning whether Rohrbach was a "competent person" under section 46.7(d). Counsel noted
that there were other requirements of the subsection of the regulation, even assuming it could be
established that Rohrbach was "competent," and the judge sustained the Secretary's objection
that the question was "hypothetical." Tr. 84-87. At the conclusion of the testimony of Steichen,
the Secretary's only witness, the Secretary rested her case and did not present any further
witnesses or evidence concerning section 46.7(d).
During Dacotah' s presentation of its case, Rohrbach testified that he had indeed been
trained to perform the hydraulic hose repair and had successfully performed the same repair job
just four days prior to the accident. Tr. 110-12, 123. The judge credited Rohrbach' s trial
testimony over Steichen' s interview statement. 24 FMSHRC at 785. 1 Based on this and other
factual findings, the judge determined that the record supported a conclusion "that Mr. Rohrback
[sic] had been adequately trained in the task assigned to him on January 12, 2001, and he was
able to provide sufficient supervision to Mr. Juopperi." 24 FMSHRC at 786.
Once the Secretary failed to prove that the operator had not complied with section 46.7(c)
with regard to either Rohrbach or Juopperi, there was little left of her case in light of the citation,
pre-trial statements, and the limited evidence that she presented at trial. This is because the

1

In light of Rohrbach' s unequivocal testimony as to his own trairiing and experience in
changing the hose, we conclude that the judge did not merely "(give] more weight to evidence of
Rohrbach' s training and the corroborating testimony of his supervisors than to the inspector's
testimony." Slip op. at 4.
26 FMSHRC 474

Secretary's case as presented to the judge was premised on noncompliance with section 46.7(c).
Indeed, even in her brief to the Commission, the Secretary continues to argue that Juopperi was
not adequately trained under section 46.7(c). S. Br. at 9-13. In her post-hearing statement, the
Secretary directly argued for the first time that Juopperi had not been properly trained under
section 46.7(d) because he had not been trained by a "competent" person and because he had not
received hazard recognition training. S. Post-Hearing Statement of Position at 8-9.
Because the Secretary tried the case as a section 46.7(c) violation, the evidence presented
by the parties addressing section 46.7(d) was confused and arguably incomplete. Accordingly, it
is understandable, given the state of the record, that the judge's opinion focussed on compliance
with subsection (c) with regard to Rohrbach and did not address compliance with subsection (d)
with regard to Juopperi. The opinion states that Rohrbach "was adequately trained in the task
assigned to him on January 12, 2001, and he was able to provide sufficient supervision to Mr.
Juopperi" (24 FMSHRC at 786), but it is unclear precisely how that statement applies to
subsection (d) and its language allowing a miner to "practice under the close supervision of a
competent person." Because the Secretary eventually did raise the issue of the operator's
compliance with subsection (d) with regard to Juopperi, albeit at the eleventh hour, we believe
that the judge should have made more specific findings regarding the operator's compliance with
subsection (d) or explained why it was not possible to do so based on the record before him.
The Need for Additional Specific Findings on Remand
Because we conclude that the case should be remanded for additional findings, we
believe that the judge should also reexamine the question of whether Juopperi' s actions on
January 12 triggered the training requirements of section 46.7(a) as a threshold matter.
Subsection (a) provides that the new task training requirements apply to a miner "who is
reassigned to a new task in which he or she has no previous work experience." Thus, for a
violation to have occurred in this case, the operator must have actually "reassigned" Juopperi to
perform a new task. 2 However, the record in this case is ambiguous, at best, with regard to
whether the maintenance crew supervisor had assigned Juopperi the task of changing the
hydraulic hose so as to trigger section 46.7(a). Rather, as discussed below, the evidence appears
to indicate that the supervisor had assigned Rohrbach the task and that J uopperi was merely
assisting Rohrbach with part of the task on the day of the accident.
Rohrbach's testimony indicates that he observed a leak in the hydraulic hose and reported
it to his supervisor, and that the supervisor assigned Rohrbach to make the repair the next day 2

Our colleagues state at one point that the task of changing the hose "was also clearly
within the scope of Juopperi's job duties" (slip op. at 11) and imply that this is determinative in

concluding whether iuopperi was assigned to perform the task. However, section 46.7(a)
provides that the new task training regulations are triggered only when a miner is "reassigned" to
carry out the new task in question. It is not enough to trigger the regulations that a particular task
falls within the scope of the miner's general job duties.
26 FMSHRC 475

January 12. Tr. 126. Rohrbach did not testify that the supervisor also assigned Juopperi to make
the repair. After Rohrbach had already begun the repair on January 12, Juopperi happened to
appear after completing his routine maintenance tasks and offered to assist Rohrbach. 24
FMSHRC at 784; Tr. 126, 170-71. Rohrbach further testified that he had failed to release the
pressure from the hose, when he was doing preparatory work, before Juopperi's appearance. 3 24
FMSHRC at 784; Tr. 126, 144.
Juopperi's testimony likewise seems to indicate that it was Rohrbach who was
specifically assigned to change the hydraulic hose. Juopperi testified that, at the morning
meeting on January 12, the supervisor "mentioned to [Rohrbach] - how I remember that there is
a hose needs to be changed on the losche mill." Tr. 170-71. Juopperi's description of how he
became involved with assisting Rohrbach on January 12, when the accident occurred, is nearly
identical to his description of his involvement with Rohrbach on January 8, when he saw
Rohrbach changing another hydraulic hose and offered to help. Tr. 165. Juopperi never stated
that the supervisor assigned him-Juopperi - to change the hose.
In this regard, it is highly significant that the Secretary did not attempt to elicit testimony
from any witness indicating that Juopperi had been assigned the task of changing the hose.
Counsel for the Secretary's cross-examination of the maintenance crew supervisor dealt entirely
with Rohrbach, and counsel made no attempt to establish that Juopperi had been assigned the
task of changing the hose.4 Instead, the Secretary focussed throughout the trial on Rohrbach's
alleged lack of training and apparently assumed, without a clear basis in the record, that Juopperi
had also been assigned the task of changing the hose.

3

In light of these factual circumstances, the judge was clearly correct in concluding that
the accident was not "the result of inadequate training rather than carelessness or inattention."
24 FMSHRC at 786.
4

Indeed, in describing Juopperi's participation in changing the hose on January 12 during
cross-examination, the Secretary's counsel characterized it as follows: " ... you came in and
offered to help or said, do you need some help ...." Tr. 186. Similarly, during the crossexamination of Rohrbach, the Secretary's counsel acknowledged that Juopperi was merely
assisting Rohrbach in performing the task (Tr. 151):
Q.

Okay. What exactly-what did you think [Juopperi's] role was in this process?
Was he basically there just to assist you or what?

A.

Yes.

Q.

Okay. And is that the same for the January 8th incident?

A.

Yes.
26 FMSHRC 476

In light of the foregoing, the judge's statement that both Rohrbach and Juopperi "were
assigned" to replace the hydraulic hose, 24 FMSHRC at 784, should be revisited on remand.
Moreover, the judge should reconcile the statement with his statement that Juopperi was
"occupied" with other maintenance jobs before joining Rohrbach, who was in the process of
changing the hose. Id. On remand, the judge should determine whether Juopperi, in addition to
Rohrbach, had been assigned the task of replacing the hydraulic hose.
Moreover, on remand, the judge should address the issue of how the new task training
regulations should be applied under the specific circumstances of this case. The Secretary's Part
46 regulations do not address situations where, as in this case, a miner who is not assigned to
perform a particular task enters the scene and provides assistance to the miner assigned to and in
the process of performing a task. Such assistance could be as commonplace as steadying a ladder
or (as here) loosening a nut. Moreover, neither the preamble to the final rule nor any subsequent
guidance document appears to provide any relevant guidance concerning how the regulations
should be applied in such a situation. Indeed, the Secretary has not explained what constitutes
the "assignment of a task." Even assuming arguendo that a miner providing assistance to the
miner assigned to perform a task should receive some hazard recognition training, it is unclear
whether that training must address the entire task or only the discrete portion for which the miner
is providing assistance.5
Finally, we disagree with our colleagues regarding the Commission's role in this
proceeding. While Congress established the Commission to "develop a uniform and
comprehensive interpretation of the law ... [to] provide guidance to the Secretary in enforcing
the [Mine Act]," Hearing on the Nomination of Members of the Federal Mine Safety and Health
Review Comm 'n Before the Senate Comm. on Human Res., 95th Cong., 1 (1978), the Mine Act
imposes on the Secretary the burden of proving the violation alleged and imposes a substantial
evidence test for Commission review. Consolidation Coal Co., 11FMSHRC966, 973 (June
1989). See 30 U.S.C. § 823(d)(2). It is not the role of the Commission to retroactively supply a
rationale for the issuance of a citation when the Secretary has been unable to do so - particularly
in a case such as this where the circumstances giving rise to the citation are not addressed under
the explicit terms of the regulation, the preamble, or in other guidance to the mining community.

5

The only example of miner training pursuant to this regulation that has been provided
by the Secretary, S. Br. at 14-15 (quoting 64 Fed. Reg. at 53117-18), is the task training of a
miner newly assigned the job of loader operator. That circumstance is in no way analogous to
the present case involving a general repairman in a production facility who is primarily
responsible for a variety of general maintenance functions and who assists with more complex
repair jobs. See Tr. 163-64. Since the issuance of this regulation under Part 46, MSHA has
provided no guidance as to its meaning and application that we have been able to find. As
explained above, clarification by MSHA is particularly needed regarding the level of training
needed when a miner assists with only a portion of a job, such as steadying a ladder or loosening
a bolt.
26 FMSHRC 477

The Secretary's briefs in this case have not addressed the Secretary's interpretation of key
terms in any meaningful detail. For example, the Secretary's brief before the Commission argues
that there was no evidence that Juopperi was "practicing" the task in question, that Rohrbach was
providing "close observation" of what Juopperi was doing, or that Rohrbach was a "competent
person" without providing an interpretation of those terms, prior guidance concerning their
application, or a meaningfu.l discussion of the policy concerns and practical considerations
involved. S. Br. at 15-16.6 Similarly, the Secretary's brief makes no effort to explain what
constitutes a "task" or "change in task" in the context of this case.
Despite the Secretary's failure to explain her interpretation and application of key terms
or to have provided adequate guidance to the mining community, our colleagues have attempted
to fill the void by discussing the terms in their opinion. We believe that the better course of
action would be to remand the case to the judge for further findings as explained above and let
the burden of proving her case rest with the Secretary.7

6

We note that, although Dacotah' s brief challenged the legal and factual bases for these
assertions in its brief (D. Br. at 8-10), the Secretary chose not to file a reply brief and therefore
provided the Commission no additional assistance in addressing these issues.
7

We are not inclined to engage in an extensive analysis of section 46.7(d) in responding
to our colleagues for the reasons noted above. However, we note the lack of case authority or
principles of regul3:tory interpretation that would lead to the conclusion of a violation on the basis
of inadequate hazard recognition training (slip op. at 7) in the absence of showing the factual
predicate for application of sections 46.7(a) (assignment of a new task) and (d) (practice under
the close observation of a competent person). Simply put, a violation of section 46.7(d) cannot
be established by applying the hazard training requirement in isolation.
26 FMSHRC 478

Distribution
Donald P. Knudsen, Esq.
Gunderson, Palmer, Goodsell & Nelson, LLP
440 Mt. Rushmore Road
P.O. Box 8045
Rapid City, SD 57709
Cheryl C. Blair-K.ijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
llOO Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Administrative Law Judge Irwin Schroeder
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

26 FMSHRC 479

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

June 22, 2004

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

Docket No. WEVA 2004-91
A.C. No. 46-05295-13102

V.

EASTERN ASSOCIATED COAL
CORPORATION

BEFORE: Duffy, Chairman; Beatty, Jordan, Subolesk.i, and Young, Commissioners

ORDER

BY: Duffy, Chairman; Beatty, Suboleski, and Young, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On March 17, 2004, the Commission received from Eastern
Associated Coal Corporation ("Eastern") a motion made by counsel to reopen penalty
assessments that had become final orders of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
On November 12, 2003, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued proposed penalty assessments (A.C. No. 46-05295-13102) to
Eastern. In its motion, Eastern states that on September 9, 2003, a Notice of Contest of Proposed
Assessments was filed with the MSHA Civil Penalty Compliance Office. Mot. at 1. 1 Eastern
also states that on December 16, 2003, its attorney wrote a letter to the MSHA Payment Office

1

We note the discrepancy between the date of the proposed penalty assessment
(November 12, 2003) and the date that Eastern alleges it filed a notice of contest of the penalties
(September 9, 2003).
26 FMSHRC 480

stating that the payment made for seven citations was in error.2 Id.; Ex. A. In this letter, he
requested a refund for the penalty amount that had mistakenly been paid. Mot. at 1; Ex. A.
Eastern further states that the payments were mistakenly made due to a clerical error. Mot. at 2.
The Secretary states that she does not oppose Eastern' s request for relief.
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission orders under section IOS(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787.

2

In its motion, Eastern asks the Commission to reopen proceedings on eight referenced

citations. One of them, Citation No. 4192110, does not appear on the proposed penalty
assessment Eastern attached to its motion, nor is it referenced in the letter sent to MSHA by
Eastern's counsel. Records indicate that this citation has been vacated. Therefore, it is not
properly before us, and is not included within the scope of this order.
26FMSHRC481

Having reviewed Eastem' s motion, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Eastern ' s inadvertent payment of the penalties and whether relief from the final order should be
granted. If it is determined that such relief is appropriate, this case shall proceed pursuant te the
Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

\

r--··

\.,

'\'

''\
.......___ ·-·

/<ff)

~

Robert H. Beatty, Jr., Comlciss-ner

26 FMSHRC 482

..... __.)

Commissioner Jordan, dissenting:
I would deny the operator's request to reopen these proceedings. Although the proposed
assessments in this case were not issued until November 12, 2003, the operator, through counsel,
mistakenly asserts that it filed a contest of the proposed assessments with the MSHA Civil
Penalty Compliance Office on September 9, 2003. Mot.at 1. Moreover, in one of the
proceedings for which the operator requests relief, the underlying citation was vacated. Slip op.
at 2. In light of this confusing submission, I do not believe that the assertion from the operator's
attorneys that the penalties were paid in error warrants relief.

26 FMSHRC 483

Distribution
Julia K. Shreve, Esq.
Jackson Kelly, PlLC
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

26 FMSHRC 484

ADMINISTRATIVE LAW JUDGE DEQSIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
O FFICE OF ADMINIST RATIVE LAW JUDGES
601 New Jersey Avenue, N.W ., Suite 9500
Washington, DC 20001

June 3, 2004
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 2003-274
AC. No. 15-18015-03527 A

v.
CHARLES CLEVINGER, Employed by
LODESTAR ENERGY, INC.,
Respondent
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Bent Mountain

CIVIL PENALTY PROCEEDING
Docket No. KENT 2003-275
AC. No. 15-18015-03528 A

v.
DAVID R. COLEMAN, Employed by
LODESTAR ENERGY, INC.,
Respondent

Bent Mountain

DECISION
Appearances:

Thomas A Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee, for the Petitioner;
Mark E. Heath, Esq., Spilman Thomas & Battle, Pl.LC,
Charleston, West Virginia, for the Respondents.

Before:

Judge Feldman

These consolidated proceedings are brought by the Secretary under section llO(c) of the
Federal Mine Safety and Health Act of 1977 (the Act), 30 U .S.C. § 820(c), following a fatal truck
accident that occurred on October 3, 2001, at Lodestar Energy Inc.'s (Lodestar's) Bent Mountain
Mine. Section l lO(c) of the Act provides that a corporate agent "who knowingly authorized,
ordered or carried out ... [a] violation" committed by a corporate operator may be subject to
individual liability. f\.s a general proposition, a "knowing" violation under section llO(c)
involves aggravated conduct rather than ordinary negligence. Bethenergy Mines, Inc.,
14 FMSHRC 1232, 1245 (August 1992).

26 FMSHRC 485

These matters concern petitions for assessment of civil penalties filed by the Secretary
against the respondents Charles Clevinger and David R. Coleman who were supervisory
personnel at Lodestar's Bent Mountain facility. The Secretary alleges that Clevinger and
Coleman "knowingly" violated the provisions of section 77.1605(b) of the Secretary's mandatory
safety standards that require all loading and haulage mobile equipment to be equipped with
adequate brakes. 30 C.F.R. § 77.1605(b).
A hearing y;as conducted on February 11 and February 12, 2004, in Pikeville, Kentucky.
At the hearing, the Secretary moved to dismiss the case against Clevinger because the facts did
not support that he "knowingly" violated the cited safety standard, and because of Clevinger's
untimely death in November 2003. The Secretary's motion to dismiss was granted on the record.
(Tr. I, 8-12). 1 Accordingly, the civil penalty proceeding against Charles Clevinger in Docket No.
KENT 2003-274 was dismissed on the record. (Tr. I, 8-11).
With respect to the case against Coleman, the record was left open for the parties to
submit transcripts of the MSHA accident investigation interviews of David Coleman and
Elchaney Cline. Coleman filed his transcript interviews on February 23, 2004. The Secretary
provided the transcripts of Cline's interviews on March 5, 2004. (Tr. Il, 342, 353; Resp. Ex. 6,
Joint Ex. 1).
I. Statement of the Case

On October 3, 2001, Gary Blackburn was driving a Mack DM600 fuel truck down an
inclined haulage road in order to refuel mining equipment located in a coal producing pit. At
some point along the road, Blackburn lost control and jumped from the vehicle sustaining
injuries that resulted in his death the following day. Drivers normally relied on downshifting in
low gear to control their trucks while descending steep grades. After the accident, examination
of the service brakes revealed significant defects.
The accident investigation team initially believed that defective brakes were the primary
cause of the accident based on the erroneous belief that an employee, Elchaney Cline, had
complained to Coleman about the truck's brakes the night before the accident. 2 Although poor
brakes undoubtedly were a significant contributing factor, the evidence reflects the proximate
cause of the accident was a defective clutch that was adjusted only two hours before the fatal
accident. The clutch failure caused the truck to "freewheel" out of control. In this regard, at

1

The transcripts for February 11 and February 12 are cited as ''Tr. f' and ''Tr. Il,"
respectively.
2

In fact, Cline testified he communicated brake complaints to Coleman approximately
one month before the accident. (Tr. Il, 227-30). There is very little evidence of brake complaints
in the intervening weeks leading up to the accident.
26 FMSHRC 486

trial, MSHA conceded that it was implausible that Blackburn jumped while the truck was in low
gear and limited to a speed of ten miles per hour. (Tr. I, 250-61).
To prevail in a l lO(c) personal liability case, the Secretary must show that Coleman, as a
foreman in a position to protect employee safety, failed to act on the basis of information that
gave him knowledge or reason to know of the existence of a hazardous violation. Sec'y of La.bor
v. Richardson, 3 FMSHRC 8, 16 (January 1981), affd, 689 F.2d 632 (6th Cir. 1982). In addition,
the Secretary must demonstrate that Coleman's failure to act in response to the information
known to him constitutes aggravated conduct. Bethenergy, 14 FMSHRC at 1245.

In evaluating the evidence, the focus is on the nature and extent of Coleman's knowledge
of the brake conditions in the weeks preceding the October 3, 2001, accident. In this regard,
Coleman cannot be charged with knowledge of the significant brake defects that were revealed
by a detailed examination of the wreckage after the accident. As discussed herein, the Secretary
has failed to demonstrate that Coleman's failure to recognize the defective brake conditions
constituted aggravated conduct. 3 Consequently, the personal liability case brought by the
Secretary against Coleman must be dismissed.
II. Preliminary Findings of Fact
Lodestar's Bent Mountain Mine began production in D ecember 1998. Lodestar is in
bankruptcy and is not currently operating the mine. At the time of the accident in October 2001,
the mine facility consisted of three pits where highwall drills, a hydraulic shovel, front-end
loaders and rock trucks were used to produce approximately 45 tons of coal each day. 4 The mine
operated two ten-hour production shifts, seven days a week. Personnel were divided into two
crews designated as "A" and "B". The crews worked day shifts from 6:00 a.m. until 4:00 p.m.
and night shifts from 6:00 p.m. until 4:00 a.m. Each crew worked four consecutive days, and
then was off for five days. It was a common practice for employees to work on days that their
crew was scheduled to be off. Roger Bartley was the "B" crew day foreman. David Coleman
was the "B" crew night foreman. Don Holiday was the "A" crew day foreman and Doug Trimble
was the "A" crew night foreman. (Tr. II, 316-17). Bartley, Coleman, Holiday and Trimble
reported to Charles Clevinger who was the Mine Superintendent.

3

I note, parenthetically, Coleman has not been charged with failing to remove
the truck from service because it was defective in violation of section 77.404(a).
Section 77.1605(b), the standard Coleman is charged with violating, requires that mobile
equipment must have adequate brakes. Thus, the issue is whether Coleman's failure to recognize
the inadequacy of the truck's brakes constitutes a knowing violation of Section 77.1605(b).
4

Although not specifically cited, background information and investigation findings have
been taken from MSHA's accident investigation report released on December 12, 2001, and
admitted as Gov. Ex. 2.
26 FMSHRC 487

Johnny Huffman was the maintenance supervisor in charge of vehicle maintenance. He
supervised eight mechanics. (Tr. II, 290, 317-18). Huffman prepared the work schedule for the
vehicles, managed maintenance work and assigned work to the mechanics. (Tr. II, 318).
Huffman decided when brakes were to be serviced or replaced. (Tr. II, 269). If equipment
operators experienced mechanical problems, Lodestar's procedure required the operator to
inunediately notify either one of the mechanics directly, the mechanic's supervisor, or the shift
foreman, who would contact maintenance about the problem. (Tr. I, 82, 149, 156; Tr. II, 244,
267). Adjustments were sometimes made on equipment without the foreman's knowledge.
(Tr. II, 305).
Employees who experienced equipment problems were also required to indicate the
defective conditions on their time sheets. (Tr. I, 84; Tr. II, 270, 306-07). The time sheets have a
specific location where brake problems are to be noted. (Tr. I, 84; Gov. Exs. 45-48, 53). The
shift supervisor was responsible for ensuring that any problem noted on the time sheets was
brought to the attention of the maintenance department. (Tr. II, 157). If a vehicle had a
mechanical problem during Coleman's shift, Coleman's practice was to record the problem and
conununicate the problem directly to Huffman. (Tr. II, 352). Coleman had no direct
involvement with the repairs. (Tr. II, 352).
Two fuel trucks were used at the Bent Mountain facility, a red truck and a black truck.
(Tr. I, 52). The black truck, designated by Lodestar as Ff916, was a newer, larger Mack fuel
truck. The black truck was the primary vehicle used to fuel mine equipment. It was equipped
with a Jacob's Brake, also called a ''jake" brake. A Jacob's Brake uses compression from the
engine to slow the vehicle lessening the operator's reliance on the service brakes. (Tr. I, 54).
The red fuel truck, designated by Lodestar as Ffl54, was a spare truck that was used
when the black truck was being serviced or repaired. The red truck was a 1975 Mack Model DM
600, ten wheel vehicle with a 3,000 gallon capacity fuel tank. The red truck was not equipped
with a Jacob's Brake. The brakes on the red truck were last replaced in April 2001,
approximately six months before the accident. (Tr. II, 324, 351). The red truck had five high
gears and five low gears that were engaged by using two shift levers. (Tr. I, 58). The main shift
lever changed the gears from one to five and the auxiliary shift lever set the gear in high, low or
neutral. Operators typically drove the red truck down steep hills in second gear (low), which
limited the vehicle to approximately five to ten miles per hour. (Tr. I, 96). When in second gear,
drivers normally did not have to use the service brakes to control the truck. (Tr. I, 111-12, 114,
118-19, 127).
a. The Events of October 3, 2003
The victim, Gary Blackburn, was an experienced truck driver. (Tr. I, 115, 255). On the
day of the accident on October 3, 2001, Blackburn began work at 6:00 a.m. Blackburn normally
worked as a rock truck driver on the "A" crew and he was not scheduled to work on this day.
However, he decided to work an off shift and he was assigned to operate the red fuel truck.
26 FMSHRC 488

Ff154 was being used because the.black fuel truck was being repaired. Blackbum filled the
truck with approximately 3000 gallons of diesel fuel and proceeded to a parking area for mining
equipment and private vehicles known as the #3 Knob.
Blackburn drove to the parking area to meet Mark Hamilton, a day shift mechanic.
Hamilton had been directed by Johnny Huffman, the maintenance supervisor, to adjust the Fr154
clutch after Elchaney Cline, who had operated the truck the previous shift, reported the clutch
was slipping. (Tr. II, 262-64). After the adjustment was made, Hamilton asked Blackburn to
apply the park brake and put the truck in gear to determine if the clutch would hold. (Tr. II, 263,
266). At that time, the brakes were sufficient to hold the truck until the engine almost stalled.
(Tr. II, 265). Hamilton testified that Blackbum did not report any brake problem to him. (Tr. II,
265, 268).
Consistent with Hamilton's testimony, Bartley testified that Hamilton and Blackburn
tested the clutch on the morning of October 3, 2001, by revving the engine while engaging the
brakes. Bartley stated that, after the adjustment was made, Blackburn drove the truck around
the parking lot to test the truck. Blackbum gave Bartley the thumbs-up sign indicating the truck
was operating properly. Bartley testified Blackburn did not report any problems with the truck's
brakes. (Tr. II, 288-89).
At approximately 10:40 a.m., Blackburn began descending the haulage road leading to
the Winifrede Coal Seam to fuel and service the mining equipment in the pit. The road was
composed of dry, compacted soil and rock. It was approximately 27 feet wide and 1,800 feet
long, with a grade varying from 8 percent to 16 percent. This haulage road is commonly known
as the "hell hole." (Tr. I, 54-58; Tr. II, 224). A public highway with a 6 percent grade is
considered to be a steep grade requiring trucks to use low gear. (Tr. II, 213). On the day of the
accident, the sky was clear and it had not rained for several days. At some point along the road,
Blackbum apparently lost control of the fuel truck and jumped from the vehicle, landing on the
left side of the road near the berm. The unoccupied truck continued traveling for an additional
180 feet and struck a larger Caterpillar rock truck parked in a flat area off of the left side of the
haulage road. The impact caused extensive damage to the fuel truck. (Gov. Ex. 19). The fuel
truck wreckage was found with the main shift lever in fourth gear and the auxiliary shift lever in
neutral. The effect was a neutralized transmission that could result in a runaway or
"freewheeling" truck. (Tr. II, 182-83, 206-08, 222-23).
At 10:50 a.m., a contract coal truck driver observed Blackburn lying on the left side of the
road, approximately 1600 feet from the top of the slope. Bartley was notified and he
immediately requested an ambulance. Blackburn was transported up the haulage road by
ambulance to an area suitable for helicopter landings. Blackbum ultimately was air-lifted to a
hospital where he died the following day of head injuries. There were no eyewitnesses to the
accident.

26 FMSHRC 489

b. The Accident Investigation
The Secretary's principal witness in this proceeding is Elchaney Cline. Cline was a utility
man who operated a variety of mine equipment. Cline, whose testimony will be discussed in
detail below, worked on the "B" crew supervised by Coleman. Cline drove the red Ff154 fuel
truck during the shift immediately preceding Blackburn's shift for 71/z hours during the evening
of October 2, 2001, and into the early morning hours of October 3, 2001. Although Coleman
overheard Cline complain on the CB radio about the clutch slipping during the shift that ended
on the morning of October 3, 2001, Cline did not complain about the service brakes.
Cline provided equivocal information to MSHA investigators shortly after the accident
about the nature and timing of relevant brake complaints he communicated to Coleman prior to
the accident. 5 Cline was interviewed by MSHA on October 4, 2001, at which time he described
the condition of the brakes stating:
And I know when you get it out of gear, you couldn't stop the truck going down
with a load of fuel on it. The brakes, I mean it had good brakes on level ground
but with a load of fuel pushing you down in there, ain't know way you could stop
it ..... you had good brakes but you just couldn't hold them. You just had to
pump them every now and then and you couldn't get it out of gear, you know ....
I suspect that what it was doing , you know, cause I had a whole load of fuel
of it. And I didn't want to get them hot, you know, I just pump, push them, go on,
let off ....
(Joint Ex. 1, pp 25, 27).
Cline has provided varying accounts concerning his Ff154 brake complaints.
On October 4, 2001, Cline told MSHA he complained to Coleman about the brakes "just about
every time I [got] in the truck" during the month preceding the accident. (Joint Ex. 1, p. 11).
On October 18, 2001, Cline again was interviewed by MSHA investigators. This time Cline,
explaining that the red truck was used infrequently, stated that he last complained about the brakes
to maintenance supervisor Huffman and Coleman "a month or two before the accident." At trial,
Cline testified the only time he complained to Coleman about the red fuel truck's brakes was
"three weeks to a month before the accident." (Tr. I, 67-68).
MSHA examined the brakes on the wreckage on October 5, 2001. The brakes were
determined to be approximately 30 percent effective as a significant portion of the brake lining
surfaces were not contacting the brake drums. (Tr. II, 19-20). On October 6, 2001, MSHA
examined the differential, power divider and rear axles for excessive wear or broken gears. The
clutch friction plate pads were worn down to the rivets. Several of the rivets were also worn. The

5

The Secretary concedes Cline's investigation statements and testimony "often appeared
inconsistent and, sometimes, contradictory." (Sec'y Br. at 35).
26 FMSHRC 490

friction pads and the clutch plate were bluish in color, indicating overheating from clutch
slippage. The accident investigation noted that the clutch had been readjusted shortly before the
accident based on an operator's complaint that the clutch was slipping.
On October 22, 2001, MSHA issued 104(d)(l) Citation No. 7378492 to Lodestar citing a
violation of section 77.1605(b) for inadequate brakes attributable to Lodestar's unwarrantable
failure. 6 The cited violation in Citation No. 7378492 is the subject of this proceeding against
Coleman. (Gov. Ex. 1). On October 22, 2001, Lodestar also was issued 104(a) Citation No.
7378493, not a subject of this proceeding, for its failure to maintain the red fuel truck in safe
operating condition. The worn friction plate pads bluish in color and bald right drive axle tires
were cited as hazardous conditions. The negligence attributed to Lodestar was moderate. (Gov.
Ex. 6).
MSHA's accident investigation concluded:
The factor that can conclusively be associated with the accident is the condition of
the truck's braking system. Even if the drive train became disengaged, or an
effective loss of steering occurred, the braking system on the truck should have
been able to stop the vehicle. The investigation revealed that all six brakes on the
truck had maintenance defects that resulted in severely reduced braking capability.
(Gov. Ex. 2, p. 11).
In evaluating culpability, the investigation report's closing statement noted that
"[i]formation obtained during the investigation indicates that mine management was aware that
the brakes would not effectively stop the loaded vehicle on the grade where it was required to
travel." (Gov. Ex. 2, p. 12).
c. 104(d)(l) Citation No. 7378492
Coleman has been charged with "knowingly" violating the mandatory safety standard in
section 77.1605(b) that requires mobile equipment to be equipped with adequate brakes. The
section 77.1605(b) violation was the subject of 104(d)(l) Citation No. 7378492 issued to Lodestar
on October 22, 2001. Citation No. 7378492 states:
Adequate brakes were not provided for the Mack DM600 fuel truck (Company No.
Ff154) used to supply fuel to mobile mining equipment at the mine. This
condition contributed to a fatal haulage accident which occurred on the Winifrede

6 A mine operator's conduct is unwarrantable when it engages in aggravated conduct

constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997,
2001(December 1987).
26 FMSHRC 491

Coal Seam access road on 10/03/2001. During the accident investigation, the
following deficiencies in the truck' s braking system were found:
1) Right Front Steering Axle Brake -The pushrod stroke was excessive. Both
brake lining wear surfaces were coated with grease across the width of the lining.
The drum was coated with a film of grease. The return spring was missing.
2) Left Front Steering Axle Brake - Both brake linings and the drum were coated
with grease in three separate bands approximately 1.5 inches wide each.
3) Right Forward Drive Axle Brake - The pushrod stroke was excessive. The
service brake chamber leaked at a rate of 15 psi per minute.
4) Right Rear Drive Axle Brake - The pushrod stroke was excessive. The S-cam
roller on the forward brake shoe was missing. The rear brake lining was worn to
the point that the rivets holding the lining were also worn. The upper half of the
rear lining was loose. The lower portion of the forward lining was coated with
grease across the width of the wear smface.
5) Left Forward Drive Axle Brake - The pushrod stroke was excessive.
Approximately one half of the brake lining surface was coated with mud,
indicating that only half of the lining was making contact with the drum.
The spring applied parking brake was not functional.
6) Left Rear Drive Axle Brake -The pushrod stroke was excessive.
Approximately one half of the brake lining and drum were coated with grease. The
lock ring that holds the slack adjuster onto the S-Cam shaft was missing.
The accident investigation revealed that all six of the fuel truck's brakes had
maintenance defects that significantly reduced the overall braking capability of the
truck. Information obtained during the investigation indicates that mine
management was aware that the brakes would not effectively stop the loaded
vehicle on the grade where it was required to travel.
(Gov. Ex. 1).
The Secretary subsequently charged Clevinger and Coleman, as agents of Lodestar, with
"knowingly authorizing, ordering or carrying out" the violation of section 77.1605(b) cited in
Citation No 7378492.
Lodestar has.filed for bankruptcy protection. Given Lodestar's bankruptcy filing, on

26 FMSHRC 492

May 22, 2003, Judge Melick entered an Order in Docket No. KENT 2002-292 directing Lodestar
to pay the proposed civil penalty for Citation No. 7378492 after Lodestar withdrew its contest and
request for a hearing.
As further discussed below, at trial I declined to adopt the Secretary's assertion that
collateral estoppel prevented Coleman from challenging 104(d)(l) Citation No. 7378492.
However, during the hearing, Coleman, through counsel, stipulated to the fact of the section
77.1605(b) violation and its significant and substantial (S&S) designation. Coleman declined to
stipulate to the unwarrantable failure. (Tr. II, 70-71).
d. Events Preceding the October 3. 2001. Accident
i. Elchaney Cline
As noted, Elchaney Cline was a utility man who operated a variety of mine equipment.
Cline was a night shift "B" crew member who reported to David Coleman. He characterized
Coleman as a foreman who was interested in safety. (Tr. I, 93). Cline testified that he
occasionally drove the red fuel truck when the black fuel truck was out of service. In the weeks
preceding the accident, Cline testified that he drove the red fuel truck on September 13,
September 14, September 15 and September 21, 2001, and on October 2, 2001. Lodestar's policy
required equipment operators to note equipment defects on their daily time sheets. Cline's daily
time sheets reflect he operated Ff154 for 81/2 hours on September 13, 2001, 4~ hours on
September 14, 2001, 2 hours on September 15, 2001, 3 hours on September 21, 2001, and 7Y2
hours on October 2, 2001. Cline operated FT154 for a total of 25~ hours on these days.
However, he did not enter any brake defects on his time sheets. (Gov. Exs. 45, 46, 47, 53, 56).
Cline described the brakes as spongy. Cline described FT154 as "junk." (Tr. I, 76). With
respect to the brakes, Cline testified:
The foot brakes, you'd push it and you'd have good brakes at first, and when you
tried to slow down more you wouldn't have none. They was (sic) gone, just like a
sponge.
(Tr. I, 63).
Cline initially testified, "I told Dave Coleman and Johnny Huffman that the brakes wasn't
(sic) working right .... three weeks to a month before the accident." (Tr. I, 67). Cline
subsequently testified he told Coleman and Huffman twice about a month before the accident.
(Tr. I, 69-70).
On cross-examination, Cline further clarified the only brake complaint he communicated
to Coleman prior to the accident:

26 FMSHRC 493

Q. Now let's go back to the month before. [What] I understood from what you told
me in yesterday's deposition is the first person you told was Mr. Huffman?
A. Yes.

Q. That the brakes needed worked on, they were weak, or how did you refer to it,
they needed looked at?
A. Yes.

Q. And [Huffman] was head of maintenance for this Lodestar job?
A. Yes.

Q. And that after you reported it to Mr. Huffman, I think you told me, what, about
ten minutes or so [you] saw Mr. Coleman?
A. Yes, I got in the truck to go around the hill and met Dave coming and I told
him.

Q. And what you told Mr. Coleman was, "The brakes need to be looked at. I've
just told Mr. Huffman about it," correct?
A. I never told him I talked to Johnny. I said, ''The brakes need to be fixed, they
ain't right."

Q. (Examining deposition transcript) Do you remember yesterday that when you
had your conversation with Mr. Coleman - A. Yes.

Q. - - He asked you what Johnny Huffman had told you?
A. Yes.

Q. So you did have a discussion with Mr. Coleman on the fact that you just talked
to Mr. Huffman about brakes?
A. Yes.

Q. Right? You remember that now, right?
A. Yes.
26 FMSHRC 494

Q. Okay. There was a discussion about a switch on [the] pedal and some other
things, wasn't there?
A. Yes.
Q. So what happens here is you talk to Mr. Huffman first, the chief of
maintenance, right?
A. Yes.

Q. Then you say around the comer or around the hill when you run into
Mr. Coleman?
A. Yes.
Q. You tell him that you want the brakes looked at and you have been talking to
Mr. Huffman, the guy that' s in charge of maintenance?
A. Yes.
Q. Now, the procedure up at this job is that if you needed something fixed you just
went right to a mechanic, didn' t you?
A. Yes.

Q. You didn' t wait for a foreman to authorize it or anything else, you could call a
mechanic over to get anything that you wanted done, basically?
A. We'd have to get a hold of Dave, yes.

Q. But you also at times went right to the mechanic, didn't you?
A. Yes.
Q. Now, you also told me yesterday that you had your conversation with
Mr. Huffman first and then with Mr. Coleman, but Mr. Coleman very well could
have believed that this was being handled because you had addressed it with the
head of maintenance of the mine?
A. Yes.

Q. And you told me yesterday you had no further conversations with Mr. Coleman
about any brake issues other than that incident about a month before?

26 FMSHRC 495

A. Yes.
(Tr. I, 80-83).
Cline testified that the Ff154 would "barely crawl" down the steep decline at no more
than five miles per hour if the vehicle was downshifted in first gear. (Tr I, 95). Downshifting in
second gear limited the vehicle to five to ten miles per hour. (Tr. I, 96). Operators relied on
downshifting rather than the service brakes when descending the haulage road. (Tr I, 95-96).
Cline never expressed concern that the red fuel truck could not safely traverse the steep grade on
the haulage road. Cline drove down the "hell hole" hill in second and low with a full load of fuel
on October 2, 2001, and did not report any brake complaints. (Tr. I, 73).
Cline testified that the clutch on the red fuel truck was slipping on the evening of
October 2, 2001. He informed Coleman of the clutch problem over the CB radio. Coleman
advised Cline that he would take care of it. Cline ultimately learned that the clutch was adjusted
the following morning shortly before Blackburn's accident. (Tr. I, 80).
Finally, Cline characterized Coleman as a foreman who was interested in safety and one
who would not hesitate to remove a defective vehicle from service. (Tr. I, 93). While not
dispositive, it is noteworthy that Cline does not believe that MSHA should have filed a case
against Coleman because Coleman was not the supervisory mechanic responsible for repairs. (Tr.
I, 93, 97).

ii. Craig Anderson
Craig Anderson was employed at Bent Mountain as a grease truck operator. Occasionally
he would work overtime operating a rock truck or a fuel truck. Anderson was driving the red fuel
truck on September 15, 2001. Anderson testified that his truck rolled backwards when he
attempted to stop on a hill. (Tr. I, 140). Anderson reported the incident to the mechanic, Michael
Hayden (also known as "Rodriguez") and to Coleman. (Tr. I, 141-42). Anderson drove the red
truck without incident on the following day. The truck stopped on level ground. Anderson could
not tell whether the brakes had been adjusted. (Tr. I, 143). Anderson testified that mechanics
routinely repaired equipment upon notification by mine personnel of an equipment problem. (Tr.
I, 149). Anderson stated he subsequently drove the red truck on or about September 27, 2001,
without further incident. (Tr. I, 145). Anderson did not communicate any other red truck brake
complaints after September 15, 2001.
iii. Roy Collins
Roy Collins ·was a dozer operator who operated fuel trucks between shifts to fuel mine
equipment. Collins operated the red fuel truck the day before Blackburn's accident. (Tr. I, 106,
111). Collins testified he did not experience any problems driving the red truck down the haulage
26 FMSHRC 496

road because he kept the truck in second low gear. (Tr. I, 111-12, 114, 118-19, 127). Collins
testified that it was standard operating procedure to drive fuel trucks down steep grades in low
gear. Collins primarily was concerned with the clutch on the red truck. (Tr. I, 113). If the clutch
failed Collins opined that he could lose control because the brakes were weak. (Tr L 128-29).
Although Collins characterized the brakes as weak, Collins had no difficulty stopping the FT154
on level ground. (Tr. I, 118-19, 128-29). Collins did not report any brake or clutch problems on
his time sheets because he believed it was a waste of time because "(t]hey wouldn't fix nothing."
(Tr. I, 116). Collins did not tell Coleman or a mechanic that the brakes or the clutch on the red
truck needed repair. (Vol I, 117, 129). While Collins' testimony supports the credibility of Cline
and Anderson, his opinions concerning the operational condition of FT154 are not material as he
admittedly did not communicate his concerns to Coleman.
iv. Henry Hatcher
Henry Hatcher was employed as a utility man at Lodestar's mine. Hatcher testified that he
operated the red fuel truck from September 26 through September 30, 2001. During that period
he drove the fuel truck down the subject haulage road on several occasions. He downshifted in
first gear when the fuel truck was fully loaded. If it was not full, he used second gear. During this
period he did not experience any difficulty with the brakes. (Tr. II, 273-83).

v. David Carl Wright
David Carl Wright was employed by Lodestar as a grader, fueler and mechanic. On the
day before the accident, Wright drove the red truck for approximately 4 hours during which time
he drove down the haulage road where the accident occurred. (Tr. II, 149, 154). He was able to
stop the truck without any brake problems. (Tr. II, 152).
On the morning of October 3, 2001, Wright was working as a mechanic in the parking lot
area. He observed Blackbum drive the red fuel truck into the parking area where he met Mark
Hamilton. Wright overheard Blackburn tell Hamilton that the clutch was slipping. Wright
observed Hamilton adjust the clutch. After the adjustment, Hamilton instructed Blackburn to rev
the engine while engaging the brake to determine if the clutch held. He did not hear Blackburn
communicate any brake related complaints. (Tr. II, 158-60).
vi. Mark Hamilton
On October 3, 2001, Mark Hamilton was working as a mechanic at Lodestar's Bent
Mountain mine. At approximately 8:00 a.m., Hamilton was working in the parking area loading
crib blocks in preparation for working on a truck. Blackburn drove up and said Johhny Huffman
wanted Hamilton to adjust the clutch on Ff154 because it was slipping. Hamilton tightened the
pressure on the clutch plate to improve its contact with the disc. After Hamilton adjusted the
clutch, he asked Blackburn to put the truck in gear while applying the parking brake to see if the
26 FMSHRC 497

clutch would over-pull the brakes. The cab shook and the engine almost stalled but the clutch did
not slip. (Tr. II, 243). Blackbum expressed his satisfaction with the clutch and drove away.
Hamilton saw Blackbum a short time later at which time Blackburn had no complaints. Hamilton
testified Blackbum did not complain about the brakes on October 3, 2001. (Tr. II, 263-68).
vii. Roger Bartley
On October 3, 2001, Roger Bartley was the day shift foreman for the "B" crew that began
after Coleman's evening shift. (Tr. II, 284). At approximately 5:30 a.m. on October 3, 2001,
Bartley heard Cline on the CB radio complaining about clutch problems on the red fuel truck.
Cline's complaint was also overheard by Coleman. Bartley testified that Cline's complaint was
limited to the clutch and that it did not concern brake problems. (Tr. II, 286-87, 289, 303). As a
result of Cline's complaint, Hamilton adjusted the clutch. Bartley was present when the clutch
was adjusted. Consistent with Hamilton's testimony, Bartley described how Hamilton tested the
clutch by ensuring that it would not override the brake on acceleration. (Tr. II, 288-89).
Bartley testified that he was not aware of any brake complaints by Cline in the month
preceding the accident. Nor did Bartley know of any other operator complaints about the red fuel
truck's brakes. (Tr. II, 304).
Bartley testified that Coleman routinely gave Bartley lists of repairs that were required at
the conclusion of Coleman's shift. (Tr. II, 289, 324-25). If service was required, Bartley would
give the information to Huffman who would schedule the work to be done. (Tr. II, 289). Bartley
also reviewed the time sheets to determine what repairs were necessary. (Tr. 368).
viii. David Coleman
David Coleman has been employed in the mining industry since 1974. He began working
at the Bent Mountain Mine in January 2000. (Tr. II, 310, 313). He was foreman of the
"B" crew night shift and supervised approximately 20 employees. (Tr. II, 313). Coleman usually
worked from approximately 4:00 p.m. until 5:00 a.m. (Tr. II, 319). Coleman testified that he was
safety conscious and that he had daily safety meetings with his crew. If equipment needed repair
it was immediately removed from service. (Tr. II, 314). The red truck's brakes had been replaced
in April 2001. (Tr. II, 351).
Sometime during the October 2, 2001 , night shift, Coleman recalled Cline complaining
about the red fuel truck's clutch slipping on the CB radio. Upon Bartley's arrival at the mine at
approximately 5:00 a.m. on October 3, 2001, Coleman told Bartley that the clutch required
service. (Tr. II, 322). Bartley testified he also heard Cline complain about the clutch on the CB
radio. (Tr. II, 286). The clutch was adjusted by Hamilton at approximately 8:00 a.m., after
Coleman had left the mine site.

26 FMSHRC 498

During September 2001 the back-up red fuel truck was used instead of the black fuel truck
which was undergoing repairs. Coleman denied that Cline had told him about brake problems
during this period. (Tr. II, 325, 328, 346-47, 350). Coleman claims he initially learned of Cline' s
brake complaint assertion during MSHA' s accident investigation. (Tr. II, 326). Coleman also
could not recall Anderson complaining about the red fuel truck' s brakes during September 2001.
(Tr. II, 345). There is no evidence of any relevant brake problems noted on time sheets during this
period by Cline, Anderson or any other red fuel truck operator.

III. Further Findings and Conclusions
a. Collateral Estoppel
The Secretary contends that collateral estoppel applies to Judge Melick's May 22, 2003,
Decision and Order Directing Payment for 104(d)(l) Citation No. 7378492 in the civil penalty
case involving Lodestar in Docket No. KENT 2002-292. The question of collateral estoppel is
moot with respect to the fact of the violation of section 77.1605(b) and the significant and
substantial designation as Coleman has stipulated to these elements of the citation.
With respect to the issue of unwarrantable failure, it is clear that collateral estoppel does
not apply. Identity of issue is a fundamental element that must be satisfied before collateral
estoppel may be applied. Thus, "a judgement on the merits in a prior suit may preclude
relitigation in a subsequent suit of any issues actually litigated and determined in the
prior suit...." Bethenergy Mines, Inc., 14 FMSHRC 17, 26 (Jan. 1992) (citations omitted).
As an initial matter, Judge Melick's Order Directing Payment is not a judgement on the
merits. Moreover, identity of issue is not present as the question of a mine operator's
unwarrantable failure is markedly different from the question of whether an agent committed a
"knowing" violation. An unwarrantable failure finding is based on aggravated conduct
attributable to the mine operator. A knowing violation requires a showing of aggravated conduct
on the part of an individual corporate agent. Surely, an unwarrantable failure finding against a
company is not a determination that all agents of the mine operator are subject to personal
liability.
Although Lodestar' s unwarrantability has not been a subject of this litigation, the
Secretary need not demonstrate unwarrantability to prevail in a 1 lO(c) proceeding. She need only
demonstrate that an underlying violation of a safety standard was committed by a mine operator,
and that an agent of the operator "knowingly authorized, ordered or carried out" the violation.
The cited standard requires mobile equipment to be equipped with adequate brakes. Faced with
the self-evident nature of the red fuel truck's brake defects, Coleman has stipulated to the fact of
the occurrence of the_violation. The focus shifts to whether the violation was "knowingly"
committed by Coleman.

26 FMSHRC 499

b. Application of Statutory Provisions and Pertinent Case Law
Section l lO(c) of the Mine Act provides:
Whenever a corporate operator violates a mandatory health or safety standard ...
any ... agent of such corporation who knowingly authorized, ordered or carried
out such violation ... shall be subject to the same civil penalties [as the corporate
operator] ....
Simply put, a "knowing" violation under section llO(c) involves aggravated conduct, not
ordinary negligence. Bethenergy, 14 FMSHRC at 1245. Unfortunately, the indicia necessary to
support a finding that a corporate agent acted "knowingly" is difficult to articulate. What is clear
is that individuals charged with 1 lO(c) liability should be judged based on their individual
knowledge and actions not on the collective actions or inferred knowledge of the company.
The operative term "knowingly" has been extensively discussed by the Commission and
the courts. The Commission discussed the criteria for determining if there is personal liability
under section 110(c) of the Mine Act in Lefarge Construction Materials, 20 FMSHRC 1140
(October 1998). The Commission stated:
The proper inquiry for determining liability under section 110(c) is whether the
corporate agent knew or had reason to know of a violative condition. Kenny
Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 F.2d (6th
Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman United Coal
Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997). To establish
section 1 lO(c) liability, the Secretary must prove only that an individual knowingly
acted, not that the individual knowingly violated the law. Warren Steen Constr.
Inc., 14 FMSHRC 1125, 1131(July1992) (citing United States v. Int'l Minerals &
Chem. Corp., 402 U.S. 558 (1971)). An individual acts knowingly where he is "in
a position to protect employee safety and health [and] fails to act on the basis of
information that gives him knowledge or reason to know of the existence of a
violative condition." Kenny Richardson, 3 FMSHRC at 16.
20 FMSHRC at 1148 (emphasis added).
Similarly, in Roy Glen, 6 FMSHRC 1583 (July 1984), the Commission stated:
We hold that a corporate agent in a position to protect employee safety and health
has acted "knowingly" in violation of section llO(c) when, based upon facts
available to him, he either knew or had reason to know that a violative condition
or conduct would occur, but failed to take appropriate preventative steps.

26 FMSHRC 500

6 FMSHRC at 1586 (emphasis added).
In Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d. (D.C. Cir. 1997), the Court
addressed the issue of individual knowledge:
... the meaning of "knowledge" depends upon context and that a continuum of
meaning stretches from "constructive knowledge" to "actual knowledge" with
various gradations between ... . under the Commodity Exchange Act, [an]
individual "knowingly" induced a violation if he had "actual or constructive
knowledge of the core activities that constitute the violation at issue and
allowed them to continue."
108 F.3d at 363 (emphasis added) citing JCC v. CFTC, 63 F.3d 1557, 1567-68 (11lhCir. 1995).
c. The Nature and Extent of Coleman's Knowledge
As a threshold matter, given Blackburn's fatality, and MSHA's responsibility in
determining the cause of the accident, it is not surprising that Coleman, a focus of the
investigation, asserts that he cannot recall the reported brake complaints by Cline and Anderson.
Without question, examination of the wreckage revealed significant defects in the condition of the
service brakes that rendered them ineffective. Thus, the reported brake complaints by Cline and
Anderson are corroborated by the post-accident analysis of the brake condition. Consequently, the
testimony of Cline and Anderson is credible.
Resolving whether Coleman's failure to recognize the hazardous condition of the service
brakes constitutes aggravated conduct requires viewing Coleman's conduct in context. In other
words, Coleman must be judged based on whether he knew or should have known of the
core elements (the nature and extent) of the violation based on the facts available to him.
Obviously, no one had actual knowledge of the specific brake defects that were disclosed
by examination of the wreckage. However, a lack of actual knowledge is not a defense to 110(c)
liability. Kenny Richardson, 3 FMSHRC at 16. As the Commission has stated, "[t]o knowingly
ignore that work will be performed in violation of an applicable standard would be to reward a
see-no-evil approach to mine safety ..." Roy Glenn, 6 FMSHRC at 1586. Thus, the analysis
shifts to whether Coleman had reason to know of the serious brake defects and whether he ignored
the need for service to be performed.
Turning to the nature of Coleman's knowledge, approximately one month prior to
Blackburn's accident, Cline told Coleman the brakes were "spongy." Cline admits that when he
complained to Cole~an, he told Coleman that he had already informed Johnny Huffman, who was
the vehicle maintenance supervisor, that the brakes needed service. (Tr. I, 80-83). Company
policy permitted equipment operators to communicate directly with the mechanics if equipment
needed service. Under such circumstances service would be performed.
26FMSHR.C 501

Cline's testimony reflects he communicated no further brake complaints during the
intervening three to four weeks prior to the accident. In fact, although he complained about the
clutch the night before the accident, Cline did not express any brake concerns. Although Cline
continued to operate the red fuel truck after his only brake complaint to Coleman, Cline did not
report any subsequent brake complaints on his time sheets. In the absence of subsequent verbal or
recorded complaints by Cline, it was not unreasonable for Coleman to conclude that the brakes
had been adjusted by Huffman and that Cline's concerns had been alleviated.
Given the grades on which the vehicle traveled, Coleman's failure to confirm that the
brakes had been serviced in response to Cline's complaint may constitute ordinary negligence.
When viewed in context, however, Coleman's conduct was not so egregious, unjustifiable or
inexcusable to warrant the conclusion that he ignored the potential hazard by adopting a
see-no-evil approach. Consequently, Coleman's failure to take further action following Cline's
complaint does not constitute aggravated conduct.
On or about September 15, 2001, Anderson attempted to stop on a hill and rolled
backwards. Like Cline, consistent with company policy, Anderson reported the incident directly
to mechanic Michael Hayden as well as to Coleman. Anderson drove the red truck without
incident on the following day. Anderson did not know whether the brakes had been adjusted.
Anderson subsequently drove the red truck on or about September 27, 2001, without further
incident. Whether, the brakes were adjusted after Anderson's complaint is unclear. What is
known is that Anderson did not communicate any additional relevant brake complaints after
September 15, 2001. Moreover, time sheets reflect the red FT154 fuel truck was operated by
Anderson for ten hours and Cline for two hours on September 15, 2001. Neither Anderson nor
Cline noted any brake complaints on their time sheet. (Gov. Ex. 47). In the absence of
subsequent complaints by Anderson or Cline evidencing continuing brake concerns, Coleman's
failure to contact Hayden following Anderson's complaint to determine if the brakes were
serviced does not constitute a reckless disregard of the potential hazard and does not otherwise
evidence aggravated conduct.
Thus, without Coleman having the benefit of hindsight, the Secretary has failed to
demonstrate that Coleman's failure to act was based on "self-induced ignorance" or a "blind
acquiescence" in the face of apparent unsafe working conditions. Roy Glenn, 6 FMSHRC at
1587. Consequently, on balance, the Secretary has not shown that Coleman "knowingly
authorized, ordered or carried out" a violation of section 77. l 605(b) because the red fuel truck
was not equipped with adequate brakes. Thus, the 110(c) case against David Coleman shall be
dismissed.
As a final matter, as previously noted, 1 lO(c) liability should be judged based on an
individual's knowledge and actions not on the collective actions of the mine operator. While the
issue of unwarrantable failure goes beyond the scope of this proceeding, the Secretary fails to
recognize the distinction between a mine operator's unwarrantable failure and the aggravated
conduct necessary to impose personal liability. Surely, an unwarrantable failure determination is
26 FMSHRC 502

not a finding that all agents of the mine operator are subject to 110(c) personal liability. Coleman
was a foreman not a supervisory mechanic. Yet the Secretary submits that both "Lodestar and
Coleman had a duty to perform periodic and regular inspections on the red fuel truck ..." (Sec'y
Br. at 35). The evidence fails to support the Secretary's claim that Coleman was responsible for
implementing or carrying out Lodestar's service maintenance program. Nor has Coleman been
charged with a failure to maintain mobile equipment. Rather, the case against Coleman concerns
a lack of adequate brakes. As noted, Coleman's failure to recognize the inadequacy of the brakes
does not constitute a "knowing" violation of section 77.1605(b).

ORDER
The Secretary's motion to dismiss the case brought pursuant to section llO(c) of the
Mine Act against Charles Clevinger IS GRANTED. Accordingly, IT IS ORDERED that
Docket No. KENT 2003-274 IS DISl\fiSSED.
Consistent with the above discussion, the Secretary has failed to demonstrate that
David Coleman knowingly authorized, ordered or carried out a violation of section 77.1605(b).
Consequently, IT IS FURTHER ORDERED that Docket No. KENT 2003-275

IS DIS1\1ISSED.

Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail)
Thomas A. Grooms, Esq, Office of the Solicitor, U.S. Department of Labor,
2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215
Mark E. Heath, Esq., Spilman Thomas & Battle, PLLC, 300 Kanawha Boulevard East,
P.O. Box 273, Charleston, WV 25321

/hs

26 FMSHRC 503

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Fax No.: (202) 434-9949

June 4, 2004

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 2003-392-M
A. C. No. 45-03338-04297

V.

PALMER COKING COAL COMPANY,
Respondent

Mine: Morgan Kame Terrace

DECISION
Appearances: John D. Pereza, Conference and Litigation Representative, Office of the Solicitor,
MSHA, US. Department of Labor, Vacaville, California
Bruce L. Brown, Esq. , Office of the Solicitor, U. S. Department of Labor, Seattle,
Washington
William Kombol, Manager, Palmer Coking Coal Company, Black Diamond,
Washington, for Respondent
Before:

Judge Barbour

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor (Secretary) on behalf of her Mine Safety and Health Administration (MSHA) against
Palmer Coking Coal Company (Palmer), pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977 (30 U.S.C. §§ 815, 820) (Mine Act or Act). The Secretary seeks
the assessment for an alleged violation of 30 C.F.R § 56.11027, a mandatory safety standard for
surface metal and nonmetal mines, that requires, inter alia, that working platforms be provided
with handrails. 1 The violation allegedly occurred at the Morgan Kame facili ty of Palmer Coking

Section 57.11027 states:
Scaffolds and working platforms shall be of substantial
con~truction and provided with handrails and maintained in good
condition. Floorboards shall be laid properly and the scaffolds and
working platform shall not be overloaded. Working platforms
shall be provided with toeboards when necessary.

26 FMSHRC 504

Coal Co. (Palmer), a facility where sand and rock are processed. A hearing was held in Tacoma,
Washington.

THE EVIDENCE AND FACTS
Ronald Jacobsen, who testified on behalf of the Secretary, is an MSHA inspector who has
been employed by the agency for approximately three years. Prior to joining MSHA, Jacobsen
worked for 12 years in the mining industry, primarily in sand and gravel operations (Tr. 11-12).
Jacobsen identified a legal identity report Palmer filed on December 7, 2000 (Gov. Exh. P-1). In
the report, Palmer described itself as a partnership. William Kombol, who represented Palmer at
the hearing and who testified on the company's behalf, was listed as the company's manager
(Gov. Exh. P-1). Jacobsen also identified Palmer's Employment and Incident Rate Information
Report (Gov. Exh. P-2). The report was generated from Palmer's quarterly reports (Tr. 13). The
report showed that in 2003, Palmer had an average of eight employees, who worked a total of
3,678 hours. Further, Jacobsen identified a printed copy of Palmer's web page (Gov. Exh. P-4).
The page stated in part:
"Palmer is a producer, supplier, and retailer of a wide selection of
sand, gravel, topsoil, ... red cinder, lava rock and other
construction and landscaping products. All ... products are sold
either picked up or delivered. Palmer serves both commercial
dump trucks and trailers and the small pick-up trade."
(Gov. Exh. 4a).
Jacobsen believed the Morgan Kame facility was subject to the Mine Act. He noted that
Palmer "dig[s] minerals [i.e., sand and rock] from the ground and ... [sizes] them with a
screening and crushing operation" and, therefore, is "considered a mining operation" (Tr. 14, see
also Tr. 45). He also stated that some aggregate produced at the operation is used as a base for
private and state roads (Id.). Further, at Morgan Kame, front end loaders fill trucks with
processed material, and Jacobsen believed some of the equipment was manufactured by
Caterpillar (Tr. 17, 45; see also Tr. 50).
On May 20, 2003, Jacobsen inspected the facility. The inspection included an
examination of the facility's rock crusher. There was a metal work platform around the cone of
the crusher. A ladder lead from the ground to the platform. Employees accessed the platform by
climbing the ladder, grabbing the handrails and stepping onto the platform's metal deck (Tr. 24).
Jacobsen observed that all of the platform was surrounded by a railing, except the area where the
ladder met the platform. At that point, there was a gap (Tr. 18, 32).2 Jacobsen explained that
most other such platforms have a gate at the top of the ladder. An employee can swing open the
2

The railing around the platform was between 36 and 48 feet long. The gap was 3
feet long (Tr. 32, 19).
26 FMSHRC 505

gate to access the platform and swing it shut after stepping onto the work area (Tr. 25). When
the gate is swung shut, it "totally encloses" the platform (IQ)
Through discussions with a company employee, Jacobsen determined that a miner must
use the platform at least twice a week to tighten the cone on the crusher and to grease the
conveyors that dump into the crusher. The cone requires tightening because, as crushing
continues, wear loosens it. Tightening allows the crusher to produce material of a uniform size
(Tr. 19-20).
The cone was about three feet from the opening (Tr. 21). When an employee tightened it,
the employee would use a large tool - a four-foot pipe wrench. The procedure required the
employee to come close to the opening (Tr. 18-19; Gov. Exh. 7). If the employee were to fall
through the opening, he or she would drop between 2 feet and 6 feet, depending on the direction
of the fall ili!:_; Tr. 23). Jacobsen testified that at the time of the inspection, there were loose
rocks on the platform, making a slip or a fall more likely ili!:_, 43; Gov. Exh. 8). Jacobsen also
noted that it frequently rained in the area and that a wet deck enhanced the likelihood of a slip
and fall (Tr. 22).3 Ba~ed on what he saw and was told, Jacobsen concluded that a handrail was
required around the e·f!tire platform and that the gap violated section 56.11027 (Tr. 18-19).
Kombol, on the other hand, testified that the employee who designed the platform for
Palmer did not believe a railing was required at the top of the ladder because employees would
have to have climb over or under it to get to work (Tr. 55, 57). He stated, "[T]he person who
constructed ... [the platform] ... didn't realize ... you have to have a handrail on a
passageway" (Tr. 55).
Jacobsen believed as mining activities continued, it was reasonably likely a serious
accident would occur. He reiterated that miners regularly used the platform as a work station,
that some of their tools were large and that their use brought the miners near the opening. The
miners could slip and fall, and if the platform was wet and there was mud on the miners' shoes,
the likelihood of a slip or fall was even greater (Tr. 26-27). In addition, during major repair
work, discarded crusher parts, e.g., nuts and bolts and other parts, might be lying on the platform
and these, too, could cause a slip or a fall (Tr. 28). If a miner were to fall two feet, a sprain or
broken bones was likely. If a miner were to fall six feet, the fall could be fatal (Tr. 27, 37).
For Kombol, it was a "stretch" to think a fall of six feet was likely (Tr. 54). Rather, if a
miner were to fall through the gap, he or she would fall two feet at most @:.; see Resp. Exh. 7).

In Jacobsen's view, the company was moderately negligent (Tr. 29). The condition was
not brought to the attention of management by the crusher operator who conducted the workplace
3

Jacobsen stated that the leading causes of injury in metal and nonmetal surface
mines are slips and falls. In fiscal 2003, there were 18 such injuries in the State of Washington
(Tr. 22).
26 FMSHRC 506

examination, and the platform was newly installed (Mh, Tr. 31).
Kombol stated he had not seen the gap prior to Jacobsen's inspection, but, if he had, he
"would not have thought the first thing about it" (Tr. 66). It seemed logical to leave open the
passageway to the platform (see Tr. 67).
The condition was corrected when mine management installed a chain across the opening
(Tr. 30). According to Jacobsen, a chain was used because, when hooked, it could prevent a fall
and because it could be unhooked easily to provide access to the platform (Tr. 47-48). Jacobsen
viewed the chain as equivalent to a handrail (Tr. 48).

STIPULATIONS
The parties jointly stipulated as follows:

I. Ron Jacobsen was acting in his official capacity as an authorized representative of the
Secretary ... when he issued [C]itation [N]umber 6350614 ... and the citation was properly
served upon an agent of [Palmer].
2. The violation was promptly abated.

3. Payment of the proposed penalty will not affect . .. [Palmer's] ability to continue in
business.
4. [Palmer's] mine size is small, and ... the employment hours documented in Exhibit A
of the Petition ... are correct.
5. [Palmer's] history of violations as documented in Exhibit A of the Petition ... is
correct.4
Joint Exh. I; Tr. 7.

.JURISDICTION
After the Secretary's witness testified, Kombol moved to dismiss on the basis the
Secretary had not proven Palmer engaged in interstate commerce. I denied the motion, primarily
on the basis of Jacobsen's unrefuted testimony that the material produced at the facility was used
to build state roads. Such roads facilitate the transportation of interstate goods and services, and
being engaged in the building of state roads by producing materials for their construction
qualifies as interstate commerce (Tr. 51-52). I also note that Kombol confirmed Palmer's

4

Exhibit A indicates 12 violations in the two years preceding the alleged violation,
a history the Secretary's representative termed, "not ... excessive" (Tr. 63).
26 FMSHRC 507

ownership and use of Caterpillar equipment and I take judicial notice of the fact that Caterpillar
equipment is manufactured in Illinois.

THE VIOLATION
Section 57.11027 states that "working platforms shall be . . . provided with handrails."
Jacobsen and Kombol agreed the crusher platform was used by miners working at the crusher
and by miners servicing it and the conveyor belts. Thus, the crusher platform was a "working
platform" within the meaning of the standard.

In addition, Jacobsen and Kombol agreed that the handrail surrounding the platform
contained a gap of approximately 36 inches where the ladder accessed the platform. Therefore,
all of the platform was not provided with a handrail as required by the standard, and the violation
existed as charged.
S&S AND GRAVITY
Although Jacobsen found the violation was a significant and substantial contribution to a
mine safety hazard (S&S), I do not agree. The only way one could have fallen from the platform
was through the 36-inch gap. The total perimeter of the platform measured between 36 and 48
feet (Tr. 32). The gap represented only about 7% or 8% of the area that required protection. The
limited nature of the opening reduced the chance a miner would fall through it to the point where
it was not reasonably likely.
Despite the fact the violation was not S&S, it was serious. I credit Jacobsen's testimony
that the leading causes of injury in metal and nonmetal surface mines are slips and falls (Tr. 22).
I also credit his testimony that at the time he observed the violation, the work platform was
littered with rock, making it easier for a miner to slip and fall. If a miner in fact were to fall
through the opening, he or she would fall between two feet and six feet, and, no matter which
distance the miner fell, contusions, sprains, or broken bones could result.

NEGLIGENCE
The violation was due to the operator' s moderate negligence. Kombol testified he did not
know of the gap (Tr. 66), and Jacobsen testified he was told that the miner who performed the
on-shift examination of the platform did not report the gap to mine management (Tr. 66, 29).
While these factors are to some extent exculpatory, the fact remains that the gap was visually
obvious. A reasonably prudent operator should have been aware that the entire perimeter of the
platform had to be protected, even the space through which access was provided. In other words,
the condition should have been known to management and should have been corrected.

26 FMSHRC 508

OTHER CIVIL PENALTY CRITERIA
The parties stipulated the violation was promptly abated, that payment of the proposed
penalty would not affect the company's ability to continue in business and that Palmer is a small
operator (Joint Exh. l; Tr. 7). Further, in the two years preceding the subject violation, Palmer
was cited for 12 violations, a relatively small history (Tr. 63).

ASSESSMENT OF PENALTY AND ORDER
Based on the foregoing findings and conclusions, and taking into account the statutory
civil penalty criteria as required by section 1 lO(i) of the Act (30 U.S.C. §820(i)), I assess a civil
penalty of $60 for the violation of section 57.11027. Palmer SHALL PAY the civil penalty
within 30 days of the date of this decision. Within the same 30 days the Secretary SHALL
MODIFY Citation No. 6350614 by deleting the S&S finding. Upon payment of the penalty and
modification of the citation, this proceeding is DISMISSED.

_j)vu/d f ~~
David F. Barbour
Administrative Law Judge
(202) 434-9980
Distribution:
John D . Pereza, Conference & Litigation Representative, Office of the Solicitor, MSHA,
U.S. Department of Labor, 2060 Peabody Road, Suite 610, Vacaville, CA 95687
Bruce L. Brown, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212
William Kombol, Manager, Palmer Coking Coal Company, P . 0. Box 10, 31407 Highway 169,
Black Diamond, WA 98010
ej

26 FMSHRC 509

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Fax No.: (202) 434-9949

June4, 2004

:MJCHAEL MILLER,

DISCRIMINATION PROCEEDING
Complainant
Docket No. CENT 2003-307-D
DENV CD 2003-9

V.

TXU MINING CO., LP,
Respondent

Mine ID 41-02632
Beckville Strip

DECISION
Appearances:

Alan J. Marcuis, Esq., Hunton & Williams, LLP, Dallas, Texas, for
Respondent
Michael E. Miller, Beckville, Texas, Complainant

Before:

Judge Barbour

This case is before me on a complaint of discrimination filed by Michael Miller pursuant
to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C. §
815(c) (3). 1 Miller alleges that TXU Mining Co., LP., ("TXU") discriminated against him by
terminating him for disciplinary reasons on December 5, 2002, as a result of his complaints about
safety. A hearing was held in Carthage, Texas. For the reasons set forth below, I find that the
Respondent did not discriminate against Miller, and dismiss the complaint.
FINDINGS OF FACT
Miller was employed as a mechanic by TXU at its Tatum Mine, a coal mine located in
Tatum, Texas. He had worked for TXU for several years, and during that time had allegedly been
harassed by management. Specifically, in 1997, while working at TXU's Beckville Mine, Miller
was allegedly harassed by Don Johnson, a supervisor, and Dennis Watkins, a Human Resources
representative. After this incident, Miller was transferred to the Tatum Mine. He attempted to file
a complaint reporting the incident, but TXU refused to accept this complaint. Miller then began
to compile a report to file with MSHA on the harassment issue believing the Agency had
1

Pursuant to. section 105(c)(2) of the Act, a miner may submit a complaint of
discrimination to the Secretary of Labor, who must conduct an investigation and file a complaint
with the Commission if she determines that the Act has been violated. Section 105(c)(3)
provides that, if the Secretary determines that the Act has not been violated, the miner may file
an action before the Commission on his own behalf. 30 U.S.C. § 815(c)(2) and (3).
26FMSHRC 510

jurisdiction. He was fired before he lodged the report. Tr. 18.
On November 6, 2002, Miller made a presentation on the alleged mistreatment that
occurred at the Beckville Mine during a Career Development Meeting. Tr. 33. During this
presentation he discussed the impact harassment by managers had on employees. Tr. 35. He
spoke specifically about his experience at the Beckville Mine, and gave his suggestions on how
to handle these situations. Tr. 35. Miller also named three supervisors, all of whom were present,
he believed had a problem with harassing employees. The supervisors were Jerry Poland,
Gibson, and Cooper.
On December 4, 2002, a monthly safety meeting was held at the Tatum mine. Tr. 59.
During this meeting, Miller and the members of his crew were shown a safety video, which
included scenes of violence in the workplace. Once the video ended, the foreman invited
comments. At this time Miller stood to address those present. Miller believed that TXU
mishandled employees with anger management problems and had not taken the proper actions in
situations where employees had been harassed. It was Miller's opinion that both of these issues
would lead to workplace violence, and thus cause an unsafe working condition. Specifically,
Miller used his own situation as an example. He described how he believed managers had
mistreated and belittled him. In discussing what he believed was a potential safety issue, Miller
used abusive language and profanities to describe the two managers about which he had
complained and directed other profanities at fellow employees.2 That afternoon, Miller met with
his direct supervisor Stanley Berry to discuss what he said during the safety meeting. Berry stated
he would have to notify his direct supervisor Jerry Poland because Miller had used inappropriate
language. Tr. 179. Upon finishing his shift, Miller met with Berry and Poland. At this time,
Poland informed Miller that there would be an investigation of the incident, which could possibly
lead to disciplinary action.
On December 5, 2002, Berry and Poland questioned members of Miller's crew who were
present at the meeting the previous day. Tr. 184-85. The employees confirmed that Miller had
used abusive language and profanities directed towards management and co-workers. Tr. 185.
Also, they voiced their concerns about working with Miller. Some were unsure how to act around
Miller, and believed he needed professional help. The group were most wonied about what
would set-off his next outburst. Next, Berry and Poland met with other members of management
to discuss the issue further. The company discipline policy provided for a four-step process: an
oral warning, a written warning, a final warning and termination. Tr. 188. However, under certain
circumstances, if the violation is severe enough, the company can by-pass steps and terminate
employment immediately. The group decided to terminate Miller because he violated both the

2

Miller referred to Johnson and Watkins as "stupid son of ab***"; "g** d** stupid
b*****"; sorry mother f*** ." Tr. 172.
26 FMSHRC 511

Company's code of conduct and employee handbook, and had a prior history of similar acts. 3 Tr.
185.
On May 13, 2003, Miller filed a complaint of discrimination with the Secretary's Mine
Safety and Health Administration ("MSHA"), alleging that he had been discriminated against
when he was terminated on December 5, 2002. He stated in his complaint that his termination
was in retaliation for trying to complain about a safety concern. Miller believed that TXU
mishandled employees with anger management problems and situations where employees had
been harassed. It was his opinion that both of these issues could lead to workplace violence
causing an unsafe working condition. MSHA concluded, on behalf of the Secretary, that no
discrimination had occurred, and declined to file a complaint on Miller's behalf. On August 13,
2003, Miller then filed the instant complaint with the Commission.4
THE LAW

A complainant alleging discrimination under the Act typically establishes a prim.a facie
case by presenting evidence sufficient to support a conclusion that he engaged in protected
activity and suffered adverse action motivated in any part by that activity. See Driessen v. Nevada
Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec'y ofLabor on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec'y of Labor on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator may
rebut the primafacie case by showing either that no protected activity occurred or that the
adverse action was in no way motivated by protected activity. See Robinette, 3 FMSHRC at 818;
n. 20. If the operator cannot rebut the prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it was also motivated by the miner's unprotected activity and would
have taken the adverse action for the unprotected activity alone. Id. at 817-18; Pasula, 2
FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43
(4th Cir. 1987) (applying Pasula-Robinette test).

While the operator must bear the burden of persuasion on its affirmative defense, the
ultimate burden of persuasion remains with the complainant. Pasula, 2 FMSHRC at 2800;
Schulte v. Lizz.a, 6 FMSHRC 8, 16 (Jan. 1984).

3

In 1994, Miller was placed in step one of the disciplinary process. In 1997, he was
placed in step two. Both incidents involved threats, abusive language, and disrupting meetings.
Tr. 189.
4

The Act mandates that such claims must be filed within 60 days of termination. Miller's
complaint was filed well after the lapse of this deadline. In view of the fact that he was
representing himself and the lack of demonstrative prejudice to the Respondent, I was reluctant
to strictly apply the time-limit and allowed the complaint to be heard. Tr. 12.
26 FMSHRC 512

PRIMA FACIE CASE
There is no dispute that Miller suffered an adverse action. Therefore, the principle issue is
whether the activity resulting in the action was protected. For the reasons that follow, I find that
it was not.
Section 105(c)(l) of the Act prohibits discrimination against any miner who complains to
an operator or its agent about "an alleged danger or safety or health violation." 30 U.S.C. §
815(c)(l). Miller testified that he was terminated for reporting a safety violation. Tr. 15. He
believed that when an employee is harassed by management or co-workers, hostility is created
leading to a potentially violent situation. This possible violence is the unsafe working condition
about which Miller was concerned. Miller was speaking from his own experience which, in his
view, exemplified "how not to handle an employee." Tr. 39. Miller attempted to notify
management of this potential problem during his November 6, 2002, presentation. He was also in
the process of compiling a report to document the harassment he allegedly was subject to at the
Beckville mine. Miller's final attempt to bring attention to this issue was at the safety meeting
held on December 4, 2002.
The supervisors who terminated Miller testified that at no time during these attempts did
he mention conventional safety concerns. Tr. 227-28. Both Poland and Berry stated that Miller
never brought up traditional unsafe working conditions during the safety meeting or in their
meetings with Miller just prior to his termination. Tr. 173, 181, 210. Rather, it was their believe
that Miller was complaining about the way he was treated by Johnson and Watkins. Tr. 173.
From the record it is clear that the essence of Miller's discrimination complaint is that the
company's failure to properly handle his and others employee harassment issues could cause
anger induced violence in the workplace, and violence is a safety hazard. While the complaint is
novel, it is not grounded on an alleged violation of a health or safety standard or on a hazardous
mining-related condition or practice existing in the mine environment. Rather, it relates to what
best is described as an unacceptable, unreasonable and idiosyncratic reaction to a personnel
complaint. As such, it falls outside the penumbra of the Act, which is primarily concerned with
conditions present in a mine that pose a threat to miners' physical health and well-being.
Miller's attempt to equate irrational work place violence triggered by a personnel matter with
protected activity is too attenuated to come within the statute. For this reason alone, Miller's
complaint must be dismissed.
AFFIRMATIVE DEFENSE
Even if Miller were found to have engaged in protected activity, and thus to have
established a prima facie case, I find the TXU defended affirmatively by proving that it was
motivated by Miller's unprotected activity and would have dismissed Miller for the unprotected
activity alone. The supervisors who terminated Miller - Berry, Johnson and Ralph Dick - credibly
testified that their decision was based solely on the events of December 4, 2002, Tr. 227-28, and
that Miller was terminated because he used "very abusive and profane language" toward
26FMSHRC 513

managers and co-workers during the comment portion of the monthly safety meeting. Tr. 172.
Stanley Berry testified that TXU has a four-step discipline policy which culminated in
termination, but under special circumstances tennination can be used immediately. Tr. 188. The
group concluded it would use immediate termination because Miller not only violated both ~he
TXU' s code of conduct and employee handbook, but also had a prior history of similar acts. Tr.
185.
It is clear from the evidence and the testimony that the company regarded Miller's ·
profane and irrational outburst of December 4 as not only violative of the company's profanity
and abusive language policy but also as a harbinger of other possible irrational behavior. The
latter concern was not unreasonable, for it is also clear that some of Miller' s co-workers were
wary of him. Tr. 185-188. TXU thus had lawful business justifications for terminating Miller's
employment and did not formulate a mere pretext to mask an unlawful motive.
ORDER
For the reasons stated above, I find that Miller did not engage in protected activity and
therefore did not establish a prima facie case. I further find that even if Miller engaged in
protected activity, T.X.U.'s decision to terminate him was based solely upon legitimate business
considerations and did not violate the Act. Accordingly, the Discrimination Complaint is
T""IT<::l\llT<::<::Pn

d~.3~~

J)l/f//
David F. Barbour
Admimstrati.ve Law Judge
(202) 434-9980

Distribution: (Certified)
Michael E. Miller, P. 0. Box 68, Beckville, TX 75631
Alan J. Marcuis, Esq., Hunton & Williams, I.LP, 1601 Bryan Street, 30th Floor, Dallas, TX
75201

26FMSHRC 514

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021

June 8, 2004
SECREfARY OF LABOR,
:MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVlL PENALTY PROCEEDING
Docket No. KENT 2004-34
A.C. No. 15-07201-10885

v.
HARLAN CUMBERLAND COAL CO,
Mine: C-2

Respondent.

DECISION
Appearances: Michael Finney, CLR, U.S. Department of Labor, MSHA, Madisonville, KY, and
Ronnie Brock, CLR, U.S. Department of Labor, MSHA, Barbourville, KY, and
Marybeth Bemui, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, TN, for the Secretary;
H . Kent Hendrickson, Esq., Rice & Hendrickson, Harlan, KY, for the Respondent.
Before:

Judge Avram Weisberger

Statement of the Case
This case is before me based on a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor, ("Secretary'') seeking the imposition of a civil penalty against Harlan
Cumberland Coal Company, ("Harlan Cumberland"), based on the latter's alleged violation of
certain mandatory safety standards, set forth in Title 30, Code of Federal Regulations. A hearing
was held in Knoxville, Tennessee, on May 5, 2004. At the close of the hearing, after the parties
presented oral arguments, a bench decision was issued, which, aside from correction of matters
not of substance is set forth below:
1.
Citation No. 7538234
Citation No. 7538234 alleges a violation of 30 C.F.R. §75.400, which provides
that '[c]oal dust, including float coal dust deposited on rock-dusted surfaces, loose
coal, and other combustible materials, shall be cleaned up and not be permitted to
accumulate in active workings or on diesel-powered and electric equipment
therein.'

The inspector testified that he observed a spillage 'pretty much' along the
entire 4,000 length of the belt; and that the accumulation was black in color,
which indicated the presence of float coal dust. He also observed that loose coal
was six inches deep, and extended the entire length of the belt, from the head to
26 FMSHRC 515

the tail, with the exception of approximately 100 feet that had been cleaned. This
testimony was not contradicted by Respondent's witness, nor was it impeached.
Respondent argues that inasmuch as 30 C.F.R. §75.400-l(a) and (b),
define coal dust and float coal dust as particles of coal that can pass through a 20
sieve and 200 sieve, respectively, since the inspector conceded that he did not pass
the accumulations through a sieve he thus did not establish the presence of float or
coal dust.
I do not find the inspector's failure to pass the items through a sieve as
being fatal to establishing a violation. In Old Ben, 1 FMSHRC, 1954, 1956,
December 12, 1979, the Commission analyzed the purpose of Section 304(a) of
the 1969 Act, whose language is repeated in Section 75.400, supra. The
Commission held, that the legislative history and purposes of the Act"... point to
a holding that the standard is violated when an accumulation of combustible
materials exists." Thus, I find that Section 75.400 near does not require that the
accumulated materials be passed through a sieve to establish a violation of that
Section.
Respondent further argues that the inspector did not conduct any study
with regard to the amount of combustible material present. Section 75.400, supra,
does not require, to establish a violation, that the presence of a specific percentage
of combustible material be set forth in order to establish a violation. It merely
provides that any combustible material, including loose coal dust, shall be cleaned

!:!R·
Based upon the inspector's testimony regarding the accumulations of coal
and their extent, I find that Section 75.400 supm, was violated.
I take cognizance of the holding of the Commission Mathies Coal Co., 6
FMSHRC 1, January 1984, that for a violation to be considered significant and
substantial, the Secretary must establish the following elements: an underlying
violation of a safety standard, a discreet safety hazard contributed to by the
violation, a reasonable likelihood that the hazard contributed to would result in an
injury, and a reasonable likelihood that the injury in question would be of a
reasonably serious nature. I have already found that there was a violation of a
mandatory safety hazard. The inspector testified, with regard to the second
element, that should the belt catch on fire, the accumulations would lead to
production of a smoke, which he said was extremely hazardous. This testimony
was not contradicted, and it was not specifically impeached. I find that the second
element has·been met.
With regard to the third element, the Secretary must establish that it was
26FMSHRC 516

reasonably likely for a fire to have occurred. In this connection, the inspector
testified that there was oxygen present, that there was loose coal present which
was combustible, that the belt runs 8 to 12 hours a day, and that because sixty
rollers were stuck in coal, movement of the belt across these rollers would lead to
friction, which could cause bearings to heat up leading to a fire. However, I find
it significant that there wasn't any evidence adduced that any of the rollers were
hot or warm to the touch. Nor was any testimony that any of them appeared to be
red, which would indicate they were hot.
The inspector indicated that he had been told by other inspectors that stuck
rollers have caused fires. Not much weight is accorded this hearsay testimony.
There were no specifics referred to in this testimony. There is an absence of
evidence that the specific conditions herein, that the inspector testified to, have led
to mine fires at other mines.
Therefore, I find that the Secretary has not established the third element of
Mathies, supra, i.e., that there was a reasonable likelihood that the accumulations
present would have contributed to an injury-producing event, in this case, a fire.
Regarding a penalty, I find that Respondent's negligence was of a
moderate degree, as the record indicated that Respondent had started to clean the
accumulations and had, in fact, cleaned 100 feet. The gravity of the violation was
moderately high, as it could have caused injuries due to smoke inhalation. Taking
into account the remaining factors set forth in Section llO(i) of the Act as
stipulated to, I find a penalty of $100.00 is appropriate.
2.

Citation No. 7538233

Citation No. 7538233 alleges a violation of 30 C.F.R. § l 722(b), which
provides that guards at conveyor head pulleys" ... shall extend a distance sufficient
to prevent a person from reaching behind the guard and becoming caught between
the belt and the pulley."
The inspector testified that, regarding the Number 3 belt, there was a
section of guarding missing at the head roller exposing an eight-foot section along
the walk-side of the belt. He opined that without the guard a miner in the area
could get caught in the roller. He said that anybody cleaning would be within an
arm's length of the roller. This testimony, in essence, was not contradicted or
impeached. Based on this testimony, I find that Respondent did violate Section
1722, supra.
With regard to the significant and substantial aspect of the violation, the
inspector testified that because the belt examiner who had been cleaning the area
26 FMSHRC 517

was wearing loose clothing, it was reasonably likely that he would have gotten
caught in the unguarded pulley. However, the belt was not in operation at the
time, and was not in operation when it was cited. There was not any evidence
adduced setting forth the spatial relationship between a miner cleaning in the area,
and the location of any hazardous parts that were unguarded. Under these
conditions, I find that the third element set forth in Mathies, supra, has not been
established. Thus, I find that the violation was not significant and substantial.
With regard to a penalty, the inspector testified that should an injury have
occurred as a result of the violation, in all likelihood it would have been in the
nature of broken limbs or possibly a fatality. Based upon this testimony, which
was not contradicted or impeached, I find that the level of gravity was moderately
high. Respondent's witness, Ray Alred, testified, regarding negligence, that it is
necessary to remove the guard in order to shovel coal dust, and that the belt was
off when this was done. This testimony was not contradicted. Indeed, the
inspector testified that the belt examiner told him that he had removed the guard
in order to clean, and had forgotten to put in back. Within this context, I find
Respondent's negligence moderately high. Considering the remaining factors set
forth in Section 1lO(i) of the Act, as stipulated to by the parties, I find that a
penalty of $ 100.00 is appropriate.

3.

Citation No. 7538235

At the conclusion of the hearing, the Secretary made a motion to approve a settlement
agreement entered into by the parties regarding Citation No. 7538235. A reduction in penalty
from $153.00 to $60.00 is proposed. I have considered the representations, testimony, and
documentation submitted regarding this citation, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section 11 O(i) of the Act.

26 FMSHRC 518

It is Ordered that Respondent pay a total civil penalty of $260.00 within 30 days of this
Decision.

~
A~eisberger
;(['

Administrative Law Judge
Distribution List:
Michael Finney, Conference & Litigation Representative, U.S. Dept of Labor, MSHA, 100
YMCA Drive, Madisonville, KY 42431
Ronnie Brock, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 3837
S, U.S. Hwy 25E, Barbourville, KY 40906
Marybeth Bernui, Esq., U.S. Dept. of Labor, Office of the Solicitor, 2002 Richard Jones Rd., Ste
B-201 , Nashville, TN 37215
H. Kent Hendrickson, Esq., Rice & Hendrickson, P.O. Box 980, Harlan, KY 40831
/sc

26FMSHRC 519

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021
Fax No.: (202) 434-9949
June 15, 2004
SECRETARY OF LABOR
1v1INE SAFETY AND HEALTH
ADMJNISTRATION, (MSHA)
Petitioner

v.
INDEPENDENCE COAL CO., INC.,
Respondent
SECRETARY OF LABOR
1v1INE SAFETY AND HEALTH
ADMJNISTRATION, (MSHA)
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2002-138
A.C. No. 46-08603-03527
Docket No. WEVA 2002-144
A.C. No. 46-08603-03528
Cedar Grove Mine
CIVJLPENALTYPROCEEDING
Docket No. WEVA 2003-188
A.C. No. 46-08603-03529 A

v.
FREDDY TERRAL, employed by
INDEPENDENCE COAL CO., INC.,
Respondent
SECRETARY OF LABOR
1v1INE SAFETY AND HEALTH
ADMJNISTRATION, (MSHA)
Petitioner

Cedar Grove Mine

CIVJL PENALTY PROCEEDING
Docket No. WEVA 2003-189
A.C. No. 46-08603-03530 A

v.
BRUCE GllMOUR, employed by
INDEPENDENCE COAL CO. , INC.,
Respondent
Il\TDEPENDENCE COAL CO., INC.,
Contestant

Cedar Grove Mine

CONTEST PROCEEDINGS
Docket No. WEVA 2002-27-R
Citation No. 7205804; 8/27/2001

v.
Docket No. WEVA 2002-28-R
Order No. 7205805; 8/2715/2001
26 FMSHRC 520

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

Docket No. WEV A 2002-29-R
Order No. 7205806; 8/27/2001
Docket No. WEVA 2002-30-R
Order No. 7205807; 8/27/2001
Docket No. WEVA 2002-31-R
Order No. 7205808; 8/27/2001
Docket No. WEVA 2002-5-R
Order No. 7205802; 8/28/2001
Docket No. WEVA 2002-6-R
Citation No. 7205803; 8/28/2001
Cedar Grove Mine No. 1
Mine ID 46-08603
DECISION

Appearances: Robert S. Wilson, Esq., and Francine A. Serafin, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for the Secretary of Labor;
David J. Hardy, Esq., Spilman Thomas & Battle, PILC, Charleston, West
Virginia, for Independence Coal Co., Inc.;
Robert B. Allen, Esq., Allen Guthrie McHugh & Thomas, PILC, Charleston,
West Virginia, for Freddy Terral and Bruce Gilmour.
Before:

Judge Hodgdon

These consolidated cases are before me on Notices of Contest and Petitions for
Assessment of Civil Penalty brought by Independence Coal Co., Inc., against the Secretary of
Labor, and by the Secretary of Labor, acting through her Mine Safety and Health Administration
(MSHA), against Independence Coal and Freddy Terral and Bruce Gilmour, both employees of
Independence, pursuant to sections 105 and 110(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ 815 and 820(c). The company contests the issuance of Order No. 7205802,
an "imminent danger" order under section 107(a) of the Act, 30 U.S.C. § 817(a), and two
citations and four orders alleging violations of the Secretary's mandatory health and safety
standards. The petitions allege six violations of the Secretary's mandatory health and safety
standards by Independence Coal and three violations each by Terral and Gilmour. The Secretary
seeks penalties of $284,500.00 against Independence Coal and $1,500.00 each against Terral and
Gilmour. A hearing was held in Charleston, West Virginia. For the reasons set forth below,
I dismiss Docket Nos. WEVA 2003-188 and WEVA 2003-189, dismiss three of the contest
26 FMSHRC 521

dockets, modify four citations and assess a penalty of $34,750.00.

Settled and Dismissed Matters
At the beginning of the hearing, the parties announced that they had settled Citation No.
7205803 in Docket No. WEVA 2002-144. The agreement, which I approved, provides that the
negligence alleged will be reduced from "high" to "moderate" and that Independence Coal will
pay a penalty of $4,750.00. (Tr. I. 8-9.) 1 The terms of the agreement will be carried out in the
order at the end of this decision.
Also, at the start of the hearing, counsel for the Secretary moved to dismiss the 110(c)
charge with respect to Order No. 7205807 against Freddy Terral and the llO(c) charge with
respect to Order No. 7205808 against Bruce Gilmour. The motions were granted without
objection, (Tr. I. 13-14), and will be carried out in the order at the end of this decision.
On May 21, 2004, counsel for Independence Coal moved to withdraw its Notice of
Contest in Docket No. WEVA 2002-5-R contesting the issuance of Order No. 7205802, the
"imminent danger" order. Noting that that order was included in the citation modified and
settled in Docket No. WEVA 2002-144, the company moved to withdraw the contest because it
considered the imminent danger order moot.
Commission Rule 11, 29 C.F.R. § 2700.11, provides that: "A party may withdraw a
pleading at any stage of a proceeding with approval of the Judge or the Commission."
Accordingly, the request to withdraw the Notice of Contest in Docket No. WEVA 2002-5-R is
GRANTED and the docket will be dismissed in the order at the end of this decision.

Background
Independence Coal Company operates the Cedar Grove underground coal mine in
Raleigh County, West Virginia. Independence Coal is a subsidiary of Massey Energy.
On August 27, 2001, Bruce Gilmour, a section foreman on the first shift, told continuous
miner operator George Bailey to shear the right hand rib in the No. 5 entry, because the entry was
too narrow. This occurred at about 2:20 p.m. as Gilmour was beginning to perform the preshift
examination for the oncoming second shift. As directed, Bailey sheared the right rib and took a
partial cut out of the face. By the time he did that, the shift ended and Bailey backed the miner
out of the face and proceeded to the surface to go home.

1

A separate transcript was printed for each of the three hearing days. Accordingly,
transcript citations will be ''Tr. I.," ' 'Tr. II.," or ''Tr. ill." depending on the transcript volume
being cited.
26 FMSHRC 522

When Gilmour completed his preshift examination, he called it out to Freddy Terral, the
second shift section foreman, to be recorded in the preshift book. Then, he also proceeded to the
surface. He did not return to the No. 5 entry after he examined it and told Bailey what to do.
Terral performed an on-shift examination of the No. 5 entry at 3:52 p.m. Shortly after
that time, Gregory Barron, a continuous miner operator, began mining in the entry. The shuttle
car operator taking the coal from Barron's miner to the dumping point at the belt was Brandon
Davis. When he returned from his thirteenth trip, at about 4:45 p.m., Davis found Barron under a
large rock that had fallen on him. Barron was in a sitting position and the rock was lying on his
back and shoulders. Davis was unable to move the rock by himself and called for help. When
help arrived, the rock was lifted and Barron was removed from under it. He was not breathing
and Terral began administering CPR. Barron was then moved out of the mine and taken to a
hospital where he was pronounced dead.
Accident investigators from MSHA and West Virginia arrived at the mine around
9:00 p.m. Roger Richmond was the lead investigator for MSHA and was in charge of the
investigation. He was accompanied by Jon Braenovich, a Supervisory Roof Control Specialist in
the Mt. Hope, West Virginia, District Office, and by Joseph Cybulski, a Supervisory Mining
Engineer in the Roof Control Division of MSHA's Pittsburgh Safety and Health Technology
Center.
The MSHA investigators, along with state investigators and representatives of the
company, went underground to the No. 5 entry about 9:30 p.m. Once there, the investigators
made observations, took notes and made measurements. Photographs were also taken of the
accident scene. The next day, the investigators interviewed witnesses and took more
measurements. Among other things, the investigators observed the rock which had fallen
on Barron. It measured 83 inches long, was 27 inches wide and was 8 inches thick.
(Jt. Ex. 1, stip. 24.) They also saw that the head had been cut off of a roof bolt in the second
row of bolts from the face and that there were no reflectors hanging anywhere in the entry.
As a result of the investigation, one citation and four orders were issued to Independence
Coal. A subsequent llO(c) investigation resulted in Terral and Gilmour being individually
charged with three of the violations.

Findings of Fact and Conclusions of Law
It is the Secretary's theory that the fatal accident occurred as follows: (1) Bailey sheared
the right rib in the No. 5 entry, leaving an obvious and hazardous brow where the rib and the roof
come together; (2) Bailey also sheared the head off of a roof bolt and knocked down reflectors,
which were hanging from the second row of roof bolts from the face, and did not replace.them;
(3) Gilmour failed to conduct an adequate preshift examination because he did not return to the
No. 5 entry even though he should have known that Bailey's shearing of the rib would result in a
hazardous condition; and, if he had done so, he would have seen the hazardous brow, the sheared

26 FMSHRC 523

bolt and the missing reflectors; (4) Terral did not conduct an adequate on-shift examination
because he did not observe the hazardous brow, the sheared bolt or the missing reflectors; and (5)
Barron mined in the No. 5 entry for almost an hour, without observing the hazardous brow, the
sheared bolt or the missing reflectors, until the brow fell on him.
As always, the Secretary has the burden of proof. In this case, the Secretary's theory
requires that it be concluded that all of the Independence employees who testified at the hearing,
including two who were called by the Secretary, were untruthful. However, even if that
conclusion is reached, the Secretary still presented no evidence, other than the fact that the
accident occurred, to prove her case. Neither Cybulski nor Braenovich, the only other witnesses
who testified, saw what the No. 5 entry looked like after Bailey finished shearing the rib, or when
Terral conducted his on-shift examination, or when Barron began mining or when the accident
happened. Thus, while some of the violations must be affirmed, because they existed after the
accident, the Secretary has failed to prove that anything occurred as she theorizes.
The individual violations will be discussed in the order that they were issued.
Citation No. 7205804
This citation alleges a violation of section 75.202(a) of the Secretary's rules, 30 C.F.R.
§ 75.202(a), because:
The roof and/or ribs were not supported or otherwise
controlled to protect persons from hazards related to falls. A large
rock brow measuring approximately 81 inches in length, 91h
inches to 25 inches wide and 7 inches to 15 inches thick fell and hit
the continuous mining machine operator who was working under
the unsupported brow. A fatal roof fall accident occurred on
8/27/01. The cited condition or practice resulted from evidence
and information obtained during the fatal accident investigation
that followed.
(Govt. Ex. 1.) Section 75.202(a) requires that: ''The roof, face and ribs of areas where persons
work or travel shall be supported or otherwise controlled to protect persons from hazards related
to falls of the roof, face or ribs and coal or rock bursts."
Independence Coal does not assert, in its brief, that a violation of section 75.202(a) did
not occur. Instead with regard to this citation, it argues only that the violation was neither
"significant and substantial" nor an "unwarrantable failure." (Resp. Br. at 20-23.) Nonetheless,
the facts support this apparent concession.
It is undisputed that the rock brow fell from the roof and struck Barron, who was working
in the area. The Commission, noting that section 75.202(a) is broadly worded, has stated:

26 FMSHRC 524

Accordingly, we have held that "the adequacy of particular roof
support or other control must be measured against the test of
whether the support or control is what a reasonably prudent person,
familiar with the mining industry and protective purpose of the
standard, would have provided in order to meet the protection
intended by the standard." Canon Coal Co., 9 FMSHRC 667, 668
(Apr. 1987) (cited in Helen Mining Co., 10 FMSHRC 1672, 1675
(Dec. 1988)).
Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1277 (Dec. 1998).

As to whether the brow was adequately supported, Cybulski and Braenovich testified that
"[a]ny brow poses a hazard" and that normally a rock brow is "either supported or taken down."
(Tr. I. 157, 287.) The company witnesses, Norman "Red" Hill, Jr., Gilmour, Terral and John
Adkins, would not admit that every brow was hazardous, but at least agreed that a brow could be
hazardous, needed to be examined carefully and either taken down or supported.2 (Tr. II. 229-30,
291, Tr. ill. 79.)
In this case, the brow obviously had not been taken down. Nor had it been supported.
(Tr. I. 288.) I find that, although no one saw the brow before it fell, except possibly Barron,
based on the size of the brow and because such brows are usually hazardous, a reasonably
prudent person would have concluded that the brow had to be supported or taken down.
Consequently, I conclude that the brow was not adequately supported or otherwise controlled in
violation of the regulation.
While there is no evidence in this case that anyone in authority was aware of the existence
of the rock brow, "the Mine Act clearly contemplates that a violation may be found where the
wrongful act is performed by someone other than the operator." Western Fuels-Utah, Inc. v.
FMSHRC, 870 F.2d 711, 716 (D.C. Cir. 1989). Thus, "the Act's scheme of liability provides that
an operator, although faultless itself, may be held liable for the violative acts of its employees
.... " Bulk Transportation Services, Inc., 13 FMSHRC 1354, 1359-60 (Sept. 1991); accord
Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1115 (Jul. 1995). Consequently, it makes
no difference whether Bailey or Barron caused the brow; under the Act's scheme of strict

2

In her brief, the Secretary requested that I find that the company was judicially
estopped from arguing "that rock brows are not inherently dangerous" because in another case
involving Independence Coal, the company attorney stated that a brow "is a very dangerous
condition in any mine, you don't want a rock brow hanging without support underneath it, it
could fall." (Sec. Br. at 13-14.) In the first place, the company, as noted, has made no argument
concerning the fact of violation. In the second place, the statement quoted does not claim that
rock brows are always dangerous. Accordingly, I decline the Secretary's invitation to hold that
Independence Coal is forever estopped from arguing that a particular brow might not be a
hazardous condition.
26 FMSHRC 525

liability, the fact that the brow existed makes Independence Coal liable for the violation.

Significant and Substantial
The Inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in Section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l),
as a violation "of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." A violation is properly designated S&S
"if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission set out four criteria that
have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d
133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988),
affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).
Evaluation of the criteria is made in terms of "continued normal mining operations." U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574 (Jul. 1984). The question of whether a particular
violation is significant and substantial must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007 (Dec. 1987).
In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying
violation of a safety standard; (2) a distinct safety hazard, 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, 6 FMSHRC at 3-4.
The operator argues that "there is no evidence the brow was in such a condition that
would present a hazard," and, therefore, the violation was not S&S. (Resp. Br. at 23.) This
conclusory statement does not consider the Mathies criteria. Applying those criteria, I have
already found the violation of a safety standard, section75.202(a). I further find that the violation
of that standard contributed to the danger of a roof fall-which in fact occurred. In addition, I find
that there was a reasonable likelihood that the hazard contributed to, a roof fall, would result in
an injury. What the Commission said twenty years ago, that "[r]oof falls have been recognized
by Congress, the Secretary of Labor, the industry, and this Commission, as one of the most
serious hazards in mining" and "remain the leading cause of death in underground mines," is just
as true today. Consolidation Coal Co., 6 FMSHRC 34, 37 n.4 (Jan. 1984). Finally, since the fall
resulted in a death, I find that there was a reasonable likelihood that the injury would be of a
reasonably serious nature.
Clearly, the failure to support or otherwise control the brow "was a significant
contributing cause to the fatal accident." Walker Stone Co., Inc., 19 FMSHRC 48, 53 (Jan.
26 FMSHRC 526

1997). Accordingly, I find that the violation was "significant and substantial."
Unwarrantable Failure

This violation was also alleged to be an "unwarrantable failure."3 The Commission has
held that unwarrantable failure is aggravated conduct constituting more than ordinary negligence
by a mine operator in relation to a violation of the Act. Emery Mining Corp., 9 FMSHRC 1997,
2004 (Dec. 1987); Youghiogheny & Ohio Coal Co., 9 FMSHRC at 2010. "Unwarrantable failure
is characterized by such conduct as 'reckless disregard,' 'intentional misconduct,' 'indifference'
or a 'serious lack of reasonable care.' [Emery] at 2003-04; Rochester & Pittsburgh Coal Corp.
13 FMSHRC 189, 193-94 (February 1991)." Wyoming Fuel Co., 16 FMSHRC 1618, 1627
(Aug. 1994); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)
(approving Commission's unwarrantable failure test).
The Secretary asserts that the failure of Gilmour and Terral "to detect and correct this
hazardous condition constitutes inexcusable, neglectful conduct which meets the ... definitions
of unwarrantable failure and reckless disregard." (Sec. Br. at 18.) Unfortunately, there is no
evidence to support this assertion.
Bailey, the continuous miner operator, testified that he did not observe anything that he
considered to be a hazardous condition after he finished shearing the rib and that when he left the
area there was no brow. (Tr. I. 72-73, 93.) Terral testified that: "There was no rock brow there
when I did my examination." (Tr. II. 293.) Davis, the scoop operator who had only been a miner
about eight months, was less positive, but stated: "I don't-I don't recall seeing anything loose or
anything like that, that I thought, you know, might have been bad. Of course I might not have
been paying as much attention as I should have." (Tr. I. 118.) He later said: "I know I don't
recall seeing anything loose .... Nothing like that." (Tr. I. 127.) Gilmour, of course, left the area
before the rib was sheared to complete his preshift examination and did not see it again.
Terral also testified that the company had a "scaler'' and that "the scaler's the one-the
man that's designated every week-he goes in and he runs the whole mine, face area, feeder in,
and if there's any loose top or ribs he'll scale them, pull them down.... His job is to make the
area safe .... at the beginning of the shift" (Tr. II. 258.) With regard to the scaler, he further
testified as follows:

Q Had he [the scaler] run into a condition that he felt was
hazardous that he couldn't correct on his own, he would have been
back to see you, wouldn't he?

3

The term "unwarrantable failure" is taken from section 104(d)(l) of the Act, which
assigns more severe sanctions for any violation that is caused by "an unwarrantable failure of
[an] operator to comply with ... mandatory health or safety standards."
26 FMSHRC 527

A He would have came [sic] and got me. Right.

Q Did he come and get you with regard to any conditions in that
mine on August 27th?
A No, sir.
(Tr. II. 304.)
Against this direct evidence, the Secretary's case rests on the assumption that the brow
was present after Bailey finished shearing the rib. As support for this assumption, the Secretary
argues that since Bailey said he thought the entry was wide enough after he sheared the rib and
Terral thought the entry looked wide enough when he did his on-shift examination, there was no
reason for Barron to have sheared the rib. (Sec. Br. at 19.) But, there is no evidence that the
entry was as wide when Bailey finished shearing the rib as it was after the accident, because
neither Bailey nor Terral measured the width of the entry or estimated how wide it was. The
Secretary also argues that Davis did not see Barron shearing the rib. (Id.) However, the fact that
Davis did not see Barron shearing the rib does not prove that he did not shear it, because as Davis
said: "If, you know, he did, maybe it was while I was at the feeder dumping." (Tr. I. 106.) Thus,
I find that, based on the available evidence, the inference that Bailey left the brow is not as strong
as the inference that Barron did.
Despite the fact that the Secretary's case is based solely on supposition and that the direct
evidence is all contrary to that supposition, with the exception of Bailey, the Secretary does not
discuss anywhere in her brief the credibility of the witnesses or attempt to impeach their
testimony. With regard to Bailey, the Secretary suggests that: "Given the traumatic nature of
what occurred, Mr. Bailey may actually believe, albeit incorrectly, that he did not leave a brow;
however, this part of his testimony is not credible." (Sec. Br. at 21.) The Secretary goes on to
argue that: "Given his description of the mining conditions, and being unable to see because of
the dust, this description is simply not believable." (Id.) The Secretary has taken Bailey' s
testimony about mining conditions out of context.
Bailey's testimony concerning dust obscuring his vision was given as an explanation as to
why the entry was originally cut too narrowly. (Tr. I. 52-53.) In other words, he said that
because of the dust caused by the operation of the continuous mining machine he was unable to
see that he was cutting the entry too narrowly. However, with regard to the brow, he was asked if
after he had finished shearing the rib he specifically looked at the roof and made a conscious
decision that no additional roof bolts were needed and he answered in the affirmative. (Tr. I. 7374.) Thus, it is clear that he examined the roof after he had stopped mining and the miner was no
longer creating dust. Moreover, as already noted, Bailey' s testimony is corroborated by Terral
and, to some extent, Davis.

26 FMSHRC 528

Consequently, I find that the Secretary has not proven that the brow existed before Barron
began mining in the entry. Nor has she foreclosed the possibility that Barron made the cut which
left the brow. In this connection, I find it somewhat significant that Barron had been mining for
about 45 minutes, Davis had made thirteen scoop runs, yet, according to the diagram of the scene
after the accident, the mining machine is not shown as having advanced very far into the entry.
Hence, a preponderance of the evidence does not indicate that either Terral or Gilmour was
negligent, let alone acted with reek.less disregard.

If Barron left the brow, he was clearly negligent. However, the Commission has long
held that the negligence of a "rank-and-file" miner cannot be imputed to the operator for civil
penalty purposes. Fort Scott, 17 FMSHRC at 1116; Western Fuels-Utah, Inc., IO FMSHRC 256,
260-61(Mar.1988); Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug. 1982) (SOCCO).
The Commission has further held that: "[W]here a rank-and-file employee has violated the Act,
the operator's supervision, training and disciplining of its employees must be examined to
determine if the operator has taken reasonable steps necessary to prevent the rank-and-file
miner's violative conduct." SOCCO at 1464. Finally, while this standard is normally applied in
determining the operator's negligence for penalty purposes, the Commission has confirmed that
it also applies in determining whether an operator can be held responsible for a miner's
aggravated conduct and, thus, be found to have unwarrantably failed to comply with a regulation.
Whayne Supply Co., 19 FMSHRC 447, 452-53 (Mar. 1997).
Not surprisingly, in view of the Secretary's theory of the case, there is no evidence
concerning Independence Coal's supervision, training and disciplining of its employees.
Inasmuch as the Secretary has not shown that the company's supervision, training and
disciplining of its employees was deficient, it must be concluded that the company had taken
reasonable steps to prevent the violative conduct.
In conclusion, the Secretary has not established that either Terral, Gilmour or
Independence Coal was negligent with respect to this violation. Further, the Secretary has not
shown that Barron's negligence, whatever it was, is imputable to the company. Accordingly, I
conclude that the violation of section 75.202(a) was not the result of aggravated conduct on the
part of Independence Coal and, therefore, that the violation was not the result of an
"unwarrantable failure." The citation will be modified to a 104(a) citation, 30 U.S.C. § 814(a).

11 O(c) Violations
The Secretary has charged Terral and Gilmour with being personally liable for this
violation under section llO(c) of the Act. 4 The parties stipulated that both Terral and Gilmour

4

Section l lO(c) provides, in pertinent part, that: ''Whenever a corporate operator
violates a mandatory health or safety standard ... any director, officer or agent of such
corporation who knowingly authorized, ordered, or carried out such violation ... shall be subject
to the same civil penalties ...."
26 FMSHRC 529

were "agents" of Independence Coal. (Jt. Ex. 1, stip. 21 & 22.) The Commission set out the test
for detennining whether a corporate agent has acted "knowingly" in Kenny Richardson, 3
FMSHRC 8, 16 (Jan. 1981), aff'd, 689 F.2d 623 (6th Cir. 1982), cert. denied, 461 U.S. 928
(1983), when it stated: "If a person in a position to protect safety and health fails to act on the
basis of information that gives him knowledge or reason to know of the existence of a violative
condition, he has acted knowingly and in a manner contrary to the remedial nature of the statute."
The Commission has further held, however, that to violate section llO(c) the corporate agent's
conduct must be "aggravated," i.e. it must involve more than ordinary negligence. Wyoming
Fuel, 16 FMSHRC at 1630; Beth Energy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992);
Emery, 9 FMSHRC at 2003-04.
As has already been discussed in the section on "unwarrantable failure," I do not find that
either Terral's or Gilmour's conduct was negligent, much less aggravated. The Secretary has not
proved that the brow existed when Terral conducted his on-shift examination, nor has the
Secretary shown that Gilmour had a duty to return to the No. 5 entry after completing his preshift
examination.5 Therefore, I cannot conclude that they acted knowingly and will dismiss the
citations against them.
Citation No. 7205805
This citation alleges a violation of section 75.220(a)(l) of the regulations, 30 C.F.R.
§ 75.220(a)(l), because:
The approved roof control plan was not being followed in
that reflectors were not placed on the fourth row of bolts outby the
fa~:~; ·~o aid the continuous mining machine operator to detennine
his position for maximum safety during mining operations. The
integrity of the first two rows was destroyed when a bolt was
sheared off in the second row outby the face. A fatal roof fall
accident occurred on 8/27/01. The cited condition or practice
resulted from evidence and information obtained during the fatal
accident investigation that followed.
(Govt. Ex. 2.)6 Section 75.220(a)(l) 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."

5

Terral's and Gilmour's conduct will be discussed more fully in the discussion of
Orders No. 7205807 and 7205808.
6

This citation was modified at the beginning of the hearing from a 104(d)(l) order to a
104(a) citation and the negligence was modified from "reckless disregard" to "high." (Tr. I. 1011.)
26 FMSHRC 530

The company's approved roof control plan provides that: "Two reflectors shall be placed
on the second row of bolts outby the face, on each side of the crosscut, to aid the shuttle car
operators and continuous mining operators in determining their positions for maximum safety
during mining operations." (Jt. Ex. 2, p. 10, no. 16.) It is undisputed that when the investigators
arrived at the accident scene, there were no reflectors hanging in the No. 5 entry. It is also
undisputed that the head and plate of a roof bolt in the second row of bolts had been sheared off,
thus rendering that row of bolts ineffective and making the maximum safety position for the
continuous miner operator outby the fourth row of bolts. Accordingly, based on strict liability,
the operator violated its roof control plan and, thus, section 75.220(a)(l).
Significant and Substantial

The inspector found this violation to be "significant and substantial." I agree for the
following reasons. Applying the Mathies criteria, I have already found that the lack of reflectors
was a violation of the roof control plan. The second criterion is met because without the
reflectors a miner could think it was safe to proceed under what was unsupported roof, exposing
him to the hazard of a roof fall.
The Secretary argues that the third factor is met because: "Had reflectors been properly
placed in the No. 5 entry, it is most likely that Mr. Barron would have been positioned further
outby than where he was struck by the fallen rock brow." (Sec. Br. at 27.) Obviously, this
depends on Barron having been inby the fourth row of bolts when he was struck. The evidence,
however, indicates that he was outby the fourth row of bolts. Davis, who found him, testified
Barron was somewhere between the fourth and fifth row of bolts. (Tr. I. 115.) Terral, who came
in response to Davis' calls for help, said he was outby the fourth row of bolts, with the outby end
of the rock leaning against him. (Tr. II. 274-75.) Finally, the diagram of the scene shows the
rock extending almost halfway between the fourth and fifth row of bolts. (Jt. Ex. 6.) While the
rock may have been moved some in rescuing Barron, it could not have been very far since it
weighed almost 2,000 pounds. (Tr. II. 14, 86.)
Consequently, I do not find that this accident proves that the third factor has been met.
On the other hand, I agree with the Secretary that, "the absence of the reflectors made it more
likely that the victim, or anyone else whom might have been in the entry, would be located inby
the fourth row of bolts and more likely to have been exposed to hazards related to falls of the
roof and ribs." (Sec. Br. at 27.) Hence, combing the fourth and fifth criteria, I find that the lack
of reflectors was reasonably likely to result in reasonably serious injury. Therefore, I find that the
violation was "significant and substantial."
Citation No. 7205806
This citation· also charges a violation of section 75.220(a)(l) in that:

26 FMSHRC 531

The approved roof control plan was not being followed.
The approved roof control plan requires cross-wise spacing of bolts
not to exceed 5 feet and stipulates that under no condition shall any
person proceed inby the next to last row of permanent roof
supports. A bolt in the second row of bolts outby the face in the
number 5 entry was sheared off. This resulted in two of the
remaining bolts in this row being 8 ft. apart. This rendered the last
two rows of bolts ineffective. The fourth row of bolts then became
the next to last row of permanent supports. The continuous mining
machine operator positioned himself inby the fourth row of bolts in
violation of the plan. A fatal roof fall accident occurred on
8/27/01. The cited condition or practice resulted from evidence
and information obtained during the fatal accident investigation
that followed.
(Govt. Ex. 3.)7
The company's roof control plan provides that: "Crosswise spacing of bolts may be 5
feet provided four rows are maintained and bolts do not exceed 4 feet from the ribs." (Jt. Ex. 2,
p. 8, no. 4.) It also states: "Under no conditions shall any person proceed beyond the next to last
row of permanent roof supports." (Jt. Ex. 2, p. 9, no. 5.) As noted above, it is undisputed that a
bolt in the second row outby the face was sheared leaving the second row with an eight foot
space between bolts. Accordingly, while I do not find that the continuous miner operator was
inby the fourth row of bolts, based on strict liability, I find that the company violated its roof
control plan and, in doing so, section 75.220(a)(l).
Significant and Substantial
The inspector found this violation to be "significant and substantial." For the reasons set
out in discussing S&S for Citation No. 7205805, above, I find that this violation was "significant
and substantial."
Order No. 7205807
This order alleges a violation of section 75.360(b)(3), 30 C.F.R. § 75.360(b)(3), because:
An inadequate pre-shift examination was conducted by the
day shift section foreman on the number 1 section on 8/27/2001.
Obvious hazards were not reported or corrected in the number 5
face of the number 1 section. A large rock brow was created by
7

This citation was modified at the beginning of the hearing from a 104(d)(l) order to a
104(a) citation and the negligence was modified from "reckless disregard" to "high." (Tr. I. 11.)
26 FMSHRC 532

shearing of the right rib of the number 5 face of the number 1
section on the day shift. This condition was not reported in the
preshift examiner's log prior to the evening shift starting to work.
This was a contributing factor to a fatal accident.8
(Govt. Ex. 4.) Section 75.360, 30 C.F.R. § 75.360, sets out the requirements for preshift
examinations. Section 75.360(b)(3) requires that:
(b) The person conducting the preshift examination shall
examine for hazardous conditions ... at the following locations:

(3) Working sections and areas where mechanized mining
equipment is being installed or removed, if anyone is scheduled to
work on the section or in the area during the oncoming shift. The
scope of the examination shall include the working places ... and
the examination shall include tests of the roof, face and rib
conditions on these sections and in these areas.
The parties stipulated that "[a] preshift examination of the No. 5 entry on the No. 1
section had been conducted by Bruce Gilmour on August 27, 2001." (Jt. Ex. 1, stip. 25.) It is
undisputed that prior to performing his preshift examination of the No. 5 entry, Gilmour directed
Bailey to "shear the rib, to widen the entry out. And I told him to be real careful. Watch the bolt
spacing. And be sure everything's okay." (Tr. II. 206.) Then, Gilmour proceeded through the
rest of the section, completed his preshift examination, called the results out to the surface and
then left the mine. He did not return to the No. 5 entry.
It is the Secretary's theory that the preshift regulation was violated because, "if the preshift examiner has reason to know of a hazardous condition in an area that was previously
examined, the examiner has an obligation to ensure that such hazardous condition is addressed,
corrected, or adequately recorded." (Sec. Br. at 35.) Significantly, the Secretary does not cite
any regulation or case law to support this assertion. Such a requirement is clearly not set out or
implied in section 75.360(b)(3). Nor does it appear anywhere else in section 75.360. Indeed, in
response to the question, "isn't it true that Mr. Gilmour was not required by the preshift
examination regulation to go back to the No. 5 entry," Braenovich answered: "Correct." (Tr. II.
64.)
Preshift examinations are required to be performed within three hours preceding an
oncoming shift. 30 C.F.R. § 75.360(a)(l). It follows then that a preshift examination can be

8

This order was modified at the hearing to insert this language in place of the language
in the original order. (Tr. I. 11-12.)
26 FMSHRC 533

started within three hours before the ongoing shift ends. This plainly contemplates that mining
will proceed after a preshift examination has begun and, depending on how long the examination
takes, after it has been completed. Any number of hazardous conditions could result from the
continued mining, yet the regulation says nothing about rechecking areas where further mining is
performed.
Moreover, the Secretary has not shown that sheanng the rib was a particularly hazardous
procedure. Braenovich admitted that when an entry is too narrow or off-center, it is part of the
normal mining cycle to shear the rib to widen the entry and get it back on center. (Tr. IL 85.)
Terral testified that if the miner operator determines that an entry is off-center, he has the
authority on his own to shear the rib to straighten the entry. (Tr. II. 265.) Hill, who at the time of
the accident was superintendent of the Justice Mine, but who two months before had been
superintendent at Cedar Grove, agreed. (Tr. II. 141.) Bailey testified that he was aware that
shearing the rib might require some spot bolting and he had roof bolters standing by in case he
needed them. (Tr. I. 72-73.) Similarly, when a miner operator mines an entry he also has roof
bolters standing by. In short, shearing the rib in this situation was not anything out of the
ordinary. Thus, even assuming arguendo that the Secretary's theory is correct, there was no
reason for Gilmour to expect that anything unusuaUy hazardous was being done.
To sum up, there is no requirement in section 75.360 that a preshift examiner revisit areas
he has already examined. Furthermore, even if the Secretary's implied addition to the regulation
were reasonable, there was nothing in this situation to put the examiner on notice that anything
other than normal mining was being performed.9 Accordingly, I find that the operator did not
violate the regulation and will vacate the order.
I I O(c) Violation

The Secretary seeks to hold Gilmour personally liable for this violation. During the
hearing, at the close of the Secretary's case, I granted Gilmour' s motion to dismiss this charge.
(Tr. II. 114.) With her brief, the Secretary has filed a motion requesting that I reconsider that
decision. In effect, my discussion of this violation has done that.

I find no violation of this regulation. Therefore, there is nothing for which Gilmour can
be held personally liable. I affirm my original ruling and dismiss this allegation.
Order No. 7205808
This order alleges a violation of section 75.362(a)(l), 30 C.F.R. § 75.362(a)(l), because:

9

The Secretary has also not established that there were any hazardous conditions to
observe, even if Gilmour had returned to the No. 5 entry.
26 FMSHRC 534

An inadequate on-shift examination was conducted in the
number 5 entry of the number 1 section by the evening shift section
foreman. Date: 8/27/01, time: 3:52 PM, and initials: F. T. of the
examiner were present at the accident scene. Obvious hazards
were not corrected prior to the continuous mining machine
operator commencing mining in the number 5 face. A large
unsupported rock brow was created by the day shift shearing of the
right rib in the number 5 entry. This condition should have been
observed and corrected by the section foreman prior to mining the
number 5 face. A fatal roof fall accident occurred on 8/27/01. The
cited condition or practice resulted from evidence and information
obtained during the fatal accident investigation that followed.
(Govt. Ex. 5.) Section 75.362(a)(l) provides that: "At least once during each shift, or more
often if necessary for safety, a certified person ... shall conduct an on-shift examination of each
section where anyone is assigned to work during the shift . . . . The certified person shall check
for hazardous conditions . ..."
As should be evident by now, the Secretary has not proven that the rock brow was in
existence when Terral was performing his on-shift examination. To reiterate, Bailey testified that
after he sheared the right rib in the No. 5 entry there was no rock brow, there was no sheared roof
bolt and the reflectors where hanging from the second row of roof bolts. (Tr. I. 72-74, 83, 93.)
Terral testified that when he examined the No. 5 entry during his on-shift examination there was
no rock brow, there was no sheared bolt, the reflectors were hanging from the second row of roof
bolts and the designated scaler did not report any problems to him. (Tr. II. 252-56, 293, 304.)
Finally, Davis testified that he did not recall noticing whether there was a brow, a sheared bolt or
reflectors. (Tr. I. 118,127.) The Secretary has offered nothing except theory and inferences on
top of inferences to rebut this testimony.
I conclude that the Secretary has not proven that Terral conducted an inadequate on-shift
examination. Consequently, I conclude that the operator did not violate section 75.362(a)(l) as
alleged and will vacate the order.

llO(c) Violation
The Secretary has attempted to hold Terral personally liable for this violation. However,
since the Secretary has failed to prove the violation, it follows that 11 O(c) liability cannot attach.
Therefore, I will dismiss this charge.
Conclusion
Because they existed at the time of the accident investigation, and because of strict
liability, the Secretary has proved three violations against the operator. However, jumping from
26 FMSHRC 535

the known, the Secretary has surmised that the violative conditions existed when Bailey finished
working in the No. 5 entry and when Terral performed his on-shift examination. Based on this
conjecture, she has then concluded that the operator and Gilmour and Terral were either "highly"
negligent or acted with "reek.less disregard" in connection with this accident.
Distressingly, the Secretary has presented little or no evidence to support this speculation,
relying instead on "bootstrapping" inferences. Against this, the company has presented the
testimony of four miners, two were actually called by the Secretary, who clearly refute the
Secretary's case. Nonetheless, faced with this strong refutation, the Secretary has not even
challenged the witnesses credibility, with the exception of the half-hearted attempt concerning
Bailey. Indeed, their credibility is not even discussed in the Secretary's brief.
Aware that Gilmour and Terral, and to a lesser extent Bailey, have a pronounced interest
in the outcome of this case, I, nevertheless, find them to be credible. Their testimony was not
inherently incredible. It was consistent with the factual evidence. Their manner and demeanor
while testifying did not indicate any evasiveness, dissembling or equivocation. Once their
testimony is accepted, the Secretary's theory of high negligence and reek.less disregard must fail.
Accordingly, I conclude that the operator committed a violation of section 75.202(a) and
two violations of its roof control plan under section 75.220(a)(l), but did not violate sections
75.360(b)(3) or 75.362(a)(l). I further conclude that the violation of section 75.202(a) was not
the result of an "unwarrantable failure" on the part of the operator. Finally, I conclude that
neither Gilmour nor Terral are personally liable for any of the violations with which they have
been charged.
Civil Penalty Assessment

The Secretary has proposed a penalty of $55,000.00 for each of the three violations that I
have found the company to have committed. 10 However, it is the judge's independent
responsibility to determine the appropriate amount of penalty in accordance with the six penalty
criteria set out in section llO(i) of the Act, 30 U.S.C. § 820(i). Sellersburg Stone Co. v.
FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481,
483-84 (Apr. 1996).
In connection with the penalty criteria, the parties have stipulated that the maximum
penalty in this case will not affect the ability of Independence Coal to remain in business. (Jt.
Ex. 1, stip. 4.) Based on the Proposed Assessment Data Sheet, I find that Cedar Grove is a
medium size mine and that Massey Energy is a very large company. (Govt. Ex. 6.) Based on the
Proposed Assessment Data Sheet and the Assessed Violation History Report, I find that

10

As counsel for the Secretary recognized, the proposed penalties for Citation Nos.
7205805 and 7205806 are no longer valid in view of the citations' modification at the hearing.
(Tr. I. 25.) Nonetheless, the Secretary has not proposed any new penalties for these violations.
26 FMSHRC 536

Independence Coal's history of previous violations is slightly better than average: (Govt. Exs. 6
& 7.) Based on the citation forms, I find that the company demonstrated good faith in attempting
to achieve rapid compliance after notification of the violations. (Govt. Exs. 1-.3.)
A death occurred as a result of these violations. Therefore, I find that the gravity of the
violations was very serious.
Finally, turning to negligence, I find that the company was not negligent in connection
with any of the three violations. I make this finding based on the Secretary's failure to prove that
either Gilmour or Terral performed inadequate examinations, or were otherwise aware of the
violations, or that anyone else in a supervisory capacity with the company was aware of the
violations. That being the case, since, as discussed above, the negligence of a rank-and-file
miner cannot be imputed to the operator, I find that Independence Coal was not negligent.
Taking all of these factors into consideration, I assess a penalty of $10,000.00 for each
violation. In addition, in accordance with the settlement agreement, I assess a penalty of
$4,750.00 for Citation No. 7205803 in Docket No. WEVA 2002-144.

Order
In view of the above, with regard to Docket No. WEVA 2002-138 and contest Docket
Nos. WEVA 2002-27-R, WEVA 2002-28-R, WEVA 2002-29-R, WEVA 2002-30-R and WEVA
2002-31-R, Citation No. 7205804 is MODIFIED from a 104(d)(l) citation to a 104(a) citation ,
by deleting the "unwarrantable failure" designation, and is further MODIFIED by reducing the
level of negligence from "reckless disregard" to "none" and is AFFIRMED as modified;
Citation No. 7205805 is MODIFIED by reducing the level of negligence from "high" to "none"
and is AFF1RMED as modified; Citation No. 7205806 is MODIFIED by reducing the level of
negligence from "high" to "none" and is AFFIRMED as modified; Citation Nos. 7205807 and
7205808 are VACATED and Docket Nos. WEVA 2002-30-R and WEVA 2002-31-R are
DISMISSED. With regard to Docket No. WEVA 2002-144 and contest Docket Nos. WEVA
2002-5-R and WEVA 2002-6-R, Citation No. 7205803 is MODIFIED, in accordance with the
agreement, by reducing the level of negligence from "high" to "moderate" and is AFFIRlVIED as
modified and Docket No. WEVA 2002-5-R, in accordance with the Respondent's motion, is
DISMISSED. Finally, Docket Nos. WEVA 2003-188 and WEVA 2003-189 are DISMISSED.
Independence Coal Company, Inc., is ORDERED TO PAY civil penalties of $34,750.00
within 30 days of the date of this order.

1r~~
Administrative Law Judge

26 FMSHRC 537

Distribution: (Certified Mail)
David J. Hardy, Esq., Spillman, Thomas & Battle, PLLC, Spillman Center,
300 Kanawha Boulevard East, P.O. Box 273, Charleston, WV 25321
Robert S. Wilson, Esq., Francine A. Serafin, Esq., Office of the Solicitor,
U.S. Department of Labor, 1100 Wilson Blvd., 22°ct Floor West, Arlington, VA 22209
Robert B. Allen, Esq., Allen, Guthrie, McHugh & Thomas, PLLC,
Bank One Center, Suite 1300, 707 Virginia Street, East, P.O. Box 3394, Charleston, WV 25333

26 FMSHRC 538

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE O F ADM INISTRATIVE LAW J UDGES
601 NEW J ERSEY AVENU E, N.W., SUITE 9500
WASHINGTON, D.C. 20001
June 18, 2004
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 2002-116
A.C. No. 36-00970-04252

UNITED MlNE WORKERS OF
AMERICA, LOCAL 1248, DISTRICT 2,
SUB-DISTRICT 5,
Intervenor
v.

MAPLE CREEK MINING, INC.,
Respondent
STEVE BROWN, Employed by Maple
Creek Mining, Inc. ,
Respondent

Docket No. PENN 2003-54
A.C. No. 36-00970-04285 A

ALVY WALKER, Employed by Maple
Creek Mining, Inc.,
Respondent

Docket No. PENN 2003-55
A.C. No. 36-00970-04286 A

GREG MIU.ER, Employed by Maple
Creek Mining, Inc. ,
Respondent

Docket No. PENN 2003-56
A.C. No. 36-00970-04287 A
Maple Creek Mine

DE CISION
Appearances: Maureen A. Russo, Esq., Mark V. Swirsky, Esq., Office of the Solicitor, U. S.
Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
Leon J. Moscalink, Jr., Chairman, Mine Safety & Health Committee, Local Union
1248, United Mine Workers of America, Greensburg, Pennsylvania, for
Intervenor;
Marco M. Rajkovich, Jr., Esq., Noelle M. Holladay, Esq. , Wyatt, Tarrant &
Combs, LLP, Lexington, Kentucky, for Respondents.
Before:

Judge Bulluck
26 FMSHRC 539

These cases are before me upon Petitions for Assessment of Penalty filed by the Secretary
of Labor ("the Secretary"), through her Mine Safety and Health Administration ("MSHA"),
against Maple Creek Mining, Incorporated ("Maple Creek"), and its employees Steve Brown,
Alvy Walker1 and Greg Miller, pursuant to sections 105(d), llO(a) and llO(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815(d), 820(a) and 820(c). The petition
respecting Maple Creek seeks to impose a civil penalty of $9,500.00 for an alleged violation of
the Secretary's mandatory safety standards governing underground coal mines.2 The petitions
respecting Maple Creek's employees seek imposition of individual penalties of $1,000.00 against
Brown, $500.00 against Walker, and $500.00 against Miller for allegedly authorizing, ordering
or carrying out the violation for which Maple Creek is charged.
The United Mine Workers of America (" the UMWA"), Local 1248, District 2, SubDistrict 5, was joined as an intervening party to the proceedings. A hearing was held in
Pittsburgh, Pennsylvania. The parties Post-hearing Briefs and Respondent's Reply Brief are of
record. The UMWA waived its right to file a brief. For the reasons set forth below, I AFFIRM
Order No. 7082507, and assess penalties against all Respondents.

I. Stipulations
The parties stipulated as follows:
1. The Maple Creek Mine is owned and operated by Respondent in this case, namely
Maple Creek Mines, Inc.
2. The Maple Creek Mine is subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977.
3. A duly authorized representative of the Secretary served the order and termination of
the order upon the agent of the Respondent at the date and place stated therein, and the order and
termination may be admitted into evidence to establish their issuance.
4. The presiding Administrative Law Judge has jurisdiction over these proceedings
pursuant to sections 105 and llO(c) of the Act.

1

Respondent Walker's name is incorrectly spelled in the Petition for Assessment of
Civil Penalty as "Alvie." Documents in evidence signed by Walker indicate that the correct
spelling is "Alvy."
2

Docket PENN 2002-116 originally contained 12 citations/orders. By Decision
Approving Settlement of August 11, 2003, settlement of 11 was approved. Consequently, only
Order No. 7082507 is the subject of this hearing.
26 FMSHRC 540

5. The parties stipulate to the authenticity of their exhibits, but not to the truth or the
relevance of the matters asserted therein.
6. The imposition of the proposed civil penalty against Maple Creek Mining, Inc. will
not affect Maple Creek's ability to remain in business.
7. Respondent Steve Brown has the financial ability to pay the proposed penalty of
$1,000.00.
8. Respondent Greg Miller has the financial ability to pay the proposed penalty of
$500.00.
9. Respondent Alvy Walker has the financial ability to pay the proposed penalty of
$500.00.
10. On August 9, 2001, water was present in the intake escapeway of the 4 West section in
varied depths and extended for approximately 420 feet.
11. The water in the intake escapeway on the 4 West section had been present in varied
amounts for approximately two weeks prior to August 9, 2001.
12. Respondent was aware that water in the intake escapeway in the 4 West section had
been present in varied amounts for approximately two weeks prior to August 9, 2001.
13. In accordance with Respondent's assessed violation history, Respondent received 18
citations for violation of 30 C.F.R. § 75.380(d)(l) from August 1, 1999, through August 9, 2001.

II. Factual Background
Maple Creek owns and operates the Maple Creek Mine, an underground bituminous coal
mine in Washington County, Pennsylvania. The mine is wet, with depressions that fill up with
water percolating from underground, and seeping through the coal seam and the mine roof.
Tr. 508, 632, 664-65. Between 1.2 and 2 million gallons of water are pumped from the mine
daily. Tr. 742-43. On the 4 West section, the track entry, ventilated with intake air, is the
primary escapeway. The adjacent travelway, ventilated with return air, is the secondary
escapeway. During the time period relevant to this case, the track in the primary escapeway
ended around crosscut 15 or 16. Scoops routinely traveled up and down the primary escapeway
transporting supplies from the end of the track to the working face at about crosscut 30, creating
holes or "ruts" in the travelway. Tr. 115, 124. Running along the right rib was a "cow path" no
wider than about 12 inches, where the work crews walked from the end of the track to their work
stations at the face. Tr. 119.

26 FMSHRC 541

On July 30, 2001, Pennsylvania Mine Inspector Dennis Walker conducted a regular
quarterly inspection of the Maple Creek Mine, accompanied by Steve Brown, section coordinator
on 4 West. Tr. 31-32, 40. At 12:30 that afternoon, Inspector Walker issued a Compliance Order
for water accumulation in the 4 West section between crosscuts 24 and 25, rib to rib, 12 inches in
depth spanning 40 to 50 feet, that created slippery walking conditions. Ex. G-1; tr. 33-34. The
Compliance Order required Maple Creek to remove the water or pump it to a reasonable depth by
8:00 the next morning. Walker did not actually make a physical inspection of the area for
compliance, but was told by Brown and Greg Miller that the water had been removed by
pumping. Tr. 37, 57-58. Accordingly, he terminated the Compliance Order on August 14, 2001.
Ex. G-1at2.
On August 9, 2001, ten days after the Compliance Order had been issued, Mine Safety
and Health Adniinistration ("MSHA") Inspector James Dickey conducted a regular Triple-A
inspection at Maple Creek. While still on the surface, Dickey encountered MSHA Inspector
George Rantovich in a discussion with UMWA safety committeemen Thomas Sutton and Jim
Constable. Ex. G-3. The topic was the oxygen content in the bleeder entries and water in the
mine. Sutton told the inspectors that the water problem had existed for some time, that it was not
being recorded consistently in the preshift examination book, and that nobody was doing
anything about it. Dickey agreed to take a look at the 4 West section. Tr. 67-68, 231-35. Dickey
then reviewed the preshift and onshift record books for 4 West dating back, at least, to July 31,
2001. Tr. 235-39; ex. G-8. Dickey and the miners accompanying him, Paul Henry and Robert
Maust, went down into the mine and traveled to 4 West. Tr. 105, 239-40. Upon entering the
section through the air-locked doors on the track and proceeding inby, the men began to
encounter water. Tr. 240-41. Initially using his walking stick, Dickey determined that the
accumulation was extensive, deep, mucky, and very difficult to walk in. Tr. 240-41, 243. He
took measurements across the entry as he continued out to the track, and determined the muck to
be the consistency of pig slop, varying in depth up to 17 inches. Tr. 240-43. Consequently, he
put the mine on notice that he would be issuing a withdrawal order. Tr. 243-44. Dickey and
Henry, traveling the entry together between crosscuts 24 and 27, then out to the track, took
extensive measurements and drew maps that were essentially identical. Tr. 249-50, 109-10. As a
result of his observations, Dickey issued 104(d)(2) Order 7082507 at 1:15 that afternoon,
withdrawing miners from the face and charging a violation of 30 C.F.R. § 75.380(d)(l),
describing the violation as follows:
The intake escapeway on the 4 West section is not being maintained in
safe condition to always assure passage of anyone, including disabled persons in
that, there was an accumulation of black water and mucky water which measured
17 inches deep and extended for a distance of approximately 420 feet in length
from just outby No. 24 crosscut to just outby No. 27 crosscut. This escapeway
could not be traveled safely by miners on this section due to this water. There
were also numerous large holes under this water at unknown locations which
created hazards. These conditions would make travel with an injured miner on a
stretcher impossible.
26 FMSHRC 542

These conditions have existed for approximately 2 weeks and have been
listed in the preshift examination record book for at least 1 week without being
corrected. Management was aware of this condition and made very little effort if
any to correct this condition. There was no visible work being done to correct this
condition upon my arrival and discussions with various miners and officials on
this section did not reveal any attempts to correct this condition"
Ex. G-9. 3
It took Maple Creek approximately 16 hours to abate the condition, by building a six-foot
wide bridge over the water, the entire length of the accumulation. Tr. 251-53. Dickey terminated
the Order at 5:45 a.m. on August 10, 2001. Ex. G-9 at 3.

III. Findings of Fact and Conclusions of Law
A. Fact of Violation
30 C.F.R. § 75.380(d)(l) requires that "[e]ach escapeway shall be maintained to always
assure passage of anyone, including disabled persons."
The Commission, in looking to the legislative history of the Act for guidance in
ascertaining the requirements for safe passage of miners, has relied upon Congressional
recognition of the importance of maintaining separate and distinct travelable escapeways that are
maintained in safe condition. Consolidation Coal Co., 15 FMSHRC 1555, 1557 (August 1993).
Consistent with Congressional intent, section 75.380(d)(l) requires that each escapeway be safely
maintained to always allow for passage of anyone. The Commission has also determined that the
language of section 75.380(d)(l) is "plain and unambiguous" and imposes on operators a duty to
maintain escapeways that satisfy a general functional test of "passability." Utah Power & Light
Company, 1 lFMSHRC 1926, 1930 (October 1989). In determining the ultimate question of
whether the standard has been violated, each case must be examined on its own facts. Harlan
Cumberland Coal Co., 19 FMSHRC 911, 916 (May 1997); Jim Walter Resources, Inc., 16
FMSHRC 1264, 1268 (June 1994).
The parties have stipulated that the water accumulation in the primary escapeway on
August 9, 2001, varied in depth, extended approximately 420 feet, and had existed for
approximately two weeks. Stips. l 0, 11. There is disagreement, however, as to whether the
condition of the escapeway, between crosscuts 24 and 27, permitted safe travel for all miners.
Maple Creek takes the position that the cited area was passable, since miners on every shift

3

Maple Creek's "D chain," not challenged by Respondent, began with 104(d)(l)
Citation No. 7082131, issued on June 28, 2001, and 104(d)(l) Order No. 3670250, issued on
June 29, 2001. Ex. G-12; tr. 801.
26 FMSHRC 543

passed along the cow path, traveling to and from the face, and that a stretcher could have been
carried through the escapeway. Resp. Br. at 4-5. It argues that it is in a constant battle with
water in the mine and that, in its judgment, the cited accumulation did not pose a hazard.
Furthermore, the company maintains that an injured miner could have been transported through
the primary escapeway on a scoop rather than a stretcher, and that the return entry and beltline
were accessible alternative routes.
The Secretary presented the testimony of several witnesses to establish the obstructed
condition of the primary escapeway.
Inspector Dickey testified that the consistency of the accumulation was a mucky, sloppy
mix that was difficult to walk in. Tr. 242-43; ex. G-10. He justified his reason for concluding
that the water created a likelihood of a disabling injury by explaining that it was impossible to
see the bottom of the entry through the thickness and depth of the muck, and that a miner could
"twist an ankle, a leg, a hip, break a bone, tear a tendon, injure their back .... a number of things
that can happen to them just from walking through an area like this that contains this type of
holes and other obstructions on the mine floor." Tr. 257-58. Dickey characterized the condition
that he encountered on 4 West as "one of the wors[t] conditions I had ever seen an escapeway in
... any coal mine since I've been inspecting. I mean this was awful. There was absolutely no
excuse for it .... " Tr. 259.
Robert Maust was a continuous miner operator on the 4 West section during the period in
controversy. Tr. 99. Maust testified that the water on the section had existed for close to a week
prior to Dickey's inspection, that he had no recollection of the water level receding during that
time, and that the miners on the day shift had complained to section foreman Alvy Walker, to no
avail. Tr. 104, 111, 134-35; ex. G-4. In fact, Maust stated, he had complained about the water to
his safety committeeman. Tr. 131. Maust described the water on the section as mucky, and
estimated it to have spanned 400 feet between crosscuts 21 to 24, from rib to rib for half that
distance. Tr. 99-100, 117. Where the water reached the ribs, he stated, it was about 6 inches
deep, except for where there were holes in the bottom. Tr. 119. He testified that his crew,
including the foreman, would get to the working face each morning by traveling by car to
crosscut 15 or 16 where the track ended, then walking 12 blocks or so inby to crosscut 30.
Tr. 100-02. According to him, "there was only one way to get by there was just a little patch up
along the rib. And you had to watch because your foot would slide down into one of the holes or
into the water. And it wouldn't be very pleasant. Some places it would be over your boots ...."
Tr. 103. Maust traveled with Dickey and Brown on August 9. He testified that when the
inspection team came upon the water, he, Maust, walked along the rib, while Dickey walked
through the center of the escapeway and stepped in several holes where the water level was over
the top of his 15-inch boots. Tr. 107-08, 114-17. It was after Dickey took measurements of the
water with a folding ruler, Maust stated, that he issued the withdrawal order. Tr. 108-09. Maust
maintained that he had slipped in the mud a few times. He opined that it would not have been
possible to carry a stretcher along the rib, and it would have been very difficult to have carried it
through the middle of the escapeway because of the slippery conditions. Tr. 121-23.
26 FMSHRC 544

Roof bolter operator John Gargala worked the midnight shift under foreman Greg Miller
between July 30 and August 9. Gargala testified that miners had been dealing with water
accumulation in the 4 West track entry for better than a week, and that it appeared to stay at the
same level. Tr. 148-51; ex G-5. By his estimation, at the end of the shift on the morning of
August 9, the water was roughly 17 inches deep, from rib to rib, causing the miners to walk along
the rib in order to avoid water higher than the top of their boots. Tr. 137-38, 146. Gargala
related that he sustained injuries to his wrist and back when he slipped and fell at the end of his
shift. Tr. 138-39; ex. 16.
Trackman Gerald Kosco was a day shift roof bolter on 4 West during the relevant period.
He testified that, for a week or more, the water at the end of the track was a slippery slurry that
prevented viewing the bottom and stretched two or three blocks, rib to rib. To get to and from
the face, he stated, the crew would walk along the cow path in order to avoid slipping and falling
in the deep part of the water. Tr. 153-56; ex. G-6. He estimated the water to have varied in
depth from 6 to 14 inches. Tr. 176-77. According to Kosco, miners complained daily to Alvy
Walker, who responded that Maple Creek was working on it. Tr. 157. Kosco testified that he
did not see the water go down during the time the miners were required to walk through it.
Tr. 157-58. He described the uneven bottom as littered with coal that had sloughed off the ribs,
posing a tripping hazard. Tr. 158-59. In his opinion, a stretcher could not have been carried
along the cow path, and it was improbable that it could have been carried through the primary
escapeway, because of the deep water and its slippery condition. Tr. 151-52.
Miner operator John Baluh worked on the midnight shift on 4 West between July 30 and
August 9. He testified that, for at least a week, his crew was required to walk through water
accumulation on the section that was "black and dirty, muddy," extended about three blocks, and
varied in depth from 6 to 8 inches along the cow path to as high as his 25-inch boots. Tr. 19720 l, 207, 209; ex. G-7. He stated that the water level stayed the same during that period, and
described the bottom as having ruts made by equipment running through the area. Tr. 200, 20304, 206, 208. The uneven bottom, he concluded, invisible through the muddy water, made for
slippery walking conditions. Tr. 202. According to Baluh, he and other miners complained
about the condition. Tr. 202-03. Finally, Baluh opined that the cow path was too narrow to
accommodate men wielding a stretcher. Tr. 213.
Richard Cline, also testifying for the Secretary, expressed a contrary opinion of the
conditions in the track entry. He testified that, as shift foreman, he was in charge of the entire
mine and responsible for visiting every working section each day. Tr. 586. He stated that he was
called to 4 West on August 9, because of Dickey's Withdrawal Order, but was unable to recall
what the conditions looked like on that day. Tr. 582-83, 587, 590; ex. G-15. According to Cline,
if the water level was not over the top of his 16-inch boots, he would not consider the
accumulation to be hazardous. Tr. 598. In his opinion, a stretcher could have been carried safely
through the primary escapeway under the cited conditions and, if a miner were severely injured,
he would have hauled him on a scoop. Tr. 599-602.

26 FMSHRC 545

Maple Creek's description of the water accumulation between crosscuts 24 and 27 did not
vary substantially from the Secretary's, but the company's witnesses presented their view that the
area was passable and not hazardous.
Steve Brown was fill-in section coordinator on August 9. He testified that he had
traveled along the rib on 4 West to the face, where he learned from Inspector Dickey and face
boss Alvy Walker that the section had been shut down. Tr. 491, 499-500, 508-09. Brown opined
that he could have carried a stretcher through the cited area, but added that he would have used
the alternate escapeway before traveling through the deep water on the track entry. Tr. 497-98.
When asked whether he could have carried a disabled miner through the primary escapeway,
Brown asserted that he would have transported the miner on a scoop. Tr. 506-07. Finally,
Brown opined that, as long as the secondary escapeway is open, water, even slurry, is not a
concern in the primary escapeway; it would have to be waist deep - two to three feet high - in his
judgment, before he would consider it hazardous. Tr. 550-54.
Day shift section foreman on 4 West, Alvy Walker, explained that water constantly
percolates from the bottom into the mine, and settles in the cited area because of a gradual
elevation drop. Tr. 632-33, 664-65. In its best condition, he testified, there are two to three
inches of water in the area; it is never dry. Tr. 665. Walker ·stated that he and his crew traveled
along the right rib to the working face on the morning of August 9. He acknowledged that the
bottom could not be seen along the affected area because it was "slurried up," and that there were
holes in the mine floor. Tr. 659-60. He personally observed water seeping from the return back
into the track entry, and sent two members of his face crew to repair one of the broken pumps in
the return. Tr. 649-52. He stated that he learned of the Order when Inspector Dickey informed
him at the face. Tr. 621-22. According to Walker, the cited area was "walkable," he had
traveled through it numerous times and, because the entry was 9 Vi feet high, the water did not
pose a hazard. Tr. 629-30. Walker opined that he would have put a miner injured at the face on
a scoop, although a stretcher could have been safely carried through the muddy area with no
problem. Tr. 630-31, 645, 660-61. He also acknowledged that he had received complaints from
miners about the water. Tr. 645.
Production coordinator Greg Miller was the midnight shift section foreman on 4 West
during the pertinent period. He testified that Maple Creek had been managing water on 4 West
since mining had begun on the section. Tr. 678-79. He would not give his opinion as to the
depth of water that would constitute a hazard since, he asserted, it is a judgment call that depends
on the variable conditions surrounding the accumulation and the availability of the secondary
escapeway. Tr. 689-94. He was adamant that the regulation does not specify to what degree
water constitutes a hazard. Tr. 686, 692, 694, 711, 728-29. He testified that on August 9, he and
his crew traveled together to and from the working face. Tr. 670, 674-75. In his opinion,
carrying a stretcher or running a scoop through the accumulation from crosscuts 24 to 27 would
not have been a problem. Tr. 671.

26 FMSHRC 546

As Maple Creek's assistant mine foreman on August 9, Paul Henry accompanied
Inspector Dickey during his inspection of the mine. He testified that he did not consider the
water accumulation on 4 West between crosscuts 24 and 27 to be hazardous, because the miners
were able to travel along the right rib. Tr. 734-35, 794; ex. G-17. He did state, however, that he
was not pleased with the condition, which he described as a very thick, dark slop, from rib to rib
in some areas, caused by equipment tramming through the travelway mixing fire clay and coal
with the water. Tr. 741-42, 747, 770-71, 776. When asked whether a disabled miner could have
been transported through the area, he responded that miners would have made it through, because
they are pretty resourceful. Tr. 735. On cross-examination, Henry estimated that it takes two
hours to walk through the primary escapeway from the face to the mouth of the mine, and
conceded that the cited condition would have slowed a person down. Tr. 786-88.
A review of the record indicates that the primary escapeway on the 4 West section was
not maintained in a safe condition that would permit passage of all persons. From the time of
Walker's Compliance Order to Dickey's Withdrawal Order, despite pumping efforts alleged by
Maple Creek, work crews were routinely forced to use the narrow cow path along the right rib, in
order to avoid the 6-17 inch deep muck accumulated between crosscuts 24 and 27. It is not
arguable that the primary escapeway was the fastest and safest way to evacuate the mine in an
emergency, and the muck created a slip and fall hazard that precluded swift passage. It is
obvious that the cow path was too narrow to accommodate a team with a stretcher. Moreover,
negotiating a stretcher through the slippery, rutted bottom in the center of the escapeway would
have endangered the safety of the carriers and delayed medical attention to an injured miner.
Therefore, it is clear that the primary escapeway did not satisfy the passability test in Utah
Power. I have taken into account earnest testimony from Maple Creek that its miners would
make their way through any condition in order to get an injured coworker out of the mine. This
level of brotherhood makes it all the more important that miners not be confronted with risking
life and limb to come to the aid of each other. I reject Maple Creek's argument that a scoop
could have been used to transport a disabled miner through the cited area, as no evidence has
been presented that this is a safe means of transporting persons with injuries. In fact, Inspector
Dickey suggested otherwise. Tr. 302-04. Because accessibility of the return entry and the
beltline does not excuse Maple Creek's duty to maintain each escapeway in the safe, passable
condition contemplated by the standard, I reject the company's reliance on those alternatives to
the primary escapeway and find that section 75.380(d)(l) was violated, as alleged.

B. Significant and Substantial
Inspector Dickey determined that the violation was "significant and substantial" ("S&S").
Section 104(d) of the Act designates a violation S&S when it is "of such nature as could
significantly and substantially contribute to the cause and effect of a coal or other mine or safety
hazard." 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 Division, National Gypsum Co.,
26 FMSHRC 547

3 FMSHRC 822, 825 (April 1981).

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set forth four
criteria that the Secretary must establish in order to prove that a violation is S&S under National
Gypsum: 1) the underlying violation of a mandatory safety standard; 2) a discrete safety hazardthat is, a measure of danger to safety - contributed to by the violation; 3) a reasonable likelihood
that the hazard contributed to will result in an injury; and 4) a reasonable likelihood that the
injury in question will be of a reasonably serious nature. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99, 10304 (5th Cir. 1988), affg 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
Evaluation of the third criterion, the reasonable likelihood of injury, should be made in the
context of "continued 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 the violation." Texasgulf, Inc., 10 FMSHRC 498, 501(April1998); Youghiogheny
& Ohio Coal Co., 9 FMSHRC 2007 (December 1987).
Applying the Mathies criteria to this case, I have found a violation and that Maple
Creek's failure to maintain the primary escapeway in passable condition deprived miners of the
most effective means of evacuation and created a slip and fall hazard. Considering that fire or
explosion is a constant danger in continued normal mining operations, it is apparent that there
was a reasonable likelihood that the hazard contributed to - impeding swift evacuation - would
result in injuries of a reasonably serious nature, ranging from sprains and strains to death. The
record indicates that Maple Creek had been experiencing methane and ventilation problems in
the mine when Dickey issued the Withdrawal Order. Tr. 370-73,789-90; ex. G-17. Furthermore,
at the end of the midnight shift before the Order was issued, John Gargala had slipped and fallen
in the cited area, sustaining a sprained wrist and strained back. Tr. 138-42. It is clear, then, that
the availability of alternative escapeways does not moderate the S&S nature of the violation,
especially since the primary escapeway is the fastest route out of the mine and is ventilated with
intake air. Tr. 186. Accordingly, I find that the violation was S&S.

C. Unwarrantable Failure
"Unwarrantable failure" is aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001(December1987). 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 (February 1991); see also Buck Creek Coal, 52 F.3d at 136
(approving the Commission's unwarrantable failure test). The Commission has 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
26 FMSHRC 548

Consolidation Coal Co., 22 FMSHRC 328, 331(March2000); Mullins & Sons Coal Co.,
16 FMSHRC 192, 195 (February 1994). The Commission has also considered whether the
violative condition is obvious, or poses a high degree of danger. Windsor Coal Co.,
21FMSHRC997, 1000 (September 1999) (citing BethEnergy Mines, Inc., 14 FMSHRC 1232,
1243-44) (August 1992); Warren Steen Constr., 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 (August 2001) (citing Consol, 22 FMSHRC at 353).
Pennsylvania Mine Inspector Walker testified that on July 30, he encountered water
accumulation on the 4 West section in the intake escapeway between crosscuts 24 and 25, rib to
rib for approximately 40 to 50 feet, varying in depth up to 12 inches. Tr. 34-36. Ten days later,
on July 9, MSHA Inspector Dickey encountered water in the same location, extending from
crosscut 24 and 27, for approximately 420 feet. Stip. 10. The parties have stipulated that the
water accumulation had existed in varying amounts for approximately two weeks prior to
Dickey's inspection. Stip. 11. It is clear, therefore, that over the ten-day period between the state
and federal inspections, the water accumulation had advanced two crosscuts and, when cited by
Dickey, was extensive.
Maple Creek contends that it had been actively maintaining its escapeways by use of a
pumping system that utilized air pumps and a series of knee high sump pumps.4 Tr. 466-68.
According to Steve Brown, four air pumps had been installed on 4 West, sometime in July 2001
after Walker's Compliance Order, to draw water off different areas of the section. He testified
that one pump was situated at crosscut 26 on the beltline, another was at crosscut 26 in the return,
and two pumps were situated at crosscut 27 in the return. See Tr. 386-410. On August 9, knee
high sump pumps had been built at crosscuts 5, 12 and 19. Tr. 399-400. Brown testified that
each shift has an outby boss and two-man crew whose sole duty is to "de-water" the section.
Tr. 466-68. He stated that pumping and pump maintenance was a constant in the mine, and that
each shift had been battling the water on the section from its inception. Tr. 421-68; ex. R-3.
Brown maintained that, the morning following Walker's Compliance Order, he observed that the
water had been pumped off the section. Tr. 504-05. So, too, had water been pumped off the
section during the midnight shift preceding Dickey's inspection, according to Brown, but two air
pumps had gone down during that shift, causing the water to run back onto the track entry; outby
crews on the midnight and day shifts had been working on the pumps in the return. Tr. 411-19;
488-92. For the reasons that follow, I reject these assertions and conclude that, from the time of
the Compliance Order to the Withdrawal Order, the water in the cited area remained at a level
that continuously prevented safe travel by all persons through the primary escapeway.

4

Brown explained that knee high sump pumps consist of walls built knee high,
projecting 8 to 18 feet from concrete stoppings, and extending across entire widths of crosscuts.
They are designed to collect water pumped off the section. Electric pumps relay stored water
from knee high to knee high in sequence, then to the outside main discharge line. Tr. 395-97.
26 FMSHRC 549

Maple Creek relies on its construction and preshift books to demonstrate its diligence
in addressing the water accumulation on 4 West. An examination of the preshift records, from
July 30 to August 9, reveals scattered notations of water accumulations in the track entry which,
presumptively, were significant enough to merit attention in the judgment of the examiners.
Maple Creek argues that intermittent recording of water in the preshift book indicates periods
when the water had.been removed from the section or pumped down significantly. Had it not, it
contends, the accumulation that Dickey encountered would have been much higher. Tr. 486-87.
I reject this argument for two major reasons, and conclude that the water consistently remained at
a high level. First and foremost, the collective testimony of management officials that the water,
at its peak, constituted a mere "condition" rather than a hazard, causes me to be skeptical that the
chronic water problem in the section was approached with the seriousness that it deserved. In
fact, Brown testified that the accumulation would have to have been waist high before he would
have considered it hazardous and, if the secondary escapeway were open in that situation, he
would not worry about it. Tr. 550-53. The second reason is that I fully credit the testimony of
the miners who traveled daily to and from the working face through the cited area, that the
"muck" had consistently remained at a high level that prevented them from walking through it,
for at least a week, possibly two. Indeed, preshift records indicate high water on the track entry
at crosscuts 24 to 26 at approximately 1:00 p.m. on July 31, only a few hours after Maple Creek
had been directed to abate the Compliance Order, and claims to have done so. Tr. 526-30. Even
Alvy Walker testified that, on August 9 at 9:00 a.m., the conditions encountered by his crew were
the same as they had been throughout the week. Tr. 642-43.
In reaching this conclusion, I have considered the evidence that running and maintaining
the pumps on the section was a component of outby work performed on every shift. As Dickey
pointed out, however, with Brown's concurrence, air pumps do not have the capacity to pump
slurry. Tr. 325-26, 402, 481. This may explain why Dickey did not observe any pumping during
his inspection, and Maple Creek did not call his attention to any activity, even when he issued the
Withdrawal Order shutting down the section. For Maple Creek to have operated its air pumps
without clogging them up, clear water would have had to have been pumped from somewhere
other than the track entry, where scoops constantly churned up the bottom. The evidence as a
whole compels me to conclude that the pumping system employed by Maple Creek, at least from
the time of Walker's inspection to Dickey's Withdrawal Order, was woefully ineffective.
Furthermore, Maple Creek knew that its equipment could not handle the muck on the section.
Simply stated, Maple Creek failed to control the water condition in the primary escapeway,
especially in light of the 12-inch accumulation that it was duty bound to abate after the
Compliance Order had been issued.

As has already been noted, Maple Creek constantly battles water in the mine. While the
frequency of preshift notations of water in the track entry, and construction book entries of pump
repairs should have put Maple Creek on notice that greater effort to eliminate the hazard was
necessary, it was made abundantly clear by Walker's Compliance Order. Ten days later,
however, despite complaints from its employees, Maple Creek allowed the condition to expand
two crosscuts.
26 FMSHRC 550

Muck so thick that it is difficult to walk through, 12 to 17 inches deep in places, existing
for two weeks in the primary escapeway is, of course, obvious. It is dangerous as well. Inspector
Walker observed a miner slip and fall, and John Gargala injured his wrist and back when he also
slipped and fell in the area. Obstructed evacuation of a disabled miner on a stretcher could delay
critical medical treatment, subject the injured party to further injury if the stretcher were to fall
into the muck, and cause sprains, broken bones or even worse to the carriers. In the case of fire
or explosion, impeded evacuation through the fastest route out of the mine could result in death.
I conclude, therefore, that Maple Creek's actions to abate the Compliance Order and control the
water on the track entry reflect a level of indifference and serious lack of reasonable care that
constitutes an unwarrantable failure to comply with the standard.

D. Section llO{c) Liability
Section 110(c) of the Act provides that, whenever a corporate operator violates a
mandatory health or safety standard, an agent of the operator who knowingly authorized, ordered,
or carried out such violation shall be subject to an individual civil penalty. 30 U.S.C. § 820(c).
In determining liability under section l lO(c), the inquiry is whether the corporate agent knew or
had reason to know of the existence of the violative condition. Uifarge Constr. Materials, 20
FMSHRC 1140, 1148 (citing Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), a.ffdon other
grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman
United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997)). In order to
establish liability under section l lO(c), the Secretary need only prove that an individual acted
knowingly, not that the individual knowingly violated the law. Id. (citing Warren Steen Constr.,
Inc., 14 FMSHRC 1125, 1131(July1992) (citing Unites States v. ln.t'l Minerals & Chem. Corp.,
402 U.S. 558, 563 (1971)). An individual acts knowingly where he is "in a position to protect
employee safety and health [and] fails to act on the basis of information that gives him
knowledge or reason to know of the existence of a violative condition." Id. (quoting Kenny
Richardson, 3 FMSHRC at 16). Section llO(c) liability is based on aggravated conduct that
constitutes more than ordinary negligence. Id. (citing BethEnergy Mines, Inc., 14 FMSHRC
1232, 1245 (August 1992).

1. Steve Brown
I have made a finding that Maple Creek violated section 75.380(d)(l), and there is no
dispute that Steve Brown was Maple Creek's agent when the violation occurred. As section
coordinator, Steve Brown oversaw operations on 4 West, and was responsible for pumping
activity and pump maintenance on the section. He testified that, from a production standpoint, he
made walking examinations of the section at least once, sometimes twice daily. Tr. 482-84. He
reviewed preshift and construction logs and, on occasion between July 30 and August 9,
conducted preshift examinations of 4 West. Brown traveled with Inspector Walker during the
July 30 state inspection, and was responsible for abating the Compliance Order issued that day.
Tr. 535-36. Whatever active pumping took place by midday on July 31 was insufficient to abate
26 FMSHRC 551

the condition and, by August 9, it had worsened. Brown used the cow path to travel through the
cited area that day. Tr. 553-34. By his own testimony, he was aware that the air pumps set up to
address the problem were incapable of pumping the muck churned up by the scoops operating in
the escapeway. Despite the Compliance Order, Brown did not consider the area hazardous
because the muck was below 2 Y2 feet deep and the secondary escapeway was available. Had he
known that John Gargala had injured his wrist and back, he would not have acted differently
because, he testified, "I fall four times a day on average." Tr. 564-65. Clearly, the Compliance
Order put Brown on notice of the violative condition ten days prior to the Withdrawal Order. llis
failure to take expeditious, effective remedial action to protect the safety of miners who traveled
daily through the primary escapeway, as well those miners who would have to evacuate the mine
in an emergency, amounted to an aggravated lack of care that was more than ordinary negligence.
Therefore, Brown is individually liable under section 1 lO(c) of the Act.

2. Alyy Walker
Alvy Walker was day shift section foreman in charge of anll-man production crew on 4
West and, therefore, Maple Creek's agent. He typically traveled with his crew to and from the
working face, which necessitated walking along the cow path in the cited area, in order to avoid
the high accumulation of muck. There were occasions between July 30 and August 9 that
Walker conducted the preshift examination of the area. He conducted the preshift examination
on August 8, for example, recording water in the 25 to 27 crosscut on the track. Tr. 643; ex. G-8.
Walker did not consider the condition of the primary escapeway to be hazardous, however.
Tr. 639. He testified that, in order to preclude passage, the water would have to be 20 inches
deep, rib to rib. Muck is a hazard, in his opinion, when you cannot move your legs through it.
Tr. 635. Walker also stated that he had evacuated injured miners in worse conditions in other
mines, and that the alternate escapeway was available on 4 West. Tr. 660-62. He, too, expressed
his belief that slips and falls are a normal consequence of working in a wet mine. Tr. 637. He
did acknowledge, however, that he had received complaints about the muddy conditions.
Tr. 645-46. Clearly, Walker had actual knowledge of the violative condition and failed to
effectively remedy the chronic water accumulation problem in the primary escapeway to ensure
safe passage of all miners. Therefore, Walker demonstrated aggravated conduct that is more than
ordinary negligence, and he is individually liable under section 1 lO(c) of the Act.

3. Greg Miller
Greg Miller was the section foreman on the midnight shift on 4 West, and an
agent of Maple Creek. He and his crew traveled as a team through the primary escapeway to and
from the working face on a daily basis. Tr. 674-75, 696. He was well versed on the relay
pumping system used on the section, and conducted some of the preshift examinations of the
primary escapeway between July 30 and August 9. Tr. 695-96. In terminating the Compliance
Order, Inspector Walker lists Brown and Miller as having reported that the water had been
pumped off the section, although Miller did not recall making such report. Ex. G-1; tr. 722-23.
He testified that he did not recall whether miners had complained to him about the wet
26 FMSHRC 552

conditions, but did not deny that they could have done so. Tr. 675-77. He also did not deny that
he reported to the safety office John Gargala's slip and fall injury that had occurred on August 9.
Tr. 703-07; ex. G-16. He acknowledged that he was "under obligation in [his] area to keep
everything under compliance, whether it be water, roof, ribs, whatever." Tr. 714. He was
adamant, however, that the muck accumulated between crosscuts 24 and 27 was not a hazard.
He emphasized that, since the regulation is non-specific, what depth of water constitutes a hazard
is a judgment call. According to him, Dickey made a bad one on August 9. Tr. 685-86, 689. In
fact, Miller stated, if he had to, he could get through water that is roof high. Tr. 690. It is
obvious that Miller knew of the violative condition and his failure to talce expeditious, effective
action to maintain the primary escapeway in safe, passable condition constituted aggravated
conduct. Therefore, Miller is individually liable under section 110(c) of the Act.

IV. Penalty
A. Maple Creek
While the Secretary has proposed a civil penalty of $9,500.00, the judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section llO(i) of the Act, 30 U.S.C. § 820G). See Sellersburg Co., 5
FMSHRC 287, 291-92 (March 1993), affd, 763 F.2d 1147 (7th Cir. 1984).
Applying the penalty criteria, I find that Maple.Creek is a large operator, with a two-year
history of 18 violations for the standard at issue, which I find to be significant. Stip.13; ex. G-13.
As stipulated by the parties, the proposed penalty will not affect Maple Creek's ability to remain
in business. Stip 6. It is also my finding that Maple Creek demonstrated good faith in achieving
rapid compliance, after notification of the violation.
The remaining criteria involve consideration of the gravity of the violation and Maple
Creek's negligence in causing it. Respecting gravity, I find that failure to maintain the primary
escapeway in condition that permits safe, unobstructed, swift passage of all persons, especially in
emergencies where lives may be at stalce, is a very serious breach of duty. I also find that Maple
Creek's section coordinator and foremen, despite pumping efforts, were highly negligent in
failing to effectively remedy and control the water accumulation in a timely manner, especially
because the Compliance Order had put them on notice of the violative condition ten days before
the instant Order was issued. Furthermore, because the pumping conducted by the company
between July 30 and August 9 was grossly inadequate, I do not consider those efforts to be a
mitigating factor.
Accordingly, having considered Maple Creek's large size, significant history of
violations, seriousness of the violation, high degree of negligence, good faith abatement and lack
of any mitigating factors, I find that a penalty of $7 ,500.00 is appropriate.

26 FMSHRC 553

B. Steve Brown
Applying the Sellersburg penalty criteria, by analogy, to individuals, the factors
considered are an individual's income and family support obligations, the appropriateness of a
penalty in light of the individual's job responsibilities, the individual's ability to pay, the
individual's history of violations, and negligence. Findings on gravity of the violation and good
faith abatement rest on the same record evidence used to assess the operator's penalty for the
violation underlying the section 1IO(c) liability. See Sunny Ridge Mining Co., 19 FMSHRC 254,
272 (February 1997).
The parties have stipulated that Steve Brown has the ability to pay the $1,000.00 penalty
proposed by the Secretary. Stip. 7. No evidence has been presented that Brown has a history of
previously violating the standard. As section coordinator on 4 West and responsible for outby
maintenance, Brown knew of the violative condition and was highly negligent in failing to
expeditiously remove and control the water accumulation in the primary escapeway. As has
previously been discussed, the violation was serious and Maple Creek abated it in good faith.
Therefore, I find that a penalty of $700.00 is appropriate.

C. Alvv Walker
The parties have stipulated that Alvy Walker has the ability to pay the $500.00 penalty
proposed by the Secretary. Stip. 8. No evidence has been presented that Walker has previously
violated the standard. As day shift section foreman on 4 West, Walker knew of the water
accumulation, traveled with his crew through it, and failed to expeditiously remedy the hazardous
condition. Given the seriousness of the violation and Walker's indifference that amounted to
aggravated conduct, I find that he was highly negligent. Therefore, I find that a penalty $350.00
is appropriate.

D. Greg Miller
The parties have also stipulated to Greg Miller's ability to pay the $500.00 penalty
proposed by the Secretary. Likewise, there is no record evidence of a history of previous
violations. As 4 West section foreman on the midnight shift, Miller also knew of the water
accumulation, traveled with his crew through it, and failed to expeditiously remedy the condition,
as did Brown and Walker. Miller also demonstrated aggravated conduct, in light of the
seriousness of the violation, and I find that he, too, was highly negligent. Therefore, I find that a
penalty of $350.00 is appropriate.

26 FMSHRC 554

ORDER
Accordingly, it is ORDERED that Order No. 7082507 is AFFIRMED, as issued, and
that Respondent Maple Creek Mining, Incorporated PAY a civil penalty of $7,500.00, within 30
days of this Decision.
Further, it is ORDERED that Respondent Steve Brown PAY a civil penalty of $700.00,
that Respondent Alvy Walker PAY a civil penalty of $350.00, and that Respondent Greg Miller
PAY a civil penalty of $350.00, within 30 days of this Decision. Upon receipt of payment, these
cases are DISMISSED.

~~ti£~
Adininistrative Law Judge
(202) 434-9987

Distribution: (Certified Mail)
Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630 E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
Marco M. Rajkovich, Jr., Esq., Noelle M. Holladay, Esq., Wyatt, Tarrant & Combs, Ll...P, 250 W.
Main Street, Suite 1600, Lexington, KY 40507
Leon J. Moscalink, Jr., Mine Safety & Health Committee, Local Union 1248, United Mine
Workers of America, 609 Keystone Street, Greensburg, PA 15601-4329
ej

26 FMSHRC 555

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

June 30, 2004

JIM WALTER RESOURCES , INC.,
Contestant
V.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD:MINISTRATION (MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No. SE 2003-97-R
Order No. 7670621; 03/03/03
Docket No. SE 2003-98-R
Order No. 7670622; 03/03/03
No. 7Mine
Mine ID No. 01-01401
DECISI ON

Appearances: Warren B. Lightfoot, Jr., Esq., Maynard, Cooper & Gale, P.C., Birmingham,
Alabama, and Guy W. Hensley, Esq., Jim Walter Resources Inc., Brookwood,
Alabama, on behalf of the Contestant;
Ann G. Paschall, Esq., Office of the Solicitor, U.S. Department of Labor,
Atlanta, Georgia, and Terry Gaither, Conference and Litigation Representative,
U.S. Department of Labor, Mine Safety and Health Administration,
on behalf of the Respondent.
Before:

Judge Melick

These cases are before me upon notices of contests filed by Jim Walter Resources, Inc.
(JWR) pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq., (1994), the "Act," to challenge two withdrawal orders issued by the Secretary of
Labor pursuant to Section 104(d)(l) of the Act. 1

Section 104(d)(l) provides 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 Act. If, during the same inspection or any subsequent inspection of such mine within
90 days after the issuance of such citation, an authorized representative of the Secretary finds
another violation of any mandatory health or safety standard and finds such violation to be also
26 FMSHRC 556

Order No. 7670621
Order No. 7670621 alleges a "significant and substantial" violation of the mandatory
standard at 30 C.F.R. § 75.400 and charges as follows:
Float coal dust, (dry and black in color and easily suspended in the air by
placing the float coal dust between the hands and patting the hands together (A)
was allowed to accumulate along the Main North belt line from #1 to #40 cross
cut, a distance of approximately 4875 feet, and (B) from #54 cross cut to #77 VZ
cross cut, a distance of approximately 2000 feet. In the area from #54 to #77 VZ,
there were bottom brackets where the bottom belt was rubbing the brackets. 1 at
110 feet inby #74 cross cut was so hot one could not leave the hand in contact
with the bracket. This is an ignition source that could cause a fire with the float
coal dust present. The belt was rubbing 2 bottom brackets at 20 feet and 30 feet
inby #69 cross cut. The belt was rubbing a bottom bracket at #60 cross cut. 2
bottom rollers were running in coal fines, float coal dust, and rock dust 50 feet
and 60 feet inby #66 cross cut. A bottom roller at #56 cross cut was broken and
hanging down on one side with the belt rubbing on the other side. In the area
from #1 cross cut to #40 cross cut, one bottom roller was running in
accumulations of rock dust and coal fines, 3 bottom rollers running in
accumulations of rock dust and coal fines at #38 cross cut, 1 bottom roller at #22
cross cut running in accumulations of rock dust and coal fines, 1 bottom roller
running in accumulations of rock dust and coal fines 20 feet outby #20 cross cut, 2
bottom rollers running in accumulations of rock dust and coal fines 10 feet and 20
feet inby #19 cross cut, 2 bottom rollers at #10 cross cut running in coal fines, 2
bottom rollers 10 feet and 20 feet oubtby #7 cross cut turning in coal and coal
fines, 1 bottom roller 50 feet outby #7 cross cut running in coal. Coal and coal
fines were under the belt drive to the extent the drive rollers were turning in coal.
2 rollers on top of the East track overcast were turning in coal fines. The bottom
belt had been rubbing the following belt stands to the point the stands were cut
half way through and were shinny [sic] from being rubbed, 2 stands at #36 cross
cut, 7 stands at #31 cross cut, 2 stands at #29 cross cut, 2 stands at #26 cross cut, 7
stands at #24 cross cut, 1 stand at #22 cross cut, 2 belt stands at #16 cross cut, 1 at
#14 cross cut, 3 stands at #9 lcross cut, 2 stands at #8 cross cut, 1 stand at #7

caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an
order requiring the operator to cause all persons in the area affected by such violation, except
those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the Secretary determines that such
violation has been abated."

26 FMSHRC 557

cross cut. 1 broken top roller 30 feet inby #28 cross cut. The energized hydraulic
belt winch unit was covered with black float coal dust.
The company has been cited 26 times since 01102/2003 for 75.400 violations.
MSHA has discussed this with management several times to no avail.
The cited standard, 30 C.F.R. § 75.400, provides that "coal dust, including float coal dust
deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned
up and not be permitted to accumulate in active workings, or on diesel-powered on electrical
equipment therein."
John Smoot, a coal mine inspector for the Department of Labor's Mine Safety and Health
Administration (MSHA), has been employed by MSHA since the year 2000. He has extensive
underground coal mining experience of more than 20 years. He arrived at the JWR No. 7 Mine
on March 3, 2003, around 2:30 p.m. At this time he reviewed the preshift examination books for
the mine belts for the period March 1, 2003 through the day shift on March 3, 2003.
(Government Exhibit No. 1). After examining the books, Smoot, along with union walkaround
representative, Dwight Cagle and company representative, Jerry Mullins, began an underground
inspection. Traveling along the main north belt line beginning at crosscut 77 ~. Smoot observed
what he believed to be coal dust accumulations. He found the coal dust to be dry and black in
color and easily suspended in the air. According to Smoot, the coal dust existed along the main
north belt line from the No. 1 to the No. 40 crosscut, a distance of approximately 4,875 feet and
from the No. 54 crosscut to the No. 77 1/z crosscut, a distance of approximately 2,000 feet. At
hearing, Inspector Smoot identified on a mine map (Joint Exhibit No. 1) where he also found
what he considered to be potential ignition sources within the same area, including an area
where the bottom belt was rubbing the brackets. More particularly, he found a bracket so hot that
he could not leave his hand in contact with it. In addition, there were several areas where bottom
rollers were running in accumulations of coal fines and coal. Smoot also found several belt
stands cut half way through by the belt.
Smoot opined that, due to the amount of float coal dust and the presence of ignition
sources, it was reasonably likely for reasonably serious injuries to occur. Fire and smoke would
likely result from an ignition and, since the ventilating air proceeded inby the belt and there were
30 miners working inby, Smoot opined that those miners would be exposed to the hazard.
Smoot's testimony in this regard is credible in essential respects. The testimony clearly supports
a violation of the cited standard and a finding that the violation was of high gravity and
"significant' and substantial."
A violation is properly designated as "significant and substantial" 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 Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC
1,3-4 (January 1984), the Commission explained:

26 FMSHRC 558

In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum 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.
See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), affg 9
FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
The third element of the Mathies formula requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 {August 1984)). The likelihood of such
injury must be evaluated in terms of continued normal mining operations without any
assumptions as to abatement. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984);
See also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).
Smoot also concluded that the violation was the result of high negligence and
"unwarrantable failure." In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the
Commission held that unwarrantable failure is aggravated conduct constituting more than
ordinary negligence. This determination was derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable"), "failure" ("neglect of an assigned, expected
or appropriate action"), and "negligence" (the failure to use such care as a reasonably prudent and
careful person would use, and is characterized by "inadvertence," "thoughtlessness," and
"inattention"). 9 FMSHRC at 2001. Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference" or a "serious lack of reasonable
care." 9 FMSHRC at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94
(February 1991). The Commission has also stated that use of a "knew or should have known"
test by itself would make unwarrantable failure indistinguishable from ordinary negligence, and
accordingly, the Commission rejected such an interpretation. A breach of a duty to know is not
necessarily an unwarrantable failure. The thrust of Emery was that unwarrantable failure results
from aggravated conduct, constituting more than ordinary negligence. Secretary v. Virginia
Crews Coal Co., 15 FMSHRC 2103, 2107 (October 1993).
Smoot based his findings of unwarrantability and high negligence on a number of factors.
First, Smoot observed that notations in the preshift reports showed that accumulations had
existed in the areas he cited and had not been reported in the preshift books as having been
corrected. He noted, in particular, on the preshift examiner's report (Government Exhibit No. 1):
(1) at page 1 at the fourth listed location: "40-header North B" "needs spot cleaning back of take
up to #17"; on page 2 at the third listed location: "North A" "need swept 60-40, 88-90, 91, 92
Yz''; (3) at the bottom of page 2: "North Main need additional dust 77-72, 77-65 need swept
26 FMSHRC 559

northeast side"; (4) page 4, at the fourth listed location: "North B" "Ace of float coal dust 56-68,
b-need swep [sic] need spot cleaning take up [illegible]"; (5) at page 5 the third listed location:
"North A" "need swept 89, 92, 62~, 40 3 - l."2 (6) it was reported at the bottom of page 5,
under "Remarks-North A" "need additional 13-5." (7) on page 6 the third listed location: at
"Main North A" "additional dust 72-83Yz''; (8) at page 7 "Remarks-North A," "needs rock dust
added from #24-#33 brattice." Smoot observed that the above conditions were reported as
"hazardous" in the preshift examiner's book but there was no indication as of the date of his
inspection on March 3, 2003, that any corrective action had been taken. With the exceptions
previously noted in footnote 2, this observation appears to be correct.
As Inspector Smoot described in his testimony, the areas he observed in the preshift
examiner's books as needing corrective action were within the same areas in which he found
violative "coal dust accumulations." Even considering the exceptions noted in footnote 2, this
evidence clearly supports a finding of high negligence, reckless disregard and a serious lack of
reasonable care. While Contestant argues that the No. 7 Mine Belt Crew Report (Operator's
Exhibit No. 2) shows that some corrective action was reported to have been taken, such report is
not required to be maintained by Federal law and is not therefore subject to the same
certifications of accuracy and criminal sanctions for falsification under Federal law as the preshift
and onshift examination reports. I therefore can give entries in the Belt Crew Report but little
weight. The credibility of such a report is particularly suspect where entries do not have
equivalent notations in the Federally mandated preshift examiner's report.
Inspector Smoot also relied, for his findings of high negligence and unwarrantability, on
his observation that insufficient efforts were being made to clean up the massive accumulations
he found. While Smoot apparently found no one working on the belt, I am satisfied from the
testimony of others, including union walkaround Dwight Cagle, that two miners were indeed
sweeping the belt. Cagle observed two "belt cleaners" during the course of the inspection. One
had a broom and was sweeping the ribs in a crosscut and the other, who had just come through a
man door, was sweeping the timbers. However, Cagle opined that those two belt cleaners could,
at most, clean a maximum of ten crosscuts in an 8-hour shift. He also noted that they would need
to shovel under the belt line. According to Cagle, only two persons were available for belt
cleaning at that time. The extra belt cleaners were working the longwall and all other miners
available that day had been assigned to other work.
One of the belt cleaners, Pearl Longhorn, also testified that they were able to sweep 15
crosscuts over during the entire shift but performed no shoveling. The other belt cleaner,
Margaret Martin, testified that she thought they had swept 20 crosscuts during the shift. In her
opinion, however, the area also needed rock dusting.

2

It is noted, however, with respect to this latter notation that it was reported under
the column "action taken" that 62-40 was "corrected." In addition, it was reported on the March
3 "owl shift" report that "2 people swept 40-62 Br." (Government Exhibit No. 1 p. 7).
26 FMSHRC 560

I conclude, based on the credible evidence, that the assignment of only two belt cleaners
to clean the massive accumulations was grossly inadequate. The belt cleaners themselves
testified that, at best, they were able to sweep only 15 to 20 crosscuts during their shift and that
the area still needed rock dusting. The failure of JWR to assign adequate manpower to the
cleanup effort is also evidence of gross negligence, indifference, and a serious lack of reasonable
care. This evidence therefore independently establishes that the violation was the result of the
operator's high negligence and "unwarrantable failure" to comply.
As further corroboration of the grossly inadequate cleanup efforts, I also note that the
abatement of the violative condition required significant rock dusting. 34 man-shifts were
utilized with 28 poqs of rock dust - - the equivalent of 56 tons of rock dust (Tr. 64). In addition,
in order to abate the violative condition, 13 man-shifts were needed to clean the accumulations
from the belt drive and 54 man-shifts to clean around the bottom rollers where they had been
running in accumulations. Moreover, 43 bottom rollers and 66 bottom roller brackets were
replaced. Such massive abatement efforts clearly demonstrate the inadequate efforts to have
prevously corrected the violative conditions. (See Government Exhibit No. 3, p.3).
The Secretary also cites, as evidence of high negligence and unwarrantability, the
existence of 23 prior charging documents for violations at the No. 7 Mine of the same standard at
issue herein, i.e., 30 C.F.R. § 75.400, over the preceding three months. Those documents were
admitted into evidence by order dated February 12, 2004. See 26 FMSHRC 133 (February
2004). This Commission has held that prior notification by inspectors to mine operators about
potentially unsafe conditions can be used to demonstrate negligence and unwarrantability. See
Enlow Fork Mining Co., 19 FMSHRC 5, 11-12 (January 1997). In this case the recent issuance
of 23 charging documents for violations of the same standard at issue herein, singly and in
combination, indeed, provided notice to JWR that it needed to increase its efforts to comply with
the requirements of that standard.3 This evidence, I therefore find, provides an independent basis
for the findings of high negligence and unwarrantability.
Order No. 7670622
Order No. 7670622 alleges a "significant and substantial" violation of the standard at 30
C.F.R. § 75. l 725(a) and charges as follows:
The Main North belt was not being maintained in safe operating condition
or immediately removed from service. 36 belt stands were cut over half way
through from being rubbed by the bottom belt. The stands were shinny [sic]
where they had been rubbed showing this rubbing was recent. This causes heat
3

While JWR correctly suggests in its posthearing brief that some of these charging
documents are less probative to this case than others, e.g., violations for trash accumulations
rather than coal dust accumulations, all are sufficiently probative to be relevant to this issue.

26 FMSHRC 561

from friction. 21 bottom rollers were running in accumulations of coal fines, and
rock dust causing heat from friction. 5 broken bottom rollers were hanging down
on one side with the bottom belt rubbing the other side causing heat from friction.
There was 1 broken top roller. The bottom belt was rubbing 4 bottom roller
brackets. One of these brackets located 110 feet inby cross cut #74 was very hot
to the touch. This is an ignition source to cause a fire. 2 areas of float coal dust,
(black in color, dry, and easily suspended in the air by placing the float coal dust
between the hands and patting the hands together), were l_ocated in this area of the
belt. An area from #1 cross cut to #40 cross cut, approximately 4875 feet, and an
area from #54 cross cut to #77 Y2 cross cut, approximately 2000 feet. In the area
from #1 to #40 cross cut is the energized belt power center, electrical belt starter
box, and the energized hydraulic take-up unit for the belt. Float coal dust (black
in color) was present on all of these energized electrical units. Coal and coal fines
were under the belt drive to the point the drive rollers were running in coal. In the
area from #54 cross cut to #77 Vi cross cut, there was 1 broken bottom roller, 2
rollers turning in accumulations of rock dust and coal fines, 4 bottom roller
brackets being rubbed by the bottom belt including the bracket at #74 cross cut.
The cited standard provides that "mobile and stationery machinery and equipment shall
be maintained in safe operating condition and machinery or equipment in unsafe condition shall
be removed from service immediately." Many of the conditions cited by Inspector Smoot on the
main North belt, for example most of the 36 belt stands cut more than half-way through by the
bottom belt, broken rollers on the belt, etc., were cited in the prior order. These conditions were
clearly violative of the cited standard and I conclude, based on the same evidence, that they
constituted a "significant and substantial" violation of high gravity.
I also find that the violative conditions were the result of high negligence and
unwarrantable failure based on the sheer number of violative conditions alone. It may also
reasonably be inferred that conditions, such as 36 damaged belt stands cut half way through, were
obvious. It may also reasonably be inferred that such conditions were observed by the preshift
examiner but not corrected. This evidence establishes that the violation was the result of reckless
disregard and a serious lack of reasonable care.
In reaching this conclusion I have not disregarded JWR's argument that the defective top
roller, the seven defective bottom rollers and the 36 damaged stands constituted only "1 % or less
of the equipment" in the 6800-foot distance traveled by Inspector Smoot and that this should be
considered in mitigation of unwarrantability findings. I find, however, that the failure to identify
and correct that large number of defects rather suggests that JWR has not been implementing an
adequate inspection regimen. A larger area to inspect and maintain may require more inspectors
and maintenance workers, but it cannot be an excuse for failure to observe and correct such a
large number of defects.

26 FMSHRC 562

Under the circumstances I find that the orders must be affirmed as written.
ORDER
Orders No. 7670621 and 7670622 are hereby affirmed and these Contests dismissed.

/~~·

i

GaryMe ck ·
Administration Law Ju ge
Distribution: (Certified Mail)
Ann G. Paschall, Esq., Office of the Solicitor, U.S. Dept. of Labor, 61 Forsyth Street, S.W.,
Room 7Tl0, Atlanta, GA 30303
Warren B. Lightfoot, Jr., Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue North, 2400
AmSouth/Harbert Plaza, Birmingham, AL 35203
Guy Hensley, Esq., Jim Walter Resources, Inc., P.O. Box 133, Brookwood, AL 35444
/mca

'{::r U.S. GOVERNMENT PRINTING OFFICE: 2004 30S-032/15906

26 FMSHRC 563