AUGUST 2005

COMMISSION DECISIONS AND ORDERS

08-09-2005 Meridian Aggregates Company
08-09-2005 O/N Minerals (St. Clair) Company
08-09-2005 Borton, LC
08-09-2005 Sequatchie Concrete Service
08-09-2005 Holcim (US) Inc.
08-09-2005 Mountain Edge Mining, Inc.
08-11-2005 Northern Gravel Company, Inc.
08-11-2005 Hubble Mining Company, ILC
08-11-2005 Brooks Run Mining Co., ILC
08-24-2005 Consol Pennsylvania Coal Co.
08-26-2005 Maple Creek Mining, Inc., et al.

CENT 2005-184-M
CENT 2005-185-M
SE 2005-222-M
SE 2005-247-M
WEST 2005-376-M
WEVA 2005-157
CENT 2005-223-M
VA 2005-17
WEVA 2005-195
PENN 2005-228
PENN 2002-116

Pg.521
Pg.524
Pg.528
Pg.531
Pg.534
Pg.537
Pg.541
Pg.545
Pg.548
Pg.552
Pg.555

WEST 2004-453
WEST 2005-51-M
WEST 2004-311-M
WEST 2004-330-M

Pg.580
Pg.595
Pg.597
Pg.600

ADMINISTRATIVE LAW .JUDGE DECISIONS

08-11-2005 Genwal Resources, Inc.
08-15-2005 James Carney Construction
08-17-2005 Dewayne Herren
08-19-2005 Original Sixteen to One Mine, Inc.

i

AUGUST 2005

No cases were filed in which Review was granted during the month of August

No cases were filed in which Review was denied during the month of August

ii

COMMISSION DEQSIONS AND ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 9, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2005-184-M
A.C. No. 34-01285-45400

V.

l\1ERIDIAN AGGREGATES
COMPANY, ILP

BEFORE: Duffy, Chairman; 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. (2000) ("Mine Act"). On June 6, 2005, the Commission received from Meridian
Aggregates Company, lLP ("Meridian") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its motion, Meridian states that on approximately December 10, 2004, the Department
of Labor's Mine Safety and Health Administration ("MSHA") issued to the company the
proposed penalty assessment at issue. Mot. at 1. Meridian further states that, at the time MSHA
sent the proposed penalty assessment to its Southwest Division Office, the individual who was
responsible for ensuring that the proposed assessment would be forwarded to Meridian's district
office for processing was on extended leave. As a result, the proposed assessment "was
overlooked" and not received at the district office until January 21, 2005, six days after the date
on which the proposed penalty had become a final order of the Commission. Id. at 1-2. The
Secretary states that she does not oppose Meridian' s request for relief.

27 FMSHRC 521

We have held that in appropriate circumstances, we p9ssess 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 Procedare"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc. , 17 FMSHRC 1529, 1530 (Sept. 1995).
Having reviewed Meridian'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
Meridian'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.

27 FMSHRC 522

Distribution
Karen L. Johnston, Esq.
Jackson Kelly PILC
1099 18th Street, Suite 2150
Denver, CO 80202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor ·
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 523

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
·

WASHINGTON, DC 20001

August 9, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. CENT 2005-185-M
A.C. No. 34-00282-47934

v.

OIN MINERALS (ST. CLAIR) CO.

Docket No. CENT 2005-186-M
A.C. No. 34-00282-52828

BEFORE: Duffy, Chainnan; 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. (2000) ("Mine Act"). 1 On June 8, 2005, the Commission received from OIN
Minerals (St. Clair) Company ("O/N Minerals") motions made by counsel to reopen two 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).
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 Co~ssion. 30 U.S.C. § 815(a).
On January 13 and March 17, 2005, the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued two proposed assessments to OIN Minerals. Mot. at Ex. A-B.
In its motions, O/N Minerals states that the employee responsible for processing proposed
penalty assessments for the company was "unaware of the proper contest procedures." Mot. at

1

Pursuant to Commission Procedural Rule 12, on ·o ur own motion, we hereby
consolidate docket numbers CENT 2005-185-M and CENT 2005-186-M, both captioned O/N
Minerals (St. Clair) Comp0:ny and both involving similar issues. 29 C.F.R. § 2700.12.
27 FMSHRC 524

Aff. The employee believed that the proposed assessments at issue did not reflect modifications
agreed to in a conference with MSHA on the citations and orders listed, and assumed MSHA
would reissue or revise the proposed assessments based on the modifications. Id. The employee
thus did not file requests for hearing for either of the proposed assessments. Id.
O/N Minerals further states that "it was always our intent to contest these proposed
penalties." Id. The company requests to be excused from its failure to timely request a hearing,
which it claims was due to its mistake and inadvertence. Mot. at 1. The Secretary states that she
does not oppose O/N Minerals' requests for relief.
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).

27 FMSHRC 525

Having reviewed O/N Minerals' motions, in the interests of justice, we remand these
matters to the Chief Administrative Law Judge for a determination of whether good cause exists
for O/N Minerals' failure to timely contest the penalty proposals and whether relief from the final
orders should be granted. If it is determined that such relief is appropriate, these cases shall
proceed pursuant to the Mine Act and the Com.mission's Procedural Rules, 29 C.F.R. Part 2700.

27 FMSHRC 526

Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22m1 Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 527

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 9, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2005-222-M
A.C. No. 39-00014-40619 (A129)

V.

BORTON LC

BEFORE: Duffy, Chairman; Jordan, Subolesk.i, 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. (2000) ("Mine Act"). On May 13, 2005, the Commission received from Borton LC
("Borton") a motion made by counsel to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On October 15, 2004, the Department of Labor's Mine Safety and Health Administration
("MSHA") issued to Borton the proposed penalty assessment that is at issue. Supp. Mot. Ex. In
its motion, Borton states that it never received the proposed assessment, and learned of it
inadvertently when, during April 2005, the company's safety director discovered it listed on
MSHA's web site. Mot. at 1-2. Although Borton subsequently attempted to contest the
proposed assessment, Supp. Mot., the Commission has determined that MSHA considers the
contest untimely. The Secretary states that she does not oppose Borton'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 105(a). Jim
27 FMSHRC 528

Walter Res., Inc. , 15 FMSHRC 782, 786-89 (May 1993) (".!WR"). 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).
Having reviewed Borton'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 Borton' 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.

27 FMSHRC 529

Distribution
Marcus P. McGraw, Esq.
Greenebaum, Doll & McDonald, PI.LC
300 West Vine Street, Suite 1100
Lexington, KY 40507
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001 -2021

27 FMSHRC 530

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

August 9, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AO:MINISTRATION (MSHA)
Docket No. SE 2005-247-M
A.C. No. 40-02981-44539

v.
SEQUATCHIB CONCRETE SERVICE

BEFORE: Duffy, Chairman; 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. (2000) ("Mine Act"). On July l, 2005, the Com.mission received from Sequatchie
Concrete Service ("Sequatchie") a letter requesting that the Commission reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
On December 2, 2004, the Department of Labor's Mine Safety and Health Adminisµ-ation
("MSHA") issued to Sequatchie the proposed penalty assessment at issue. In its letter,
Sequatchie states that although it attempted to contest the proposed penalty assessment, the
contest "was received too late" by MSHA. According to Sequatchie, the contest was late
because of "a communication breakdown in that the information was sent directly to the mine
instead of our corporate office." The Secretary states that she does not oppose Sequatchie's
request for relief.

We have held that in appropriate circumstances, we possess jurisdiction to reopen
27 FMSHRC 531

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).
Having reviewed Sequatchie's letter, in the interests of justice, we remand this matter to
the Chief Administrative Law Judge for a determination of whether good cause exists for
Sequatchie'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.

27 FMSHRC 532

Distribution
Jamie Steinmeyer, Safety Director
Sequatchie Concrete Service
P.O. Box 129
South Pittsburgh, TN 37380
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 533

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW J ERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 9, 2005
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2005-376-M
A.C. No. 05-00037-54124

v.
HOLCIM (US) INC.

BEFORE: Duffy, Chairman; 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. (2000) ("Mine Act"). On June 20, 2005, the Commission received from Holcim
(US) Inc. ("Holcim") a motion made by counsel to reopen a penalty assessment that had become
a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its motion, Holcim states that on approximately April 15, 2005, the Department of
Labor's Mine Safety and Health Administration ("MSHA") issued a proposed penalty assessment
to Holcim for three orders issued to the company by MSHA between September 2004 and
January 2005. Mot. at 1-3. Holcim had already timely contested all three orders, which are the
subject of Docket Nos. WEST 2005-182-RM, WEST 2005-183-RM, and WEST 2005-49-RM.
Id. These proceedings are currently stayed before Commission Administrative Law Judge
Richard Manning. Id. Holcim states that the proposed penalty assessment for the three orders
was not delivered to its current safety director but was instead sent to and received by a former
safety director, who did not act upon it in a timely fashion. Id. at 3. The Secretary states that she
does not oppose Holcim ' s request for relief.

27 FMSHRC 534

We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Commission ~rders 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).
Having reviewed Holcim'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
Holcim' 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.

27 FMSHRC 535

Distribution
William K. Doran, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P .C.
2400 N Street NW, 5th Floor
Washington , DC 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001 -2021

27 FMSHRC 536

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 9, 2005
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)

Docket No. WEVA 2005-157
A.C. No. 46-08913-46657

v.

Docket No. WEVA 2005-158
A.C. No. 46-08913-50525

MOUNTA1N EDGE .'MINING, IN~.

BEFORE: Duffy, Chairman; 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. (2000) ("Mine Act"). 1 On June 22, 2005, the Commission received from Mountain
Edge Mining, Inc. ("Mountain Edge") a letter requesting that the Commission reopen two 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).
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 December 28, 2004 and February 17, 2005, the Department of Labor's Mine Safety
and Health Administration ("MSHA") issued to Mountain Edge the two proposed penalty
assessments at issue. In its letter, Mountain Edge states that along with partial payments for the
proposed penalties, the company thought it had included forms indicating it wished to contest
several citations and orders included in the proposed assessments. The company has been
1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers WEST 2005-157 and WEST 2005-158, both captioned Mountain
Edge Mining, Inc. and both involving similar issues. 29 C.F.R. § 2700.12.
27 FMSHRC 537

informed by MSHA however, that the agency never received the contest forms. The Secretary
states that she does not oppose Mountain Edge'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 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).

27 FMSHRC 538

Having reviewed Mountain Edge' s letter, in the interests of justice, we remand these
matters to the Chief Administrative Law Judge for a determination of whether good cause exists
for Mountain Edge's failure to timely contest the ·penalty proposals and whether relief from the
final orders should be granted. If it is determined that such relief is appropriate, these cases shall
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

~~
Chainnal1
Michael~,

27 FMSHRC 539

Distribution
Douglas M. Epling, President
Mountain Edge Mining, Inc.
P.O. Box 2226
Beckley, WV 25802
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 540

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 11, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMJNISTRATION (MSHA)

Docket No. CENT 2005-223-M
A.C. No. 13-00733-46541

v.

Docket No. CENT 2005-224-M
A.C. No. 13-00733-41258

NORTHERN GRAVEL COMPANY, INC.

BEFORE: Duffy, Chairman; 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. (2000) ("Mine Act"). 1 On July 19, 2005, the Commission received from Northern
Gravel Company, Inc. ("Northern Gravel") motions made by counsel to reopen two 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).
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).
In its motions, Northern Gravel states that during August 2004, the Department of
Labor's Mine Safety and Health Administration ("MSHA") issued to the company several
citations and orders. Mot. at 2. Northern Gravel further states that when penalties were proposed
for the citations and orders, the company was not represented by counsel and it failed to contest
the penalties because it was not familiar with the procedures for contesting penalties under the

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate docket numbers CENT 2005-223-M and CENT 2005-224-M, both captioned
Northern Gravel Company, Inc. and both involving similar issues. 29 C.F.R. § 2700.12.
27 FMSHRC 541

Mine Act and the Commission's Procedural Rules. Id. The Secretary states that she does not
oppose Northern Gravel's requests for relief.
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).

27 FMSHRC 542

Having reviewed Northern Gravel's motions, in the interests of justice, we remand these
matters to the Chief Administrative Law Judge for a determination of whether good cause exists
for Northern Gravel's failure to timely contest the penalty proposals and whether relief from the
final orders should be granted. If it is determined that such relief is appropriate~ these cases shall
proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

27 FMSHRC 543

Distribution
John A. Kyhl, Esq.
Stanley, Lande & Hunter
900 U.S. Bank Center
20 l West Second
Davenport, IA 52801
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001 -2021

27 FMSHRC 544

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW ·
SUITE9500
WASHINGTON, DC 20001

August 11, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 2005-17
A.C. No. 44-07048-48293

V.

HUBBIB :MINING COMPANY, LLC

BEFORE: Duffy, Chairman; 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. (2000) ("Mine Act"). On April 28, 2005, Chief Administrative Law Judge Robert
J. Lesnick issued a show cause order to Hubble Mining Company, LLC ("Hubble") stating that it
had failed to file an answer to a petition for penalty assessment sent to it by the Secretary of
Labor on March 17, 2005, and that Hubble would be found in default if it did not file an answer
or show good cause for not doing so within 30 days of the order. On June 20, 2005, Chief Judge
Lesnick issued an order finding that Hubble had failed to respond to the show cause order and
entering a judgment by default for the Secretary of Labor.
On July 21, 2005, the Commission received from Hubble a motion made by counsel
seeking review of Chief Judge Lesnick's default order. In its motion, Hubble states that before
Chief Judge Lesnick entered the default judgment, the company was not represented by counsel.
Mot. at 2. The company official handling the matter mistakenly believed that a conference held
with MSHA on the citation underlying the proposed penalty at issue was "a hearing on the
merits," and that he was "not required to further participate in the penalty proceedings." Id. The
Secretary states that she does not oppose Hubble's motion.
The judge's jurisdiction in this matter terminated when his decision was issued on June
20, 2005. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural rules,
relief from a judge's decision may be sought by filing a petition for discretionary review within
30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does
not direct review within 40 days of a decision'_s issuance, it becomes a final decision of the
27 FMSHRC 545

Commission. 30 U.S.C. § 823(d)(l). The judge's order became a final decision of the
Commission on August l, 2005.
In evaluating requests to reopen final orders, the Commission has found guidance in Rule
60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled
to relief from a final order of the Com.mission 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"); Jim Walter Resources, Inc., 15 FMSHRC 782, 787 (May
1993). 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 pennitted. See Coal Prep. Ser-vs., Inc., 17 FMSHRC 1529,
1530 (Sept. 1995).

Having reviewed Hubble's motion, in the interests of justice, we hereby remand this
matter to the Chief Administrative Law Judge for a detennination of whether good cause exists
to excuse Hubble's failure to respond to the show cause order, and for further proceedings as
appropriate.

27 FMSHRC 546

Distribution
Mickey T. Webster, Esq.
Wyatt, Tarrant & Combs, ILP
250 West Main Street, Suite 1600
Lexington, KY 40507
W. Christian Schumann, Esq.
Office of the Solicitor ·
U.S. Department of Labor
llOO Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W ., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 547

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 11 , 2005
SECRETARY OF LABOR,
l\1INE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2005-195
A.C. No. 46-06045-000059820

v.
BROOKS RUN MINING CO., LLC

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE CO:Ml\1ISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On July 25, 2005, the Commission received from Brooks
Run Mining Company, LLC ("Brooks Run") a motion made by counsel to reopen a penalty
assessment that had become a final order of the Com.mission 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).
In its motion, Brooks Run states that on June 17, 2005, the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued a proposed penalty assessment to Brooks
Run for three citations issued to the company by MSHA on January 27, 2005. Mot. at 1-2.
Brooks Run had already timely contested all three citations, which are the subject of Docket Nos.
WEVA 2005-77-R, WEVA 2005-78-R, and WEVA 2005-79-R. Id. at 2. These proceedings are
currently before Commission Administrative Law Judge David Barbour and are scheduled for
hearing on September 7, 2005. Id.
Brooks Run states that it mailed a contest of the proposed penalty assessment at issue on

27 FMSHRC 548

July 21, 2005,1 but was informed by MSHA's Assessment Office that a timely contest had to be
filed "withi,n 30 days of the date of the proposed assessment, June 17, 2005." Id. To the
contrary, section 105(a) of the Mine Act states that an operator may file a contest "within 30 days
from the receipt of the notification" of a proposed penalty. 30 U.S.C. § 815(a). Here, however,
Brooks Run provides no information on when it received MSHA's proposed penalty assessment,
and we are thus unable to determine whether Brooks Run ·is, in fact, in default. The Secretary
states that she does not ~ppose Brooks Run' 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 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).

1

Brooks Run states it did not file a contest earlier because of "the occurrence of a
. vacation period." Mot. at 2.
27 FMSHRC 549

Having reviewed Brooks Run' s motion, in the interests of justice, we remand this matter
to the Chief Administrative Law Judge for a determination of whether Brooks Run is, in fact, in
default, and if so, whether good cause exists for Brooks Run'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.

M L~dan, conJ.VsSiOllef

27 FMSHRC 550

Distribution

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Three Gateway Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22°d Floor
Arlington, VA 22209-2296
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 551

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 24, 2005

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2005-228
A.C. No. 36-07230-41768

v.
CONSOL PENNSYLVANIA COAL CO.

BEFORE: Duffy, Chainnan; 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. (2000) ("Mine Act"). On August 2, 2005, the Commission received from Consol
Pennsylvania Coal Co. ("Consol") a motion made by counsel to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

In its motion, Consol states that on November 4, 2004, the Department of Labor's Mine
Safety and Health Administration ("MSHA") "apparently" issued to the company the proposed
penalty assessment at issue. Mot. at 1. The company states, however, that it tias no record of
receiving the proposed assessment until it obtained a copy on July 15, 2005, though it also states
that it "intended to contest the penalties and underlying citations." Id. at 1-2. Although the
Secretary states that she does not oppose Consol's request for relief, she notes that MSHA' s
records include a signed return receipt for the proposed assessment dated November 13, 2004.
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, 7~6-89 (May 1993) ("JWR"). In evaluating requests to
27 FMSHRC 552

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 (Sep. 1995).
Having reviewed Consol'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 Consol'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.

27 FMSHRC 553

Distribution

R. Henry Moore, Esq.
Jackson Kelly, PLLC
Gateway Center, Suite 1340
401 Liberty Ave.
Pittsburgh, PA 15222
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, Suite 9500
Washington, D.C. 20001

27 FMSHRC 554

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

August 26, 2005

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA) and
Docket Nos. PENN 2002-116
PENN 2003-54
PENN 2003-55
· PENN 2003-56

UNITED MINE WORKERS OF
AMERICA, LOCAL 1248, DISTRICT 2,
SUBDISTRICT 5

v.
MAPLE CREEK :MINING, INC.,
STEVE BROWN, employed by
MAPLE CREEK MINING, INC.,
ALVY WALKER, employed by
MAPLE CREEK MINING, INC., and
GREG ~LER, employed by
MAPLE CREEK MINING, INC.

BEF~RE:

Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

DECISION
BY: Duffy, Chairman, and Young, Commissioner

In these consolidated civil penalty proceedings arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act" ), Administrative Law
Judge Jacqueline Bulluck affirmed an order issued by the Department of Labor's Mine Safety
and Health Administration ("MSHA") to Maple Creek Mining, Inc. ("Maple Creek"), alleging a
significant and substantial ("S&S") violation of 30 C.F.R. § 75.380(d)(l), which requires that
each designated escapeway in an underground coal mine "be maintained to always assure passage
27 FMSHRC 555

of anyone, including disabled persons." 26 fMSHRC 539, 543-48 (June 2004) (ALT). The
judge further found that the violation was due to the operator's unwarrantable failure and that
Maple Creek employees Steve Brown, Alvy Walker, and Greg Miller were also liable for the
violation under section llO(c) of the Mine Act, 30 U.S.C. § 820(c). 26 FMSHRC at 548-53.
Maple Creek and the three employees jointly filed a petition for discretionary review of the
judge's decision, which the Commission granted. For the reasons that follow, we affirm in part
and reverse in part.

I.
Factual and Procedural Background
Maple Creek owns and operates the Maple Creek Mine, an underground bituminous coal
mine in Washington County, Pennsylvania. 26 FMSHRC at 541. Undulations in the coal seam
and the steady infiltration of water by percolation through the mine floor and seepage from the
coal seam and the mine roof cause accumulations of water at low points in the mine's entries.
These conditions are such that between 1.2 and 2 million gallons of water are pumped from the
mine daily. Id.
In the 4 West section of the mine, the track entry, ventilated with intake air, was the
primary escapeway. Id.; MCM Bxs. 1 & 2. The adjacent travelway, ventilated with return air,
was designated as a secondary escapeway. 26 FMSHRC at 541; Tr. 385. In late July and early
August 2001, the track in the primary escapeway ended at crosscut 15 or 16. 26 FMSHRC at
541. Scoops delivered supplies from there to the working face, which was at or near crosscut 30.
Id.
On July 30, 2001, Mine Inspector Dennis Walker of the Pennsylvania Department of
Environmental Protection's Bureau of Deep Mine Safety conducted a regular state quarterly
inspection of the mine. Id. at 542; Tr. 32-33. He issued a state compliance order for water
accumulation in the 4 West section to midnight shift section foreman Greg Miller. 26 FMSHRC
at 542, 546. The compliance order stated that between crosscuts 24 and 25, in an area 40 to 50
feet in length, there was water 12 inches deep from rib to rib that created slippery walking
conditions. Id. at 542; Gov't Ex. 1 at 1. The order required that Maple Creek remove the water
or pump it to a reasonable depth by 8:00 a.m. the next day, July 31. 26 FMSHRC at 542; Gov't
Ex. 1 at I. Dennis Walker did not return to the mine in the following days, but was told a few
days later by Steve Brown, the 4 West section coordinator who had accompanied him on at least
part of the inspection, that the water had been removed by pumping. 26 FMSHRC at 542; Tr. 58;
Gov'tEx. 2.
On August 9, 2001, MSHA Inspector James Dickey was at the mine to conduct a regular
Triple-A inspection. 26 FMSHRC at 542. He was still above ground when he came upon
MSHA Inspector George Rantovich in a discussion with miners Thomas Sutton and Jim
Constable, UMWA safety committeemen at Maple Creek. Id.; Gov't Ex. 3. They were
27 FMSHRC 556

discussing water in the mine. 26 FMSHRC at 542. 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 nothing was being done about it. Id.; Gov't Ex. 3. Dickey thereafter
reviewed the preshift (Gov't Ex. 8) and onshift record books for the 4 West section back to at
least July 31, 2001. 26 FMSHRC at 542.
While traveling through the section, Dickey encountered an accumulation of water that he
considered extensive, deep, "mucky," and very difficult to walk in. Id. Dickey informed the two
men accompanying him, day shift assistant general mine foreman Paul Henry and miner Robert
Maust, that he would be issuing a withdrawal order pursuant to section 104(d) of the Mine Act,
30 U.S.C. § 814(d). 26 FMSHRC at 542. Dickey later issued such a withdrawal order, 1 charging
a violation of 30 C.F.R. § 75.380(d)(l). 26 FMSHRC at 542. To abate the violation, Maple
Creek built a 6-foot-wide bridge over the entire length of the accumulation, and the order was
tenninated early the following morning. 26 FMSHRC at 543; Gov't Ex. 9 at 3.
A hearing was held on the order, at which the United Mine Workers of America, Local
1248, District 2, Subdistrict 5 ("UMWA"), participated as an intervenor. 26 FMSHRC at 540.
In her decision following the hearing, the judge concluded that the primary escapeway on the 4
West section was not maintained in a safe condition that would permit passage of all persons,
and therefore that Maple Creek had violated section 75.380(d)(l). Id. at 547. The judge also
found the violation was S&S, because a hazardous condition resulted from the violation and
because there was a reasonable likelihood that it would result in injuries of a reasonably serious
nature. Id. at 548. Based on her finding that Maple Creek's actions with respect to the hazardous
escapeway conditions reflected indifference and a serious lack of reasonable care, the judge also
concluded that the violation was attributable to Maple Creek's unwarrantable failure. Id. at 54851. The judge also found that Brown, Alvy Walker, and Miller were each liable under section
1 IO(c) for the section 75.380(d)(l) violation. Id. at 551-53.
II.

Disposition
Maple Creek contends that the evidence establishes that the area of the escapeway at issue
was passable, both with respect to the miners who would walk it and those who might need to
carry a disabled miner on a stretcher. MCM Br. at 10. The operator asserts that the conditions in
the escapeway, when viewed properly in context, were not as poor as the judge's decision makes
them appear, so that the judge's finding of violation is unsupported by substantial evidence in the
1

Maple Creek was already on the ''D chain" as a result of an unchallenged citation and
order from 6 weeks prior. 26 FMSHRC at 543 n.3. The "D chain" refers to the increasingly
severe sanctions provided by section 104(d) of the Mine Act, 30 U.S.C. § 814(d), which are
intended to serve as an incentive for operator compliance. See Nacco Mining Co., 9 FMSHRC
1541, 1545-46 (Sep. 1987); Cyprus Cumberland Res. Corp., 21FMSHRC722, 725 (July 1999).
27 FMSHRC 557

record. Id. at 11. Maple Creek also argues that, because the condition of the escapeway did not
rise to the level of a hazard and it was unlikely that it would c·ontribute to a serious injury, the
judge's S&S determination should be reversed. Id. at 12. Maple Creek further maintains that the
judge's unwarrantable failure finding is not supported by substantial evidence, and that the
evidence shows that Maple Creek was actively maintaining its escapeways by, among other
things, diligently working on pumping water from the area in question. Id. at 13. Maple Creek
also contends that the section l lO(c) charges filed against its three employees are arbitrary and an
abuse of agency discretion in light of the agency's decision not to file a section llO(c) case
against the mine foreman. Id. at 16. Maple Creek concludes that, in any event, substantial
evidence does not support the judge's finding of liability for any of the three men because all of
them had been actively involved in the operator's extensive efforts to address the water
accumulation in the escapeway. Id. at 15.
In response, the Secretary urges affirmance of the finding of violation, citing evidence she
maintains supports the judge's detennination that the escapeway was not safe for persons during
an emergency evacuation of the mine. S. Br. at 15-20." The Secretary also submits that the
judge's finding that the violation was S&S is supported by substantial evidence. Id. at 21-23.
The Secretary argues that Maple Creek does not dispute many of the findings the judge made in
support of the unwarrantable failure conclusion, that those findings support the unwarrantable
failure determination, and that the Commission should affirm the judge's finding that Maple
Creek's efforts to abate the condition of the escapeway were "woefully ineffective." Id. at 23-30.
Intervenor UMWA agrees with the Secretary, asserting that it is not enough for an operator to
engage in some action related to a mine hazard, but rather an operator's actions must be effective.
UMWA Br. at 5-6. The Secretary maintains that her decision not to file section llO(c) charges
against the mine foreman is unreviewable, and that the judge's section 110(c) findings are all
supported by substantial evidence. S. Br. at 31-35.
All four Commissioners affirm the judge's findings that Maple Creek violated section
75.380(d)(l) and that the violation was S&S. Chairman Duffy and Commissioner Young, joined
by Commissioner Jordan, also affirm the judge's findings that the violation was unwarrantable
and that Steve Brown is individually liable for the violation under section l lO(c). Chairman
Duffy and Commissioner Young, joined by Commissioner Suboleski, reverse the judge's
findings that Alvy Walker and Greg Miller are individually liable for the violation under section
llO(c).
A.

Violation

Section 75.380 requires that underground coal mine operators designate "at least two
separate and distinct travelable passageways" as escapeways, that "[e]scapeways shall be
provided from each working section," and that "[e]ach escapeway shall be . .. [m]aintained in a
safe condition to always assure passage of anyone, including disabled persons." 30 C.F.R.

27 FMSHRC 558

§ 75.380(a), (b)(l) & (d)(l). 2 The judge determined that the escapeway here failed to meet the
standard because from the time the state compliance order was issued until the issuance of the
withdrawal order by Inspector Dickey, work crews were routinely forced to use the narrow
walkway or "cow path" along the right rib in order to avoid the 6 to 17-inch-deep muck that had
accumulated in the escapeway between crosscuts 24 and 27. 26 FMSHRC at 547. The judge
found that the conditions created a slip and fall hazard that precluded swift passage through that
portion of the escapeway. Id. She further found that a team of miners carrying a stretcher would
have to negotiate the slippery rutted bottom of the center of the escapeway, thus endangering the
safety of those carrying the' stretcher and delaying medical attention to the injured miner. Id.

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)). In reviewing the whole record, an appellate tribunal must consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). Under the substantial evidence
test, the Commission may not "substitute a competing view of the facts for the view [an] ALT
reasonably reached." Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C.
Cir. 1983).
The judge's finding of violation here is supported by substantial evidence. Prior to trial,
the parties by stipulation established the conditions of the escapeway to a significant extent.
They agreed that, on the day the withdrawal order issued, water was present in the intake
escapeway of the 4 West section in varied depths and extended for approximately 420 feet. 26
FMSHRC at 541. Moreover, Maple Creek's assistant mine foreman Henry conceded that, as a
result of equipment tramming through the fire clay bottom, the water/clay mixture soon became
dark, thick, soupy "mud and slop" that at some points extended from rib to rib. Tr. 747, 770-71,
776.
Maple Creek takes issue with the measurements taken by Inspector Dickey that persuaded
the judge to find that the water was as much as 17 inches deep. See 26 FMSHRC at 547. Stating
that the deeper measurements were taken in ruts created by the passage of scoops delivering
supplies to the face, the operator argues that the depth of the water should be considered in the
context of the mine area, where the roof was over 9 feet high. MCM Br. at 11. While Maple
Creek is correct regarding the method of measurement, that does not necessarily detract from the
judge's finding that there was a hazard. In the words of section foreman Alvy Walker, the water
2

Section 75.380 was originally derived from section 317(f) of the Federal Coal Mine
Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976) ("Coal Act"), which was carried
over without change to the Mine Act, 30 U.S.C. § ·877(f)(l).
27 FMSHRC 559

had "slurried up" (Tr. 659-60), and the mine floor and the drop-offs could not be seen by the
miners, who could suddenly step off from an area of 6-inch water into 12 to 17 inches of water.
Tr. 126. Moreover, there was testimony that the floor beneath the mud was littered with coal that
had sloughed off the ribs. · Tr. 158-59. The ample headroom provided by the high roof thus did
little to mitigate the hazards on the floor which unnecessarily impaired the utility and safety of
the escapeway.
Maple Creek also cites the ability of its miners to make it through the area to and from
their work places each day as evidence that the escapeway was passable and, thus, in compliance
with the regulation. MCM Br. at 10. In so doing, Maple Creek ignores the fact that at those
times the miners were not using the route as an escapeway to evacuate the mine. During an
emergency evacuation, miners would likely need to move expeditiously through the area in order
to seek safe passage away from what could be a dangerous underground environment. See 61
Fed. Reg. 9764, 9810 (Mar. 11, 1996) (preamble to section 75.380). 3 Assistant mine foreman
Henry admitted that the condition of the escapeway would slow the evacuation of miners, as they
would have to be more cautious in the area. Tr. 788.
Of particular importance in determining whether an escapeway is adequate under section
75.380 is the ability of miners to transport an injured miner on a stretcher through it. Maple
Creek does not take issue with the judge's finding that the cow path was too narrow to
accommodate a team with a stretcher (26 FMSHRC at 547), but instead argues that it presented
sufficient evidence to establish that a stretcher carrying an injured miner could have passed
through the area off of the cow path, and that there was an alternate escapeway available in any
event. MCM Br. at 10. The evidence to which Maple Creek refers is the testimony of Brown
and Alvy Walker. Id. Brown testified that he could have carried a stretcher through the area, but
went on to state that he would have used the alternate escapeway. Tr. 497. Alvy Walker testified
that two miners could have walked ahead of the stretcher team to show them where the holes in
the floor were located. Tr. 661.
That testimony does not support the notion that the requirements of section 75.380(d)(l)
were being met with respect to safe passage by a stretcher team. Alvy Walker would have
required two additional miners to remain behind with the stretcher team, thus delaying their exit
from the mine. The judge properly rejected this idea when she stated that "miners [should] not
be confronted with risking life and limb to come to the aid of each other." See 26 FMSHRC at
547.

3

Moreover, Maple Creek's reference to the daily passage of miners through the
escapeway is not to their use of the escapeway through the water, but rather to the narrow cow
path walkway along its right rib, which at points was as narrow as 12 inches. 26 FMSHRC at
541; MCM Br. at 10; Tr. 620-21. Reliance on suc.h a narrow route to serve as an escapeway
clearly runs counter to the requirement of section 75.380(d)(4) that escapeways be maintained at
a width of 6 feet, except in circumstances not applicable here.
27 FMSHRC 560

We also reject Maple Creek's suggestion that the judge erred in ignoring the existence of
an alternate escapeway. The regulation is clear that the maintenance requirement of section

.75.380(d)(l) applies to "each" escapeway. More than one escapeway is required, not in
recogllition that conditions routine to the mine might prevent use of one of the escapeways, but
rather because the emergency condition that causes the need to evacuate the mine may prevent
use of one of the escapeways. The Senate Committee which was responsible for drafting the
Coal Act explained the two-escapeway requirement in the following manner:
Mine fires, extensive collapse of roof, or similar occurrences may
completely block the regular travelway between the working section and the
surface, thus cutting off escape in an emergency unless an alternate route is
provided to the surface. As recently as March 1968, 21 men at a salt mine lost
their lives because a travelable second escapeway was not provided.
S. Rep. No. 91 -411, at 83 (1969), reprinted in Senate Subcomm. on Labor, Comm. on
Labor and Public Welfare, 94th Cong., Part I Legislative History of the Federal Coal Mine
Health and Safety Act of 1969, at 209 ( 1975).
Lastly, Maple Creek contends that the judge improperly rejected its contention that a
scoop could have been used to transport an injured miner through the water. MCM Br. at 10.
Maple Creek's evidence consisted of the testimony of Brown, Alvy Walker, Miller, and Maust.
The judge credited the testimony of Inspector Dickey over those witnesses on the issue of
whether using a scoop would be a safe method of transportation. 26 FMSHRC at 547. A judge's
credibility determinations are entitled to great weight and may not be overturned lightly. Farmer
v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3
FMSHRC 2767, 2770 (Dec. 1981). The Commission has recognized that, because the judge "has
an opportunity to hear the testimony and view the witnesses[,] he [or she] is ordinarily in the best
position to make a credibility determination." In re: Contests ofRespirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729
F.2d 713, 719 (I Ith Cir. 1984)), aff'd sub nom. Secretary ofLabor v. Keystone Coal Mining
Corp., 151F.3d1096 (D.C. Cir. 1998).
We see no basis to overturn the judge's credibility determination. The witnesses cited by
Maple Creek testified that a scoop was an available means of transport through the escapeway,
but they did not address how safely an injured person can be carried in one. Tr. 127, 507, 630,
671. In contrast, both Dickey and miner John Baluh testified about the further harm that
traveling in a scoop could cause to an injured miner. Tr. 216, 302-04.
In summary, substantial evidence supports the judge's determination that Maple Creek
violated section 75.380(d)(l).

27 FMSHRC 561

B.

S&S

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. See Cement Div., Nat'l Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the
Commission further explained:

In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard - that is, a
measure of danger to safety - contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Secretary of La.bar, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria). Resolution of whether a violation is S&S must be based "on the particular
facts surrounding the violation." Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2012-13 (December 1987). An evaluation of
the reasonable likelihood of injury should be made assuming continued normal mining
operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).
Maple Creek contends that the conditions at issue here did not rise to the level of a
hazard, and thus takes issue with the judge's finding that the section 75.380(d)(l) violation
satisfied the second Mathies element. MCM Br. at 12. The judge based her hazard findings in
part on the testimony of the miners who walked through the area each day. 26 FMSHRC at 548.
There was extensive testimony that if they chose to pass through the water, miners were subject
to slippery walking conditions, given the uneven bottom obscured by the muddy water. Id. at
545; Tr. 202. Inspector Dickey stepped into several holes while walking through the center of
the escapeway and, when he did so, the water level was over the top of his 15-inch boots. 26
FMSHRC at 544. The coal that had sloughed off the ribs and was concealed on the floor posed
an added tripping risk. Id. at 545; Tr. 158-59.4

4

While the cow path may have provided an arguably safer route than the remainder of
the escapeway, it was not without its own hazards. Miner Maust testified that caution was
necessary because a person walking on the cow path could slip from it into the water and the
holes in the bottom. 26 FMSHRC at 544; Tr. 103.
27 FMSHRC 562

In arguing that the condition was not hazardous, Maple·Creek essentially ignores the
judge's finding attributing the injuries suffered by roof bolter John Gargala to the condition of
the escapeway. See 26 FMSHRC at 548. On the shift immediately preceding the shift during
which Dickey issued the withdrawal order, Gargala had slipped and fallen while walking on the
cow path, spraining his wrist and straining his back. Id.; Tr. 138-42; Gov't Ex. 16. Thus, there
is evidence that the hazard observed created not only the potential for injury but had actually
contributed to a miner's injury.

Maple Creek also believes that the judge erred in finding that the fourth Mathies element
- the reasonable likelihood that an injury resulting from the hazard contributed to by the
violation will be of a reasonably serious nature - was satisfied. Maple Creek would have the
Commission reject the judge's finding that it was likely that the condition of the escapeway
would contribute to a serious injury on the basis of miners having passed through the area daily
without sustaining serious injury. MCM Br. at 12. However, the Secretary is not required to
show that a violation has resulted in an accident or injury in order to establish S&S. See Arch of
Kentucky, 20 FMSHRC 1321, 1330 (Dec. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC
673, 678 (Apr. 1987). 5
At the bearing, evidence of the seriousness of the injuries ·that could result from the
condition of the escapeway was provided by Inspector Dickey,6 who testified that it was
reasonably likely that slips and falls in the muck would result in leg and back injuries. Tr. 25758. Cf Southern Ohio Coal Co., 13 FMSHRC 912, 918 (June 1991) (recognizing that miners
could suffer serious injuries from stepping into unseen openings in surface they were traversing).
MSHA assistant district manager Thomas Light further noted that any delay in miners evacuating
the mine in an emergency increased the danger posed by the emergency, as the delay could
prevent miners from getting out alive. Tr. 338-39, 373.
While Maple Creek relies heavily on the existence of alternative escapeways as a means
by which miners could avoid the conditions of the primary escapeway, the judge found, and
Maple Creek does not dispute, that the mine had been experiencing methane and ventilation
problems when the withdrawal order issued. See 26 FMSHRC at 548; Gov't Ex. 17 at 2. The

5

In so arguing, Maple Creek again ignores that the miners making their way through the
area were not using the route as an escapeway, but rather merely as a travelway to their jobs. As
discussed above, use of the route as an escapeway is an entirely different matter; in those
circumstances miners would be seeking quick exit from the mine in an emergency. The potential
for sl~ps and falls would therefore be even greater during a mine evacuation. Consequently, the
miners' everyday travel over the escapeway route is of little relevance to the fourth Mathies
element.
6

In Mathies, the Commission specifically noted that an inspector's judgment is an
important consideration in the Commission's determination of whether a violation is S&S. 6
FMSHR.Cat5.
27 FMSHRC 563

judge specifically noted the danger posed if miners were deprived of their fastest means of
evacuation, the primary escapeway ventilated with intake air. 26 FMSHRC at 548.

In light of the foregoing, substantial evidence supports the judge's conclusion that Maple
Creek's violation of section 75.380 was S&S.
C.

Unwarrantable Failure

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc. v. -MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarranW:ble failure
test).
The Commission has recognized that whether conduct is "aggravated" in the context of
unwarrantable failure is determined by considering the facts and circumstances of each case to
determine if any aggravating or mitigating circumstances exist. Aggravating factors include the
length of time that the violation has existed, the extent of the violative condition, whether the
operator has been placed on notice that greater efforts were necessary for compliance, the
operator's efforts in abating the violative condition, whether the violation was obvious or posed a
high degree of danger, and the operator's knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ("Consol"); Cyprus Emerald Res.
Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir.
1999); Midwest Material, 19 FMSHRC at 34; Mullins & Sons Coal Co., 16 FMSHRC 192, 195
(Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992); BethEnergy Mines, Inc.,
14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June
1988). All of the relevant facts and circumstances of each case must be examined to determine if
an actor's conduct is aggravated, or whether mitigating circumstances exist. Consol, 22
FMSHRC at 353.
The judge addressed the relevant aggravating factors, and many of her findings are
undisputed by Maple Creek or have been already addressed herein. Maple Creek clearly knew
that it had a problem with water in that area of the 4 West section intake escapeway and that
greater efforts were necessary for compliance. That area usually had only 2 or 3 inches of water
(Tr. 665), but on July 30 Maple Creek was issued the compliance order by the state inspector that

27 FMSHRC 564

described a 12-inch accumulation of water in the numbers 24 and 25 crosscuts that was causing
slippery walking conditions. Gov't Ex. 1 at 1.7
Maple Creek also does not take issue with the judge's finding that the condition of the
escapeway was obvious. See 26 FMSHRC at 551. The judge noted that "muck" 12 to 17 inches
deep in places is, "of course," obvious. Id. That miners used the cow path to avoid walking
through the muck further demonstrates that the condition in question was obvious.
As for the danger posed by the condition of the escapeway, much of the judge's reasoning
rests on the same grounds which support her S&S finding. In addition to t~e slip and fall hazard
posed by the condition, the judge specifically examined the consequences of a stretcher team
having to navigate through the escapeway. Id. She found that not only would a stretcher team be
subject to the same slip and fall hazard to which the other miners using the escapeway would be
exposed, but the condition of the escapeway could delay the team's evacuation of the mine. Id.
This could delay the provision of critical medical treatment to the injured miner. Id. The judge
aJso noted that in the event of a fire or explosion, impeded evacuation of the mine could result in
the death of miners. Id. As we have found with respect to her S&S finding, substantial evidence
amply supports the judge's conclusion regarding the danger posed by the condition of the
escapeway.
The parties dispute the duration of the violation and the import of the actions Maple
Creek was taking to combat the water accumulation. At trial, Brown testified that the
intermittent notations in the preshift examination records about the water problem in the area at
issue provided an indication that Maple Creek successfully pumped much of the excess water
out, only to have it soon accumulate again. 26 FMSHRC at 550; Tr. 486-87. On appeal, Maple
Creek contends that the judge ignored this evidence that it was attempting to correct the
condition, which it believes mitigates the violation's unwarrantability. MCM Br. at 14.
As her decision shows, the judge did consider Maple Creek's evidence. See 26 FMSHRC
at 549-50. She rejected it, however, and concluded that, from the time the state compliance order
was issued until the MSHA withdrawaJ order was issued, the water accumulation remained at a
7

Even if Commissioner Suboleski' s dissenting position on the preshift records is
accepted (see slip op. at 22-23), any error by the judg~ is harmless. The records themselves
indicate that the escapeway was occluded by significant water for five consecutive shifts, from
July 31 to August 1 and again from August 7 to August 9. Gov't Ex. 8. This evidence,
combined with the record's indication that Maple Creek has been cited 18 times in the previous 2
years for violations of the escapeway standard in section 75.380(d)(l), provides substantiaJ
support for the judge's conclusion and indicates a repeated, if not chronic, failure to always
ensure the escapeways are travelable. 26 FMSHRC at 553; Stip. 13 (Tr. 17); Gov't Ex. 13.
Taking the evidence as a whole, it is reasonable for the judge to have inferred from those
circumstances indifference to the seriousness and persistence of the problem, given the
ineffectiveness of the operator's efforts to control it.
27 FMSHRC 565

level that continuously prevented safe travel by all persons through the primary escapeway. Id. at
549. The judge based her conclusion on the testimony of miners that the water was present at a
high level for at least a week, as well as on her finding, drawn from the testimony of Maple
Creek management officials, that the company did not approach the water problem with the
seriousness it deserved. While the judge's conclusion is contradicted to a degree by the preshift
records, which show that high water levels were only noted during the July 31-August 1 and
August 7-August 9 time frames (Gov't Ex. 8), that is not a sufficient basis to vacate her
unwarrantable failure finding.
We agree with the judge that the testimony of the Maple Creek management officials
indicates a lack of seriousness on the part of Maple Creek with respect to water accumulation in
the escapeway. Brown testified that before he would consider the conditions hazardous, as
opposed to a "condition" to be managed, the water would have to be waist high in the escapeway,
and that even then if a secondary escapeway were open, he would not be worried because the
second escapeway would provide another way out of the mine. Tr. 550. Brown's standard for
the water's depth becoming a hazard was similar to that of Alvy Walker, who testified that so
long as the water in the escapeway in question did not exceed 20 inches and prevent a miner from
moving his legs through it, he would not consider the conditions hazardous. Tr. 635-36. Miller
was also of the opinion that the water would have to be higher than that measured in this case for
him to consider the conditions hazard.ous, as in this instance miners could get through it if
necessary. Tr. 692-94. Similarly, section foreman Richard Cline believed the water would have
to be over the top of his 16-inch boots before it would be hazardous. Tr. 598.
We believe that this testimony of the Maple Creek supervisors provided ample grounds
for the judge to infer that Maple Creek management did not approach the water problem in the
section with the seriousness it deserved. "[T]he substantial evidence standard may be met by
reasonable inferences drawn from indirect evidence." Mid-Continent Res., Inc., 6 FMSHRC
1132, 1138 (May 1984). Inferences drawn by the judge are "permissible provided they are
inherently reasonable and there is·a logical and rational connection between the evidentiary facts
and the ultimate fact inferred." Id. In our view, it was eminently reasonable for the judge to
infer from the foregoing testimony that Maple Creek simply did not view the condition of the
escapeway as hazardous and therefore was not putting a high priority on bringing the escapeway
into compliance with section 75.380(d){l).
In light of the evidence, we agree with the judge that Maple Creek' s actions reflect a
threshold level of indifference and serious lack of reasonable care sufficient to establish an
unwarrantable failure to comply with section 75.380(d)(l).

D.

Section 1 lO(c) Liability

Section 110(c) of the Mine Act provides that whenever a corporate operator violates a
mandatory health or safety standard, a director, officer, or agent of such corporate operator who
knowingly authorized, ordered, or carried out the violation shall be subject to an individual civil
27 FMSHRC 566

penalty. 30 U.S.C. § 820(c). The proper legal inquiry for de~ermining liability under section
l lO(c) is whether the corporate agent knew or had reason to know of a violative condition.
Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), affdon other grounds, 689 F.2d 632 (6th Cir.
1982), cert. denied, 461U.S.928 (1983); accord Freeman United Coal Mining Co. v. FMSHRC,
108 F.3d 358, 362-64 (D.C. Cir. 1997). To establish section llO(c) liability, the Secretary must
prove that an individual knew or had reason to know of the violative condition, not that the
individual knowingly violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131
(July 1992) (citing Uniied States v. lnt'l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)). A
knowing violation occurs when an individual "in a position to protect employee safety and health
fails to act on the basis of infonnation that gives him knowledge or reason to know of the
existence of a violative condition." Kenny Richardson, 3 FMSHRC at 16. Section llO(c)
liability is predicated on aggravated conduct constituting more than ordinary negligence.
BethEnergy, 14 FMSHRC at 1245.
Maple Creek requests that the Commission consider the Secretary' s failure to charge the
mine foreman as a ground to overturn the judge' s findings of liability on the part of the three
supervisory personnel who were charged under section llO(c). MCM Br. at 16. Maple Creek
cites no law in support of this extraordinary request, and we are aware of none. We are thus left
to review the judge' s findings regarding their individual liability under the substantial evidence
standard.
1.

Steve Brown

In concluding that Steve Brown was individually liable.for the section 75.380(d)(l)
violation, the judge relied on Brown's familiarity with the conditions of the escapeway during the
10 days preceding the issuance of the withdrawal order. 26 FMSHRC at 551-52. The judge
found that Brown was well aware of the conditions, yet failed to take expeditious, effective
remedial action to protect the safety of miners who traveled through the primary escapeway daily,
as well as those miners who would have to evacuate the mine in an emergency. Id. There is
substantial record evidence to support the judge's conclusion. As 4 West section coordinator,
Brown oversaw operations on the section, including the pumping operations and maintenance of
the pumps. Tr. 378, 391-93, 538-39. Brown traveled with the state inspector who issued the
compliance order on July 30, and was responsible for abating that order. Tr. 535-36. Brown
walked the section at least once a day, including the cow path, conducted some of the preshift
examinations of the section, and reviewed the preshift and construction logs. Tr. 482-84, 553-54.

Most importantly, and as the judge found, Brown was aware that the pumping he was
responsible for overseeing was ineffective in removing the muck. 26 FMSHRC at 552.
Inspector Dickey explained that the pumps Maple Creek was using, because they were air pumps,
were incapable of removing muck and mud, so that the use of the pumps would not have changed
his designation of the violation as unwarrantable. Tr. 325-26. Brown conceded that while the air
pumps were sufficient to remove water, they could not remove muck. Tr. 402, 408, 480-81.
Moreover, Brown explained that scoops running by the pumps would create the muck which
27 FMSHRC 567

would clog the pumps, and in some instances, as happened during the time in question, run into a
pump and put it out of service. Tr. 393, 407, 414, 415, 481 -82, 493. This was a serious problem,
since the pumping system Maple Creek was using for the escapeway was interconnected, so that
when ·o ne pump shut down the other pumps in the system would also shut down. Tr. 389-90,
411-12, 513, 555.
Brown nevertheless did not think additional steps were necessary to deal with the
expanding accumulation of water in the area in question. Tr. 507-08, 537-38, 553-54, 561-62,
564-65. Because the evidence is overwhelmingly to the contrary, and because Brown was in a
position to protect employee safety yet failed to act on the basis of information that gave him
reason to know that the escapeway's condition violated the standard, we affirm the judge's
finding that Brown should be held liable under section l lO(c) for the section 75.380(d)(l)
violation.
2.

Alyy Walker and Greg Mi11er

Alvy Walker was a day shift section foreman, and Greg Miller was a midnight shift
section foreman. 26 FMSHRC at 552. Their crews passed through the area in question on the
way to the face. Id. at 552-53. Each was also occasionally responsible for conducting a preshift
examination that included the area in question. Id; Gov' t Ex. 8. The judge held each liable for
the section 75.380(d)(l) violation because each knew of the violative conditions and failed to
take effective remedial action to address the water accumulation problem. 26 FMSHRC at 55253.
A review of the record indicates a lack of evidence regarding the judge's findings that
Alvy Walker and Miller engaged in aggravated conduct that is more than ordinary negligence.
Compare Austin Powder Co., 21FMSHRC18, 26-27 (Jan. 1999) (affirming section llO(c)
finding where foreman was standing near miners who lacked the fall protection they should have
been wearing). As Brown explained, the primary responsibilities of Alvy Walker and Miller
were at the face, so that is where they spent as much of their time as possible. Tr. 474. If they
were having any problems in their section or in getting to their section, they would report it to
Brown. Tr. 539. There is no allegation that they withheld information from Brown or that they
otherwise kept Maple Creek management in the dark regarding the conditions of the escapeway
during the time in question. In fact, the preshift reports show that both reported the water
accumulations. Gov't Ex. 8 at 17, 40.
As was established by more than one witness at the hearing, different outby foremen were
responsible for dealing with areas outby the face, including the water problem. One foreman,
along with his two-man crew, did nothing but 'YOrk on the lines and pumps designed to remove
the water. Tr. 392-93, 413-17, 474, 640, 680, 725. However, Miller explained:
I was not assigned specifically on the outby area. I was strictly assigned to the
face boss. At that particular time due to the length of travel, the nature of the

27 FMSHRC 568

water we had in-that area, we had outby foremen and people assigned to maintain
the pumps. That wouldn't have been my specific job to know anything about it or
to do anything about it as far as being assigned by the company to direct out a
work order to get this taken care of.
Tr. 724-25.8
We agree with the judge that Brown is liable under section 110(c) for the section
75.380(d)(l) violation, because the water accumulation was expanding while the same
ineffective pumping system was being used under Brown's direction. The same rationale does
not apply to Alvy Walker and Miller, however. While the two face foremen may have had views
similar to Brown regarding the point at which the water accumulation would become a hazard,
that does not establish that either possessed the power to take remedial action to eliminate the
potential escapeway hazard involved here, i.e., neither was authorized to redesign the pumping
system or to construct an alternative walkway. The two foremen had taken certain actions to
address the problem of excess water in the escapeway such as consistently reporting the water
accumulations and (in the case of Walker) sending two miners to repair a malfunctioning pump.
Tr. 623-24, 650-51; Gov't Ex. 8 at 17, 40. On balance, we conclude that the two foremen's lack
of authority to take necessary remedial action is a significant factor in this case and that their
failure to take further action under these circumstances did not constitute aggravated conduct that
amounts to more than ordinary negligence under section 110(c ).9
Moreover, the Secretary made no attempt at the hearing to establish the actions of Alvy
Walker and Miller that were lacking, and her trial brief is entirely silent on this point. See
Sec'y's Proposed Findings of Fact, Conclusions of Law, and Supporting Memorandum at 25-27.

8

Brown did state that all foremen, when they passed by pumps during their travels
through the section, were expected to check whether the pumps were working. Tr. 393, 417-18.
However, there was no evidence presented that either Alvy Walker or Miller failed to do so.
Indeed, when Alvy Walker learned of a pump down on his way to the face on August 9, he sent
two men from his crew to try to repair it once they had retrieved their tools from the face area.
Tr. 623-24, 650-51.
9

We disagree with Commissioner Jordan, who in her dissent suggests that we have
changed the standard that guides imposition of liability under section llO(c). Slip op. at 17-18.
Contrary to her statement, in determining whether a corporate agent has engaged in aggravated
conduct under section l lO(c), the Commission has examined the agent's authority to take
remedial action in the face of unsafe conditions. E.g., Kenny Richardson, 3 FMSHRC at 17
("Richardson, in view of his position as day shift master mechanic with general supervisory
authority over the dragline, . .. should have removed it from service."). Nothing in Kenny
Richardson nor any other Commission decision requires that, to avoid section llO(c) liability,
Alvy Walker and Miller had to do more to eliminate the hazard where they lacked authority to do
so.
27 FMSHRC 569

This is a fatal flaw, given that the Secretary has the burden of proof, including proof that the
conduct at issue was aggravated. See Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987) (in
an enforcement action before Commission, Secretary bears burden of proving any alleged
violation); Peabody Coal Co., 18 FMSHRC 494, 498 (Apr. 1996) (Secretary bears burden of
proving conduct is unwarrantable). Given the lack of any evidence on this prerequisite to a
finding of individual liability, we reverse the judge's section llO(c) determ.inations with respect
to foremen Alvy Walker and Greg Miller.

m.
Conclusion
For the foregoing reasons we affirm the judge's determ.inations that Maple Creek violated
section 75.380(d)(l), that the violation was S&S, that the violation was due to Maple Creek's
unwarrantable failure, and that Steve Brown was liable for the violation under section llO(c).
We reverse the judge's determinations that Alvy Walker and Greg Miller were liable for the
violations under section llO(c).

27 FMSHRC 570

Commissioner Jordan, concurring and dissenting:
I agree with my colleagues in the majority that Maple Creek violated section 30 C.F.R.
§ 75.380(d)(l), that the violation was significant and substantial and constituted an
unwarrantable failure, and that Steve Brown is liable for the violation under 110(c) of the Mine
Act, 30 U.S.C. § 820(c). However, I disagree with their conclusion that Alvy Walker and Greg
Miller are not individually liable.
The judge held that Walker and Miller were liable under section 110(c) of the Mine Act,
finding that they knew of the violative condition and that their failure to take effective remedial
action constituted aggravated conduct. 26 FMSHRC 539, 552-53 (June 2004) (AU). We review
her findings by applying the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I).
"Substantial evidence" means "'such relevant evidence as a reasonable mind might accept as
adequate to support [the judge's] conclusion."' Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
My review of the record evidence leads me to conclude that the judge's finding that Walker and
Miller engaged in aggravated misconduct was eminently reasonable.
Neither my colleagues nor the operator dispute that Walker and Miller were "corporate
agents" of Maple Creek, an initial prerequisite for section llO(c) liability. 30 U.S.C. § 820(c).
Furthermore, the majority does not challenge the judge's finding that Walker and Miller had
knowledge of the violative condition, yet refused to consider the high water level to be
hazardous. 26 FMSHRC at 552-53. There is ample record evidence, including his own
admission, that Walker had received complaints from miners about the water problem. Tr. 104,
134-35, 157, 645-46. Nonetheless, he testified repeatedly that the water was not a hazard, Tr.
631, 639, and although the water conditions were characterized by the inspector as having the
consistency of "pig slop," Tr. 243, Walker contended that muck was only a hazard if a miner
could not move his or her legs through it. Tr. 635. Miller, who traveled through the primary
escapeway daily, Tr. 696, also asserted that the water was not a hazard, Tr. 670-71, and that it
would have to have been at "roof depth" before he would not have been able to get through it
"for survival." Tr. 690-91.
In spite of the unassailable evidence demonstrating Walker's and Miller's knowledge of
the water accumulation and their cavalier attitude regarding it, the majority reverses the judge's
finding of liability, concluding that there was insufficient record evidence showing that Walker
and Miller "possessed the power to take remedial action." Slip op. at 15. I find it significant that
this claim was never raised by Walker or Miller as a defense to the section l lO(c) charges, and
that the majority cites not one Commission case declining to find 110(c) liability on this basis.
Cf BethEnergy Mines, Inc. , 14 FMSHRC 1232 (Aug. 1992) (finding shift foreman liable under
section llO(c) because he was aware of hazardous conditions even though the shift foreman was
carrying out instructions of his superiors). This is a subtle, yet meaningful, sleight-of-hand
transformation of the longstanding section 110(c) case precedent that to establish the liability of
an individual who fails to act, he or she must simply be "in a position to protect employee safety

27 FMSHRC 571

and health," Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), affd on other grounds, 689 F.2d
632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983), which does not necessarily require the
authority to make extensive structural changes, contrary to the majority's suggestion. Slip op. at
15.
In fact, Walker testified that he could have protected his miners from the danger of the
high water level and mucky mine floor - had he acknowledged that these conditions posed a
hazard:

Q.

Now, Mr. Walker, if you came across an area that your
crew would have to go through and you considered it
perhaps to be somewhat hazardous for them to go through,
as the shift foreman, would you have the right to say, I'm
not going to take my crew through here, I'm going to take
them somewhere else.

A.

Certainly. That's my discretion.

Tr. 646. Nonetheless, the record indicates that he took his crew through the rising water of the
primary escapeway every day.
Contrary to the majority's conclusion that Walker did not possess "the power to take
remedial action," slip op. at 15, the record reflects (and the operator's arguments emphasize) that
he did. As the majority acknowledges, slip op. at 15 n.8, Walker testified that he sent two men
from his crew to try to repair a broken pump:
There were three pumps in that area. I physically saw water
seeping through from the return area into this track area. I did not
want that to compound the problem in this hole so I sent them [the
men] back immediately to take care of this situation and let me
know immediately what they needed, if they needed additional
parts .... I wanted to get someone on this situation right away, so I
sent my people back at that point.
Tr. 650-52. This is not the testimony of a foreman incapable of taking steps to protect his crew
.from the water accumulation problem at this mine, as my colleagues' opinion would suggest.
There is also record evidence that under the Commission's traditional section 1 IO(c)
standard requiring that the individual be "in a position to protect employee safety and health,"
Miller is liable under section 110(c). When asked at trial what he would have done if he thought
the conditions in the escapeway constituted a hazard, he testified that "I wouldn't stick my crew
through there and I would have notified my immediate foreman which would have been the shift
27 FMSHRC 572

boss on that particular shift." Tr. 673-74. Nothing in the record indicates that he took either
action.
Furthermore, the judge found Miller liable based in part on the fact that "[i]n terminating
the C~mpliance 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." 26
FMSHRC at 552 (citing Gov't Ex. 1 & Tr. 722-23). And indeed, Miller indicated at trial that he
could have taken steps io remedy the water situation if he believed the mine was not obeying the
state compliance order:
Q.

Did you feel you had - you were out of compliance with
this compliance order?

A.

If I had I would have took immediate action. What rm saying is I
don't know the depth, I didn't measure it, that's number one.

Tr. 713.
Perhaps most persuasive is Miller's own admission that he was in part responsible for the
elevated water level:

[Q.

Judge Bulluck:] In terms of your being responsible for this
condition, do I understand from your testimony that you're
saying if there was some violation that it wasn't your
responsibility?

A.

No ma'am. I'm just one of many.... I in no way imagine
take away any obligation on my part. rm in it with
everybody else. That's the way it has to be. . .. .

Tr. 729-30.
Notably, Maple Creek, in its brief, argues vigorously that Walker and Miller were
significantly engaged in the efforts to ameliorate the water level. Indeed, the operator states that
they "had been actively involved in the substantial efforts taken by Maple Creek to address the
water condition in the cited area. These facts are uncontroverted." MCM Br. at 15. The
operator also contends that "the undisputed evidence presented was that all three of these men
[Brown, Walker, and Miller] were addressing the water condition, as each had been actively
involved in the substantial efforts taken by Maple Creek to address the water." MCM Reply Br.
at 7 (emphasis in original). These assertions make it difficult for me to adopt the majority's view
that it was questionable whether Walker and Miller "possessed the power to take remedial
action." Slip op. at 15.

27 FMSHRC 573

For the foregoing reasons, I would affirm the section 110(c) violations of Walker and
Miller, and therefore respectfully dissent from the majority's ruling reversing the judge's finding
of liability against them.

~k~

MNY"t:Jiordan,t;6mmissioner

27 FMSHRC.574

Commissioner Suboleski, concurring and dissenting:
I agree with the majority regarding the merits of the violation and that the violation was
significant and substantial. I also agree with the majority's disposition of the section llO(c)
liability of Alvy Walker and Gregg Miller. However, I.disagree with the majority and· the
administrative law judge that Maple Creek's violation of the regulation was a result of its
unwarrantable failure. I believe that the judge failed to fully consider the facts leading up to the
August 9 citation and order, I as well as mitigating circumstances surrounding the violation. For
this reason, I would remand the unwarrantability detennination to the judge for further
. consideration.
It is undisputed that Maple Creek is a wet mine with depressions frequently filling up
with water. 26 FMSHRC 539, 541 (June 2004) (ALT). As the judge found, Maple Creek had an
extensive pumping system in place at the mine, pumping out between 1.2 to 2 million gallons of
water daily. 2 Id. Clearly, this was an operator that could not ignore the problem of water in its
mine if it intended to produce coal. The parties stipulated that water was in the intake escapeway
of the 4 West section in varied depths on August 9, 2001, and had been there for approximately 2
weeks previously. Id. And the Commission has concluded that the water was of sufficient depth
that it affirmed the citation for violating 30 C.F.R. § 75.380(d)(l), which requires that
escapeways be maintained in safe condition, that was issued on August 9. I fully concur in that
detennination and that the violation was S&S.
The judge's unwarrantability determination is premised on Maple Creek's actions in
response to the state compliance order that issued on July 30. I believe that the judge ignored or
did not sufficiently consider largely undisputed testimony concerning Maple Creek' s efforts to
combat the wet conditions in the 4 West section following the July 30 order. In this regard,
foreman Steve Brown testified that he brought in four pumps to the 4 West section to address the
water accumulation that had been cited by the state inspector. Tr. 390-91. Maple Creek's
actions appear to have been productive as evidenced by inspections of the area between August

1

When reviewing an administrative law judge's factual detenninations, the Commission
·
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion." Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). In reviewing the whole record, an appellate tribunal must consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
2

The fact that Maple Creek's pumping system removed this amount of water from a wet
mine belies the judge's description of Maple Creek's pumping system between July 30 and
August 9 as "woefully ineffective." 26 FMSHRC at 550.
27 FMSHRC 575

land 7. Tr. 578-81; Gov't Ex. 8. A foreman and a crew of two miners were responsible for
maintaining pumps in the 4 West section and worked in this area on the shift preceding the
August 9 order. Tr. 415-17.
While miner testimony established that they generally used the "cow path" adjacent to the
ribs to avoid the deepest water, this alone does not establish that the water level in the escapeway
was consistently high throughout the period after July 30. Unlike the judge, I do find an inherent
inconsistency between· the preshift log and the miner testimony regarding conditions in the
escapeway.3 While miner complaints about the condition of the escapeway continued after the
July 30 order, this is not inconsistent with the presence of residual water and muck that could not
be pumped out, despite Maple Creek's good faith efforts.4 Moreover, it is not apparent that
miner grumbling about conditions in the escapeway resulted in either formalized complaints to
MSHA or to Maple Creek under the collective bargaining agreement.
In discrediting evidence from Maple Creek regarding water in the escapeway, the judge
relied heavily on the operator's witnesses' referring to it as a "condition," rather than as a
problem or hazard. It appears to me that the reference to the water as a "condition" by all of
Maple Creek's witnesses was a product of over zealous preparation for trial. Nevertheless, for
whatever the reason the term was used, I cannot conclude that it is a reasonable or logical factual
basis upon which to premise a credibility resolution. See Consolidation Coal Co., 11 FMSHRC
966, 974 (June 1989) (the Commission will not affirm credibility determinations if there is
dubious evidence to support them). Whether the water in the escapeway was viewed as a

3

The judge's characterization of the log as reflecting "scattered notations of water
accumulation" indicates a fundamental misunderstanding of the log. The log shows a consistent
pattern of reporting the presence or absence of water, and a pattern that shows improved
conditions in the escapeway following July 30, including 15 consecutive shifts with no reports of
water accumulations in the escapeway. See Gov't Ex. 8. The breakdown of two pumps just prior
to the August 9 mine inspection coincided with the reappearance of water in sufficient depths to
again appear in the preshift log. Id. For this reason alone, I would remand this case to the judge
to reexamine the evidence regarding unwarrantability.
4

The testimony of the hourly workers can be reconciled with the preshift records. The
water level could be pumped down without the mud drying up - i.e., without changing
appearance much. In the darkness, walking along the "cow path," the miners would not be
looking over the entire entry; they would be concentrating only on their next step. The testimony
is that the water extended rib-to-rib for about half the distance at the time of the violation.
Whether they would be walking one-fourth of the distance or one-half of the distance in water,
and what the depth of that water was, would not be readily memorable months or years later to
those who traveled every day - they recall only walking in and out of water and alongside muck.
Indeed, the miners' (and foreman Walker's) testimony that it was much the same everyday
contradicts the record that it was twice as long on August 9 as it was on July 30 - evidence of the
unreliability of years-old memory.
27 FMSHRC 576

"condition" or a "problem," it is apparent from the record that Maple Creek had dedicated pumps
and personnel to removing the water from the area, and I conclude that the judge inadequately
weighed that evidence in making her unwarrantability determination.5 Compare Eagle Energy,
Inc., 23 FMSHRC 829, 836 (Aug. 2001) ("Despite the chronic water accumulation problems in
the escapeway, the operator made no attempt to abate accumulations in the escapeway.").

In addition to the foregoing, it is not apparent that the judge sufficiently considered
mitigating circumstances, as well as aggravating factors, that indicated Maple Creek was making
a good faith effort to minimize the water accumulation in the escapeway. See id. at 834-40. The
events that aggravated the water accumulation in the escapeway and preceded the citation and
order on August 9 were the collision of a scoop with one pump and the breakdown of a second
pump, which needed a new diaphragm. Tr. 407-14, 500. The nearest replacement pump was
some 15 miles away. Tr. 412. Thus, at the time the inspector observed the escapeway, no pumps
were running and water was seeping into the area. Tr. 499-500, 650. Maple Creek took
immediate steps to repair the brC?ken pump. Tr. 648-50.
In addition to the efforts of Maple Creek to address the extraordinary events in the
escapeway on August 9, uncontradicted testimony in the record also shows that Maple Creek
foremen were aware of the presence of a nearby, alternate escapeway as a means of avoiding the
water in the primary escapeway. Tr. 454, 506-07, 631, 735. While this mitigating factor does
not affect the violation itself, it weighs on the determinatiori of indifference and serious lack of
reasonable care and whether this violation involves ordinary negligence or aggravated
misconduct. See Florence Mining Co., 11FMSHRC747, 753-54 (May 1989).
In sum, I would remand this proceeding to the judge for further consideration of whether
the violation was due to Maple Creek's unwarrantable failure.
While I agree with the majority of my colleagues regarding the dismissal of section
110(c) charges against Alvy Walker and Greg Miller, I disagree with the affirmation of the
judge's determination of section llO(c) liability against section coordinator Steve Brown. For

5

The majority asserts that it is harmless error for the judge to have misconstrued the
preshift reports that, when properly read, indicate that the water in the entry was pumped down
during the period between the state citation and the citation at issue. However, the failure to
abate the state order and the truthfulness of the report to the state inspector are at the heart of the
lengthy MSHA investigation into what would otherwise have been a routine, low-risk-of-injury
violation. The preshift reports, as the only contemporaneous, official, written record, go to the
heart of the issues at hand here- and essentially refute them. The judge's error in misconstruing
them is not harmless, given her conclusion that "Maple Creek's actions to [fail to] abate" the
earlier state order constitute an unwarrantable failure to comply. 26 FMSHRC at 551. I believe
that a clear understanding of these reports would allow the judge to properly decide whether this
is a case of aggravated misconduct and callous disregard, or simply a case of two malfunctioning
pumps and scoop problems foiling a good-faith effort by Maple Creek to comply.
27 FMSHRC 577

reasons similar to my conclusion regarding the need to remand the judge's unwarrantable failure
detennination, I am compelled to conclude that the judge must reconsider her conclusion
regarding Brown's liability.
The judge's determination with regard to Brown was premised on her finding that, after
the state compliance order, he failed "to take expeditious, effective remedial action to protect the
safety of miners who traveled daily through the primary escapeway, as well [as] those miners
who would have to evacuate the mine in an emergency." 26 FMSHRC at 552. The judge
concluded that Brown' s conduct "amounted to an aggravated lack of care that was more than
ordinary negligence." Id.
As I have noted above, slip op. at 21, the judge ignored undisputed testimony regarding
Maple Creek's actions directly in response to the July 30 order. Brown was instrumental in
setting up the four pumps in the 4 West section that led to the apparent improvement in
conditions in the section up until August 9. Id. This response to the water accumulation problem
in the section stands in marked contrast to the inaction of officers or agents that has characterized
Commission decisions finding section llO(c) liability. Compare Sunny Ridge Mining Co., 19
FMSHRC 254, 274 (Feb. 1997) (company president was aware of violations but failed to take
any measure to correct them); Prabhu Deshetty, 16 FMSHRC 1046, 1051(May1994) (mine
foreman was aware of ongoing accumulation problem but failed to take measures to remedy the
problem). The events that led to the water accumulation on August 9 were not due to Brown's
inaction, let alone an aggravated lack of care. Rather, the immediate cause of the water
accumulation problem on August 9 was due to the breakdown of two of the four pumps, which
caused all pumping to cease. In light of these extenuating factual circumstances, I would ask the
judge to further consider whether Brown knowingly violated section 75.380(d)(l).

27 FMSHRC 578

Distribution
Marco M. Rajkovich, Jr., Esq.
Noelle M. Holladay. Esq.
Watt. Tarrant & Combs. LLP
250 West.Main Street. Suite 1600
Lexington. KY 40507-1746
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"~ Floor
Arlington. VA 22209
Judith Rivlin. Esq.
United Mine Workers of America
8315 Lee Highway
Fairfax. VA 22031
Administrative Law Judge Jacqueline R. Bulluck
Federal Mine Safety and Health Review Commission
601 New Jersey Avenue, Suite 9500
Washington. D. C. 20001

27 FMSHRC 579

ADMINISTRATIVE LAW JUDGE DEQSIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-35n/FAX 303-844-5268

August 11, 2005
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
AD:MINISTRATION (MSHA),
Petitioner

Docket No. WEST 2004-453
A.C. No. 42-01715-31669

v.
Crandall Canyon Mine
GENWAL RESOURCES, INC.,
Respondent

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2004-454
A .C. No. 42-01715-31882A

v.
GARTH J. NIELSON, employed by
GENWAL RESOURCES, JNC.,
Respondent

Crandall Canyon Mine

DECISION
Appearances:

Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department
of Labor, Denver, Colorado, and Ned Zamarripa, Conference &
Litigation Representative, Mine Safety and Health
Administration, Denver, Colorado for Petitioner;
Noelle M. Holladay, Esq., and Marco M. Rajkovich, Esq., Wyatt,
Tarrant & Combs, Lexington, Kentucky, for Respondents.

Before:

Judge Manning

These cases are before me on petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Genwal Resources, Inc. ("Genwal") and Garth J. Nielson, pursuant to sections 105 and
110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 ("Mine Act").
The petitions allege that the respondents violated 30 C.F.R. § 72.630(a), which governs the
control of dust created by drilling. An evidentiary hearing was held in Salt Lake City, Utah, and
the parties filed post-hearing briefs.

27 FMSHRC 580

I. BACKGROUND AND SUMMARY OF THE EVIDENCE
Genwal operates the Crandall Canyon Mine, an underground coal mine in Emery County,
Utah. On May 29, 2003, MSHA Inspector Randy E. Gunderson issued Order No. 7616128 under
section 104(d)(l) alleging a violation of 30 C.F.R. § 72.630(a). The body of the order provides
as follows:
On the 3Y2 east longwall recovery face (MMU 010), during the full
bolting process con.ducted by the crew, drilling of the rock roof is
being conducted without the means of controlling the dust
generated by the drilling. Dust shall be controlled by the use of
permissible dust collectors, or by water, or by ventilation. None of
these preventative measures were in effect. The mine operator
engaged in aggravated conduct by acknowledging a safety hazard
and not taking corrective action.
The inspector determined that an illness or injury was reasonably likely, that the violation was of
a significant and substantial nature, and that the violation was the result of the operator's
unwarrantable failure to comply with the standard. The cited standard provides that "[d]ust
resulting from drilling in rock shall be controlled by use of permissible dust collectors, or by
water, or water with a wetting agent, or by ventilation, or by any other method approved by the
Secretary that is as effective in controlling the dust." The Secretary proposes a penalty of
$6,600.00 against Genwal and a penalty of $600.00 against Mr. Nielson. 1
Inspector Gunderson testified that during his inspection on May 29, 2003, he parked his
vehicle about 500 feet from the face and walked up the headgate side onto the longwall. As he
walked along the face, he noticed that miners were drilling into the roof in order to install roof
bolts. (Tr. 16). The inspector walked past Joe Fielder, the longwall coordinator, as he inspected
the longwall. Gunderson could hear a drill operating as he walked between the shields and the
pan line. When he arrived at the first drill, he could see dust coming off the drill. (Tr. 19; Ex. G5). Gunderson believes that this drill was at or near shield 86. (Ex. G-4). Garth Nielson, the
mine superintendent, was sitting near the drill. The air movement was from the headgate to the
tailgate. (Tr. 21).
Inspector Gunderson determined that the drilling at shield 86 should cease because the
miners were "drilling dry" and he could hear at least one other drill being operated downwind
from the drill. Id. The inspector testified that the dust was airborne and that the only ventilation
in the area was face ventilation which was moving toward the miners at the second drill further
along the longwall.
1

On February 8, 2004, MSHA Inspector Donald Durrant issued Citation No. 7613354 at the
mine. A penalty of $6,300.00 was proposed by the Secretary in Docket No. WEST 2004-453. At
the hearing, the Secretary agreed to vacate this citation. (Tr. 8).
27 FMSHRC 581

Gunderson testified that he asked Nielson if he knew that he had to use water while
drilling and that Nielson replied, "I know." (Tr. 22). After the drill was shut down, Gunderson
and Nielson walked down the face to the second drill, which was about 100 feet away. The
inspector ordered that drill shut down. After that, Inspector Gunderson walked further down the
longwall toward the tailgate to where miners were getting ready to operate a third drill and he
ordered them not to drill. (Tr. 24, 116). Inspector Gunderson asked Section Foreman Mike
Allred, who was at the third drill, why water was not being used with the drill. Gunderson
testified testified that Allred replied that he wanted to stay dry. (Tr. 25).
Miners were drilling into the roof using stoper drills to install roof bolts. These drills are
relatively small and are supported by a pneumatic cylinder which provides thrust while drilling.
(Ex. G-5). A water hose can be attached to each stoper drill to suppress dust. Roof bolts and
matting are installed along the longwall in preparation of a longwall move in which the shields
and all the other longwall components are removed from the section. The longwall was about
680 feet long (Tr. 20). There have been about 19 longwall moves at this mine. (Tr. 82, 164).
Inspector Gunderson determined that the violation was a result of Genwal's
unwarrantable failure to comply with the standard because the violation was "obvious" and a
"hazard," and because management knew of "this problem" and were not "taking care of it." (Tr.
26, 42-43). Because the miners were "drilling dry," Inspector Gunderson believed that Genwal
was not controlling the dust generated by the drills. He concluded that the miners were drilling
into quartz-bearing rock because the dust produced was a white powder. It is Inspector
Gunderson's understanding that the roof was sandstone. He could see this white dust in the air,
on the pan line, and on the miners working with the drills.
The inspector determined that the violation was of a significant and substantial nature
("S&S") because, if the practice of drilling without controlling the dust were to continue, it is
reasonably likely that miners would develop silicosjs, which is a serious illness. (Tr. 35). He
believes that everyone along the longwall face was exposed to the hazard because they were
either around a drill or were in the airstream containing dust particles. (Tr. 36). Two miners
were operating the first drill and the other two drills were operated by three miners each. (Tr. 47).
The shift started at 7:00 a.m. and Inspector Gunderson observed the condition at 8:00 ~.m.
Although he is not certain, the inspector believes that drills were used on the previous shift
without controlling dust because a few roof bolts had already been installed along the longwall
face and there was quite a bit of dust that had settled along the pan line. (Tr. 37). Inspector
Gunderson terminated the order when the drills were shut down. The drills were connected to
the waterline along the longwall before drilling .resumed. (Tr. 46).
Danny Vetter, an MSHA special investigator, conducted an investigation into the
circumstances surrounding the citation that was issued. (Tr. 247). He determined that "there was
an obvious and blatant violation" of the standard at the time Inspector Gunderson entered the
longwall section and Garth Nielson was present. He stated that dust samples are not required to
be taken under the cited standard. Vetter believes that if dust is visible, then respirable silica dust
27 FMSHRC 582

is also present. (Tr. 253). He also stated that relying on face ventilation does not meet the
requirements of the standard and may, in fact, put more dust into suspension. (Tr. 255). As a
consequence, he recommended that a civil penalty be proposed against Nielson.
David Jensen, who was an assistant to the mine's safety director, was working at the third
drill on the day of the inspection. (Tr. 77). He testified that the drills were not connected to the
water line that morning. (Tr. 78). He said that the miners in the longwall face typically do not
use water when drilling. Id. He further testified that when he provides annual safety and health
training at the mine, he discusses the need to use water as a method of dust suppression on drills.
(Tr. 80-81). He also stated that he had discussed this issue with Garth Nielson in the past when
miners complained to him about the lack of dust suppression. (Tr. 81-82). Jensen testified that
he felt uncomfortable operating the drill without water on May 29 because, as a safety trainer, he
instructed miners to use water and he believed he would lose the respect of the miners by drilling
dry. (Tr. 83). He did not wear a respirator on May 29.
Jensen believes that the ventilation along the face of the longwall was insufficient to
direct dust away from miners. He could s.e e the dust and there were no ventilation curtains
present to direct air away from miners. (Tr. 84). Jensen stated he could see dust everywhere
around the first drill where Nielson was sitting. (Tr. 87). Jensen also testified that whenever a
longwaJI move was scheduled, miners would start complaining to him about the method of
drilling without dust control. (Tr. 89). Jensen overheard Nielson telling Inspector Gunderson
that he has tried to get the miners to hook up water lines to the drills but he could not get them to
use water. (Tr. 91-92). Jensen disagrees with this assessment because, from his perspective,
miners often complained to him about the lack of water when installing r<,>of bolts in preparation
for a longwall move. (Tr. 81, 89, 92).
Jensen testified that he had been on the longwall during several longwall moves. (Tr. 99).
He could only remember one occasion when water was used to control dust on the stoper drills.
Jensen admitted that he did not take any steps on the morning of May 29 to get water to the drills.
(Tr. 101-103). Jensen testified that several years earlier, he told Joe Fielder, the longwall
coordinator, that water lines should be connected to the stoper drills when roof bolting along the
longwall. (Tr. 103-05). According to Jensen, Fielder told Jensen that ..we're not going to do it
so just get out of here." (Tr. 103).
David Turner, a longwall mechanic, testified that he helped operate the second drill along
the face from the headgate. (Tr. 126). He was drilling dry. He said that usually four stoper drills
are used. He could see a drill operating on each side of him. (Tr. 128). Turner testified that he
could "most definitely" see dust in the area coming from the drills. Id. He does not think it
would be feasible to use ventilation to control the dust because an "enormous amount of
curtains" would be required to direct the contaminated air away from the miners working along
the face. (Tr. 130). Water was available along the face so it took about 30 to 45 minutes to
supply water to each drill after the withdrawal order was issued. Id. Some of the fittings

27 FMSHRC 583

necessary to connect water to the drills had to be located elsewhere on the section. (fr. 131 ,
139).
Turner could not recall ever being told to use water when operating the stoper drills, but it
was common knowledge that water was necessary to "handle" the dust. Id. Turner was wearing
a respirator because it was his normal practice to do so whenever he was working on a longwall
section. (Tr. 132). He does not recall anyone else wearing·a respirator that day. Turner has
participated in about seven longwall moves and, if he is asked to operate a drill, he tries to
operate the drill at the headgate end so that he can stay out of the dust generated by drilling. (Tr.
133-34). He has never been told that he had to drill without water. {Tr. 138).
Rodney Cox, a fireboss at the mine, testified that because the mine was shorthanded on
May 29, he worked on the longwall face that day. (Tr. 143). He operated the second drill and
Dave Turner assisted him. Cox said that he did not use water on the drill because he "chose not
to." (Tr. 146). It would not have been hard to hook up water to the drill. (Tr. 152). He knew
that some method of dust control was necessary when operating a drill in order to control the
silica. (Tr. 146). He did not wear a respirator that day. Cox testified that he had previously
operated a drill with water as well as dry. (Tr. 147). He is not aware of any methods to control
dust with stoper drills other than water. He does not believe that ventilation would protect
miners further down the air course. (Tr. 148-49).
Garth Nielson, the mine superintendent, testified that he does not have direct
responsibility for planning, organizing, or scheduling longwall moves. (Tr. 162). He also does
not schedule daily work assignments. The longwall coordinator and general mine foreman are
responsible for longwall moves.
Nielson testified that Genwal always complies with section 72.630(a) by using water or
ventilation. (Tr. 164). Ventilation is used if there is sufficient air in the longwall. The mine has
never been cited by MSHA for using ventilation on the longwall section to control dust from
stoper drills. (Tr. 164-65). The approved ventilation plan requires 45,000 cubic feet per minute
("cfm") on the intake of the longwall when coal is being mined. (Tr. 166, Ex. R-1 p. 21-22).
During a longwall move, the mine is required to have 20,000 cfm on the intake end. There is
nothing in the ventilation plan that addresses any special requirements when miners are drilling
into rock on the longwall face. (Tr. 166). Nielson understood that when bolts were being
installed on the longwall secti~n prior to a longwall move, Genwal was required to move enough
air through the longwall to stay in compliance with all dust standards. Mine records show that
prior to the start of the shift, the quantity of air entering the longwall was 53,504 cfm. (Tr. 169;
Ex. R-2).
Nielson is the superintendent for several mines. He traveled to the Crandall Canyon Mine
on May 29 because he knew that there was a longwall move scheduled. (Tr. 170). He arrived at
the mine at about 5:30 a.rn. and, after checking the books, traveled underground. He parked near
the tailgate entry of the longwall panel and proceeded to walk up the return air course on the
27 FMSHRC 584

tailgate side. He checked the roof for abutment pressures and, when he anived at the tailgate end
of the face, he looked into the gob to see if there was a good tight cave. (Tr. 180). Because the
cave was tight, ventilation along the face was excellent. He walked along the face toward the
headgate and checked to see if the roof was well meshed. When he reached the midpoint of the
longwall face he could see two people and a stoper drill. (Tr. 183). It was still the graveyard
shift at the time. The miners were installing matting to the roof with roof bolts. (Tr. 184). There
was no water supplied to the drill. There was a large amount of air moving through the area, but
Nielson did not take any air measurements. As he approached the miners drilling into the roof,
he could see dust coming from the drill from a distance of about 40 to 50 feet from the drill. (Tr.
185-86). He did not believe that there was enough dust present to be concerned about. Nielson
helped the miners until the end of their shift.
At the end of the graveyard shift, Nielson walked further along the longwall and sat down
to wait for the day shift crew. (Tr. 187). Mike Allred was the first to anive on the day shift. He
told Nielson that he was shorthanded so he would help run a drill. There was no discussion of
putting water on the drills. Nielson testified that he has never ordered anyone to drill without
water and if a miner wanted to drill with water he could have done so. (Tr. 190). He stated that
no miner has ever complained that he could not get water to his drill. Dave Jensen was on the
crew that day, but Nielson did not recall seeing him and he does not recall discussing anything
with him. (Tr. 191).
Insepctor Gunderson arrived on the section early that morning and walked past Nielson
and walked toward the tailgate. When the inspector returned he said to Nielson, "Garth, we got a
problem." (Tr. 192). Inspector Gunderson told Nielson that because Genwal was not running
water on the stoper dril1s he was going to issue a (d)(l) order. In response, Nielson said, "I see
then we have a problem." (Tr. 193). Nielson testified that, by making that statement, he meant
that the withdrawal order was a problem, not that he agreed that the stoper drills created a
problem. Nielson told the Gunderson that he would shut down the drills, but the inspector told
him that he had already done so.
Nielson does not believe that the mine was in violation of section 72.630(a) on May 29.
The amount of silica dust being emitted was not enough to be out of compliance with the
"milligram standard that we have to meet." (Tr. 195). MSHA has never taken dust samples
when miners were drilling along the longwall. Nielson testified that a miner complained to
MSHA about excessive silica dust along the longwall in January 2005 when the shearer was
cutting more than two feet of rock for the length of the longwall. MSHA placed five dust pumps
on longwall employees to test for respirable dust. (Tr. 197). Nielson testified that the test results
revealed that the miners were not overexposed to silica dust. Nielson admitted that in the
January 2005 situation, the miners wearing the pumps were about 2,000 feet downwind from the
shearer cutting into the rock. (Tr. 211). Nielson further testified that any employee can request
that he be fitted for a respirator to wear when working around drills. (Tr. 199).

27 FMSHRC 585

Nielson testified that Genwal makes sure that water is available for the stoper drills along
the longwall. (Tr. 199). He stated that connections and fittings to connect water to the drills
were readily available. Id. He further stated that water is used on the drills about half of the time
during longwall moves. (Tr. 203). Miners tend to use water when the roof is damp and some
miners prefer to use water not only to control the dust but because it is faster to drill with water.
Face ventilation is used to control the dust at all other times.
Robert Oviatt, shift foreman, testified that the face ventilation on May 29 was twice the
volume required by the ventilation plan. (Tr. 232). He believes that this ventilation was .
controlling the dust. He admitted, however, that any miner downwind from one of the stoper
drills would have been exposed to dust. (Tr. 237-38). He did not tell any miners that they could
not use water with the stoper drills. (Tr. 233).

II. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. Violation of Section 72.630(a)
I find that the Secretary established a violation of the standard. Section 72.630 was
drafted to address a specific problem: dust that enters the mine environment when drilling into
rock in underground mines. This requirement is separate and distinct from any standards
regulating the amount of respirable dust that is permitted in underground mines. The standard is
violated if an operator is not using one of the specified methods to control dust resulting from
drilling regardless of the actual level of exposure. Nothing in section 72.630 requires that the
Secretary·must establish there was an actual overexposure to drill dust at the time the citation is
issued.2 Section 72.630 is not vague or confusing on this issue. It clearly provides that any dust
resulting from miners drilling into rock must be controlled. There is no dispute that miners were
using stoper drills to install roof bolts in the longwall section, that these miners were drilling into
rock to perform this task, and that visible dust wa~ being created. It can be inferred that lnvisible
respirable silica dust was also being produced. As a consequence, the issue is whether the dust
being produced as a result of the drilling was being controlled in a manner required by the
standard.
One method to control drill dust is by using water, as set forth in section 72.630(c).
There is no dispute that water was not being used. Respondents argue that the mine was using
ventilation to control the dust. Section 72.630(c) provides, under the heading "Ventilation
Control," that to "adequately control dust from drilling rock, the air current shall be so directed
that the dust is readily dispersed and carried away from the drill operator and any other miners in
the area." Respondents contend that the ventilation provided at the longwall face met the
requirements of subsection (c). Respondents point to the fact that the mine was providing at least
2

Indeed, the preamble to the standard provides that the "final rule is a work practice
standard that does not require sampling." 59 Fed. Reg. 8317, 8323 (Feb. 18, 1994).
27 FMSHRC 586

53,500 cfm of air to the area while the ventilation plan only requires 20,000 cfm. Genwal also
relies on the mine's history of compliance with MSHA standards with respect to respirable silica
dust. Genwal argues that because the citation is not supported by any sampling for respirable
silica dust, I should assume that the mine was in compliance with all respirable dust standards.
Inspector Gunderson took a rather practical approach to his interpretation of the standard.
He stated that he probably would not have issued the order if Genwal had only one stoper drill
operating so long as there were not any miners working downwind from the drill. In this
instance, however, at least three drills were going to be operating during the day shift and these
drills were operating about 100 feet apart. Gunderson believed that miners working downwind
from the first drill would be exposed to the dust.
I agree with Inspector Gunderson's assessment of the conditions at the mine. The drill
dust was not "dispersed and carried away from the ... miners in the area" by the longwall
ventilation. There was no dispute that drill dust was being produced because it was readily
visible in the air and it had settled on longwall components. This dust that had not settled was
blowing directly toward the miners at the downwind drills. The Secretary is not required to
establish that Genwal violated threshold limit values for silica. I do not agree with Genwal' s
argument that, if it is complying with its approved ventilation plan, it is in compliance with the
requirements of section 72.630(c). The requirements of section 72.630 are separate and distinct
from the ventilation plan requirements and an operator can violate this health standard without
violating the ventilation plan.
Genwal argues that the language of section 72.630 clearly provides that ventilation may
be used to control dust. Genwal contends that because the language of the standard is clear, I
should "give effect to the unambiguously expressed intent of the regulation" that ventilation is a
permissible control method. (G. Br. 4, citing Chevron U.S.A. Inc. v. Natural Resources Defense
Councit, Inc., 476 U.S. 837, 843 (1984). If ventilation is used to control dust, however, it must
be effective. Consolidation Coal Co., 23 FMSHRC 392, 397-98 (April 2001). I find that the
face ventilation along the longwall did not effectively control the drill dust as required by the
standard.
Genwal also argues that, even if I find that the language of the standard is ambiguous, the
Secretary's interpretation of the standard is not entitled to deference because it is contrary to the
plain meaning of the words. It maintains that Genwal was not provid~d with fair notice of the
requirements of section 72.630. The Commission has held that the language of section 72.360 is
clear and unambiguous. Id. at 397. If ventilation is used to control drill dust, it must carry the
dust away from drill operators and other miners in the area. The evidence clearly establishes that
the longwall ventilation used by Genwal did not carry the dust away from miners in the area but
rather blew the dust toward them. This "carry away" requirement is clearly set forth in the
standard. It is Genwal, not the Secretary, who is interpreting the standard beyond its plain
meaning. The Secretary provided fair notice of the requirements of this standard as applied to
the facts of this case. The Secretary clearly set forth her intended requirement that, if ventilation
27 FMSHRC 587

is used to disperse drill dust, the air current must carry the dust away from miners working in the
area. 3 Respirable dust samples are not required to establish a violation. Accord Jim Walter
Resources, Inc., 17 FMSHRC 1423, 1444-45 (Aug. 1995) (AU); affd Jim Walter Resources,
Inc. v. Sec'y of Labor, 103 F. 3d 1020, 1024 (D.C. Cir. 1997). I find that the ventilation used by
Genwal on the longwall face did not effectively carry the dust away.
B. Si2Jlificant and Substantial
I also find that the violation was S&S. A violation is classified as 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." National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC l, 3-4 (Jan1,1ary
1984), the Commission set out a four-part test for analyzing S&S issues. Evaluation of the
criteria is made assuming "continued normal mining operations." U.S. Steel Mining Co., 6
FMSHRC 1573, 1574 (July 1984). The question of whether a particular violation is S&S must
be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498
(April 1988). As applied to a health standard, such as section 72.630, the Secretary must
establish: (1) the underlying violation of the health standard; (2) a discrete health hazard, a
measure of danger to health, contributed to by the violation; (3) a reasonable likelihood that the
health hazard contributed to will result in an illness; and (4) a reasonable likelihood that the
illness in question will be of a reasonably serious nature. Consolidation Coal Co., 8 FMSHRC
890, 897 (June 1986). The Secretary is not required to show that it is more probable than not that
an illness will result from the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June
1996).
I find that there was a violation of the health standard and that a discrete safety hazard
was contributed to. I also find that there is a reasonable likelihood that the health hazard
contributed to will result in an illness. It is important to recognize that the violation need only
"contribute to" a health hazard. The violation is not required to create a health hazard to be
considered S&S.
I rely on the phrase "hazard contributed to" in this element of the Mathies test in reaching
this conclusion. 6 FMSHRC at 3. A single exposure to respirable silica dust may not result in an
illness, but an exposure to respirable silica dust is a hazard that contributes to the development of
an illness. See Consolidation Coal Co., 8 FMSHRC at 894-99. When promulgating the
standard, the Secretary noted that during drilling "there is the potential for extremely high
exposures in short periods of time to both miners doing the .. . drilling and to other miners in the
immediate area." (S. Br. 4 quoting 59 Fed. Reg. 8318 (Feb. 18, 1994)). The inhalation of freshly
fractured silica particles from rock drilling may contribute to the development of acute silicosis.
3

In addition, the preamble to the standard provides that "[g]eneral ventilation is not usually
effective in underground coal mines for drill dust control, unless it can rapidly disperse and carry
away the drill dust as well as direct the dust away from workers in the area." 59 Fed. Reg. at 8324.
27 FMSHRC 588

(S. Br. 3; Tr. 38-41; Ex. G-6 p. 8-9; 59 Fed. Reg. at 8319). "Silicosis has been recognized ... as
a disease associated with coal miners, and the inhalation of silica-bearing dust has been causally
linked to the disease." U.S. Steel Mining Co., Inc. 8 FMSHRC 1274, 1279 (Sept. 1989). The
Secretary was unable to establish whether any miner was overexposed to silica dust because
Inspector Gunderson ordered drilling to stop immediately so he did not take respirable dust
samples. When taking into consideration continued normal mining operations, I believe that it is
reasonable to presume under the facts of this case that miners would have been exposed to silica
dust for at least a short period of time. I find that the Secretary was not required to sample for
dust in order to establish the S&S nature of the violation in this case. Contra Jim Walter
Resources, 17 FMSHRC at 1446-48 (ALJ). Any illness contributed to by the violation would be
of a reasonably serious nature. "The fibrosis associated with silica-bearing dust is irreversible
·
and may continue to develop after the exposure has ended." Id. at 1281.

C. Unwarrantable Failure
I find that the Secretary established that the violation was the result of Genwal' s
unwarrantable failure to comply with the safety standard. Unwarrantable failure is defined as
aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9
FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference," or the "serious lack of reasonable
care." Id. 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 193-94. I find that
Genwal' s conduct does not reach that level of negligence. A number of factors are relevant in
determining whether a violation is the result of an operator's unwarrantable failure, such as the
extensiveness of the violation, the length of time that the violative condition has existed, the
operator's efforts to eliminate the violative condition, whether an operator has been placed on
notice that greater efforts are necessary for compliance, the operator's know ledge of the existence
of the violation, and whether the violation is obvious or poses a high degree of danger. Mullins
& Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21FMSHRC997,
1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001).
The Secretary argues that Genwal had knowledge of the violation because it krlew that it
was not using dust collectors or water to control the drill dust and it knew that ventilation would
not carry the dust away from downwind miners. She contends that Nielson knew that stopers
were being used and that miners downwind from other .stopers would be breathing dust generated
by the stopers. The Secretary states that Nielson acknowledged that he knew that water should
have been used to COJ?,trol dust when Inspector Gunderson issued the order of withdrawal. In
addition, Nielson was present at the time drilling started and could see and hear the drills
operating. Foremen and other mine managers are held to a high degree of care regarding safety
matters.
Genwal argues that it reasonably believed that it was complying with the standard by
providing more than sufficient ventilation along the longwall. It was providing more than twice
the volume of air required by the ventilation plan during longwall moves. In addition, Genwal
27 FMSHRC 589

maintains that because it has moved the longwall equipment about 19 times over an 8 year period
without being cited by MSHA, an aggravated conduct finding is not appropriate. It contends that
any of the miners could have used water to control dust as the company has no policy against
using water on stoper drills and the equipment to do so was present on the section. Finally, it
contends that the Secretary misconstrued Nielson's statement to Inspector Gunderson that "I see
then we have a problem" when he was told about the unwarrantable failure order. Genwal argues
that Nielson simply meant that if an order was being issued, then there was a problem, not that he
admitted that he knew that was a violation.
Jensen, who worked for the safety department, and Oviatt, who was a shift foreman,
testified that they knew that any miners in the area who were downwind from a stoper would be
exposed to drill dust. (Tr. 83-87, 236-38). Nielson observed driil dust being produced when he
walked in the longwall on the graveyard shift. In addition, the testimony of miners demonstrates
that it was "common knowledge" that the only way to control dust on the stoper drills when used
on the longwall was to drill with water. (Tr. 131). The drills were close enough to each other
that they could be seen and heard by the miners. Nielson was at a location where he could have
seen and heard the first drill operating. Turner, a mechanic, and Cox, a fireboss, testified that
miners on the section were well aware of the hazard created by the drill dust and knew that face
ventilation would not control the dust. (Tr. 128-30; 146-49). Jensen testified that miners
complained to him about the lack of water on the drills. (Tr. 81). Although these miners may
not have been well versed on the requirements of section 72.630, they knew that the drill dust
was not being dispersed and carried away. This violation should have been obvious to mine
management.
It appears that the violation had only existed for a short time and Genwal had never been
placed on notice by MSHA that greater efforts were necessary to comply with the standard.
Nevertheless, miners and an employee in the safety department had complained about the lack of
dust control for the drills. Mine management was put on notice by its own employees that
greater efforts were necessary to control dust when installing roof bolts prior to a longwall move.
I find that the violation demonstrates a serious lack of reasonable care. Genwal management did
not recklessly disregard the standard and their conduct does not rise to the level of intentional
misconduct, but I find that the violation was caused by Genwal's aggravated conduct constituting
more than ordinary negligence.
D. Penalty A&ainst Garth Nielson

Section l lO(c) of the Mine Act provides that, whenever a corporate operator violates a
mandatory health or safety standard, any agent of such corporate operator who "knowingly
authorized, ordered, or carried out such violation" shall be subject to a civil penalty. 30 U.S.C. §
820(c). The Com.mission held that "knowingly" means "knowing or having reason to know."
Kenny Richardson, 3 FMSHRC 8, 16 (Jan 1981); ajfd 689 F.2d 623 (6th Cir. 1982). "A person
has reason to know when he has such information as would lead a person exercising reasonable
care to acquire knowledge of the fact in question or to infer its existence." Richardson, 3
27 FMSHRC 590

FMSHRC at 16. "If a person in a position to protect employee safety and health fails to act on
the basis of information that gives ~im 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." Id. "In order to establish section llO(c) liability, the Secretary must prove only that
the individual knowingly acted not that [he] knowingly violated the law." BethEnergy Mines ,
Inc., 14 FMSHRC 1232, 1245 (August 1992).
Genwal is a corporate operator and Mr. Nielson was an agent of the corporation. In
addition, as discussed above, the corporate operator violated section 72.630. I find that Niel~on
knowingly authorized the violation of section 72.630. He knew that drill dust was or would
shortly be blowing through the longwall where miners were working. He had walked through
drill dust being created by a stoper drill on the graveyard shift. He testified that the dust was
readily apparent and that he could see dust for 40 to 50 feet from the drill. From where he was
positioned when Inspector Gunderson arrived on the day shift, he should have been able to see
and hear the first drilJ operating. A person exercising reasonable care would have realized that
the drill dust was not being controlled by the face ventiJation because the dust was not carried
away from miners in the area. Although he apparently believed that the 53,500 cfm of air
provided to the longwall section was sufficient to dilute the dust to meet MSHA' s threshold limit
value for respirable dust, he had reason to know that the dust was not being carried away from
miners as required by the standard. Hazardous short term exposures to silica-bearing dust were
highly likely. I credit the testimony of Jensen that miners had complained to him about dust
control from stoper drills on the longwall and that he discussed this issue with management while
Nielson was present. (Tr. 81-82). Nielson also attended a training class when Jensen instructed
miners to use water on stoper drills. (Tr. 80-81). Thus, Nielson knew or had reason to know that
face ventilation was not sufficient to carry drill dust away from miners and that using water was
th~ most practical method to control dust. In reaching this conclusion, I did not give weight to
the Secretary's evidence concerning the conversation between Nielson and Inspector Gunderson
at the time the order was issued. I believe that when Nielson acknowledged that there was a
problem, he was most likely confirming that, if Inspector Gunderson was issuing an order of
withdrawal, then there was a problem that must be corrected.
The Secretary cites U.S. v. Gibson, 409 F.3d 325, 336 (6th Cir. 2005), for the proposition
that "mine superintendents or foremen can be said to have knowingly authorized, ordered, or
carried out violations of the [Mine Act] when they enter mines and observe violations but do
nothing to stop or correct them." (S. Br. 17). In that criminal case, a mine superintendent and
foreman were charged with "authorizing, ordering, and carrying out the violation of the mining
regulation that requires the mine operator to adopt and follow a ventilation plan." Id.
Apparently, ventilation curtains were down at the face and throughout the mine so that there was
insufficient ventilation at the face. Id. at 335. Such a violation would be obvious to anyone with
even a casual understanding of underground coal mining. I believe that the language quoted by
the Secretary is a little too broad to fit all circumstances. I am not basing my conclusion on the
mere fact that Nielson was at the mine and observed the conditions. I find that the Secretary
established that Nielson failed to act on the basis of specific relevant facts within his knowledge
27 FMSHRC 591

that should have given him reason to know that the mine was in violation of section 72.630.
Nielson's conduct demonstrated aggravated conduct constituting more than ordinary negligence"
on the part of a mine superintendent. BethEnergy Mines, Inc., 14 FMSHRC at 1245.

Ill. APPROPRIATE CIVIL PENALTIES
Section 1 lO(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. The record shows that the Crandall Canyon Mine had a history of
about 205 paid violations in the two years prior to May 29, 2003. (Ex. G-1). The parties
stipulated that Genwal is a large mine operator. The order was abated in good faith. The
violation was serious and Genwal was negligent. The penalty assessed in this decision will not
have an adverse effect on Genwal's ability to continue in business. Based on the penalty criteria,
I find that a penalty of $6,000.00 is appropriate for this violation.
The Secretary did not present evidence with respect to the penalty criteria for Mr.
Nielson. See Sunny Ridge Mining Co. , 19 FMSHRC 254, 272 (Feb. 1997). There is no evidence
that Mr. Nielson has a history of previous violations of the Mine Act. There is no evidence
concerning his income and family obligations. The parties stipulated that the proposed penalty
will not affect his "ability to continue in business." (Ex. J-1 I)[ G). The violation was serious,
Nielson's negligence was high, and he was the mine superintendent. He rapidly abated the
violation in good faith. Based on the penalty criteria, I find that a perialty of $200.00 is
appropriate and that Nielson has the ability fo pay the penalty.
IV. ORDER
Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
WEST 2004-453 (Genwal)
72.630(a)
75.380(f)(3)(iii)

7616128
7613354

$6,000.00
Vacated

WEST 2004-454 (Garth Nielson)
7616128

72.630(a)

$200.00

For the reasons set forth above, Order No. 7616128 is AFFIRMED_as written and
Citation No. 7613354 is VACATED. Genwal Resources, Inc., is ORDERED TO PAY the
Secretary of Labor the sum of $6,000.00 within 30 days of the date of this decision.

27 FMSHRC 592

For the reasons set forth above, Garth Nielson violated section 110(c) of the Mine Act
and he is ORDERED TO PAY the Secretary of Labor the sum of $200.00 within 30 days of the
date of this decision.

Richard W. Manning
Administrative Law Judge

27 FMSHRC 593

Distribution:

Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Certified Mail)
Noelle Holladay, Esq.,Wyatt Tarrant & Combs, 250 West Main St., Suite 1600, Lexington, KY
40507 (Certified Mail) ·

RWM

27 FMSHRC 594

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington DC, 20001-2021
Telephone: (202) 434-9958
Fax: (202) 434-9949

August 15, 2005
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
l\.1INE SAFETY AND HEALTH
ADMlNISTRATION (MSHA),
·Petitioner

Docket No. WEST 2005-51-M
A. C. No. 24-02196-39845

v.

JC Crusher
JAMES CARNEY CONSTRUCTION,
Respondent

ORDER DENYING REQUEST TO REOPEN
ORDER TO PAY
This case is before me pursuant to an order of the Commission dated April 18, 2005,
remanding this matter for further consideration and determination as to whether the operator,
James Carney Construction("Carney") is entitled to relief under Rule 60(b) of the Federal
Rules of Civil Procedure.' In particular, Rule 60(b)(l) provides relief from a final judgment in
cases where there has been a "mistake, inadvertence, surprise, or excusable neglect." Fed. R.
Civ. P. 60(b)(l).
This matter arose because Carney failed to answer the Secretary of Labor' s
("Secretary") petition for assessment of penalty, and then failed to answer my subsequent show
cause order for the failure answer the Secretary's penalty petition. Carney claims he never
received the February 2, 2005 show cause order, stating he was out of town on that date. The
Secretary indicates that she does not oppose the request to reopen.
The Commission has stated that default is a harsh remedy, and if the defaulting party
makes a showing of adequate or good cause for failing to timely respond, the case may be
reopened. Coal Prep. Services, Inc., 17 FMSHRC 1529, 1530 (Sept.1995). In addition, the
Commission has held pleadings drafted by pro se litigants to a less stringent standard than that
applied to documents drafted by attorneys. Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273
(Aug. I992)(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
Despite Carney's claim of having never received the show cause order, his signature is
on the receipt for the show cause order. From Carney's letter, it appears he disagreed with the ·
imposition of the fine, felt that he did not have to pay it, and, thus, ignored court documents
1

While the Commission is not obligated to adhere to the Federal Rules of Civil
Procedure, the Commission has found guidance and has applied "so far as practicable"
Rule 60(b). 29 C.F.R. § 2700. l (b).
27 FMSHRC 595

sent to him. The Commission makes great efforts to afford due process to all parties even when
pleadings are not crafted as artfully or clearly as they could or should be. However, a party's
blatant disregard for Commission procedure does not warrant Rule 60(b) relief.
Accordingly, this case is dismissed and the Respondent is ORDERED to pay the
proposed penalty assessment of $475.00.

Robert J. Lesnick
Chief Administrative Law Judge
Distribution: (Certified Mail)
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Boulevard, 22nd Floor, Arlington, VA 22209-2296
James Camey, Owner, James Camey Construction, P.O. Box 928, Glasgow, MT 59230

/fb

27 FMSHRC 596

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington DC, 20001-2021
Telephone: (202) 434-9958
Fax:(202)434-9949

August 17, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADJ\.1INISTRATION (MSHA),
·Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 2004-311-M
A. C. No. 48-01497-06604 A
General Chemical Mill

DEWAYNE HERREN,
Respondent.

ORDER DENYING REQUEST TO REOPEN
ORDER TO PAY
This case is before me pursuant to an order of the Commission dated October 6, 2004,
remanding this matter for further consideration and determination as to whether the miner,
DeWayne Herren, is entitled to relief under Rule 60(b) of the Federal Rules of Civil Procedure.'
In particular, Rule 60(b)(l) provides relief from a final judgment in cases where there has been a
"mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(l).
This matter arose because Herren failed to notify the Secretary of Labor ("Secretary") that
he wished to contest the proposed penalty assessed to him for an alleged violation of Section
110(c) of the Mine Act within 30 days of receipt of the proposed penalty assessment. In his
request for relief, Herren claims he did not defend against the proposed penalty because of
inadvertence or mistake. He contends he was informed by an MSHA investigator that he would
need to be interviewed prior to any hearing taking place. However, Herren did not give an
interview, believing "the whole thing would then go away." Resp. Affidavit at 2. The Secretary
filed a response to Herren's request to reopen, arguing that Herren seems to have deliberately
avoided an interview with MSHA, which, if true, undermines Rule 60(b). Sec. Mot. at 2. The
Secretary also requested "that the Commission remand the case to an administrative law judge
with instructions to provide both parties with an opportunity to present relevant evidence and
legal arguments." Sec. Mot. at 2-3.
Upon review of the record and the Secretary's request, on March 24, 2005, I issued an
order to the Secretary to submit a statement indicating the type of additional information she was
seeking from Herren and the type information she intended to submit. Accordingly, the Secretary
filed a response, requesting that Herren' s request be denied, claiming MSHA employees made
'While the Commission is not obligated to adhere to the Federal Rules of Civil
Procedure, the Commission has found guidance and has applied "so far as practicable" Rule
60(b). 29 C.F.R. § 2700.l(b).
27 FMSHRC 597

several attempts to contact Herren, either by telephone, in person, or by letter, to no avail. Sec.
Reply Apr. 18 Brief at 3-4. Moreover, in a sworn affidavit, the investigator claims he never told
Herren that a civil penalty hearing could be avoided by Herren' s refusal to be interviewed by an
MSHA official. Thomas Marvke Affidavit at 2. The Secretary argues that Herren's deliberate
refusal to respond to the proposed penalty assessment is not grounds for Rule 60(b) relief. Sec.
Reply Apr. 18 Brief at 2-3.

In response, Herren, through counsel, contends he "did not understand the consequences
of his actions, but rather this was his way of defending himself when he knew that he was not at
fault in the subject accident." Resp. Apr. 29 Brief at 2. Herren argues that "defaults are not
favored," and that "when ... the defending party.for whatever reason, and in particular through
inadvertence or mistake, fails to defend himself and yet maintains that he has a good defense to
the allegations, then justice requires that the defendant be allowed to present his defense." Id.
(emphasis added).
Based upon the arguments presented, I deny Herren's request to reopen the penalty
assessment. While Herren accurately argues that defaults are not favored, he is wholly inaccurate
in stating that if ''for whatever reason" he "fails to defend himself and yet maintains that he has a
good defense ... then justice requires that [heJ be allowed to present his defense." Justice does
not require an adjudicative body to ignore or excuse a litigant's conscious decision to circumvent
the judicial process.
Herren admits avoiding MSHA officials for the purpose of making his case "go away." I
do not believe the MSHA investigator suggested to Herren in any way that dodging the interview
would be a strategy for averting payment or a hearing. Further, I am not convinced that Herren
did not understand the consequences of his actions. But even if he did not, a party's blatant
disregard for Commission procedure does not warrant Rule 60(b) relief. Herren was provided an
opportunity to question the evidence presented against him, to present his own defense, and to
have the matter heard before an impartial adjudicator. Mr. Herren chose at his peril to forego this
process.
For the foregoing reasons, Herren's request to reopen the penalty assessment is DENIED.
Herren is ORDERED TO PAY the proposed penalty assessment.

Chief Administrative Law Judge

27 FMSHRC 598

Distribution: (Certified Mail)
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Boulevard, 22nd Floor, Arlington, VA 22209-2296
Frank D. Neville, Esq., Williams, Porter, Day & Neville, P.C., 159 North Wolcott, Suite 400,
P.O. Box 10700, Casper, WY 82602

/mvc

27 FMSHRC 599

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

August 19, 2005
SECRETARY OF LABOR,
.MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2004-330-M
A. C. No. 04-01299-24394
Docket No. WEST 2004-472-M
A. C. No. 04-01299-32142

V.

ORIGINAL SIXTEEN TO ONE :MINE, INC.
Respondent

Sixteen to One Mine

DECISION
Appearances:

Before:

Isabella M. Del Santo, Esq., Office of the Solicitor, U.S. Department of
Labor, San Francisco, California, on behalf of the Petitioner;
Michael M. Miller, President, Original Sixteen to One Mine, Inc. , Alleghany,
California, pn behalf of the Respondent.
Judge Melick

These cases are before me upon petitions for civil penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S .C. § 801 et
seq. (1994) the "Act," charging Original Sixteen to One Mine, Inc. (Sixteen to One) with violations
of mandatory standards and proposing civil penalties for the violations. The general issue before me
is whether Sixteen to One violated the cited standards and, if so, what is the appropriate civil penalty
to be assessed in accordance with Section l lO(i) of the Act. Additional specific issues are addressed
as noted.
Docket No. 2004-472-M
Citation No. 6353514
Citation No. 6353514, issued pursuant to Section 104(d)(l) of the Act, alleges a "significant and
substantial" violation of the mandatory standard at 30 C.F.R. § 57.4560(a) and charges as follows: 1

1

Section 104(d)(l) of the Act 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
27 FMSHRC 600

The mines portal timber-set entrance at the 800' foot level did not have a fire suppression
system capable of controlling fire in the early stages. Two holes of the four sprinkler
heads have been plugged off, the drain plug on the end was missing, and the valve to the
system was turned off. The portal consists dry timber sets and is considered main fresh
air intake. Conditions near the mine entrance contribute to discrete hazards of fire
conditions in that diesel fuel was stored and a combustible building was set up within the
100' limitations, creating fire and smoke hazards. This condition ·has.been cited twice in
the last three years along with several verbal warnings to the principal officer in charge.
The principal officer was fuJly aware of the standard and the warnings which engages him
in aggravated conduct constituting more than ordinary negligence. This violation is an
unwarrantable failure to comply with a mandatory standard.
The cited standard provides that "[f]or at least 200 feet inside the mine portal or collar timber
used for ground support in intake openings and in exhaust openings that are designated as
escapeways shall be(a) Provided with a fire suppression system, other than fire extinguishers and water hoses,
capable of controlling a fire in its early stages; or
(b) Covered with shotcrete, gunite, or other material with equivalent fire protection characteristics;
or
(c) Coated with fire-retardant paint or other material to reduce its flame spread rating to 25 or less
and maintained in that condition."
The 800 Portal is lined with timber on the ceiling and sides and has .a fire suppression
sprinkler system running along the roof of the portal. The sprinkler system is designed to have four
sprinkler heads that are activated whe~ the ambient air reaches a certain temperature. According to
the credible testimony of Inspector James Weisbeck of the Department of Labor's Mine Safety and
Health Administration (MSHA), during his inspection of the Sixteen to One Mine on March 10,
2004, he found that the mine's portal timber-set entrance at the 800 foot level (the 800 Portal) did
not have a fire suppression system capable of controlling fire in its early stages. His testimony is

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 s~ety standards, he shall include such finding in any citation given to the operator
under this Act. If, during the same inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation, an authorized representative of the
Secretary finds another violation of any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure of such operator to so comply, he
shall forthwith issue an order requiring the operator to cause all persons in the area affected
by such violation, except those persons referred to in subsection (c) to be withdrawn from,
and to be prohibited from entering, such area until an authorized representative of the
Secretary determines that such violation has been abated.

27 FMSHRC 601

undisputed that two holes of the four sprinkler heads had been plugged off thereby preventing their
use; that the drain plug at the end of the system was missing thereby denying pressure to the system
and thereby permitting all of the water in the system to drain out; and that the valve to the system
was turned off thereby preventing any water from entering the system (See photographic Exhibits
P-20, P-22 and P-19, respectively).
At hearing, Respondent's President, Michael Miller, appeared to suggest that, while the
sprinkler system was adffiittedly not functioning, there was nevertheless a vinyl pipe running through
the cited area and that heat from a fire would melt the vinyl causing it to burst and dump its water
on nearby flames. Even assuming, arguendo, that Mr. Miller is an expert in fire suppression
systems, his bald assertion that a melted vinyl pipe would provide adequate fire protection, is without
factual support. Without such factual support, I can give his opinion but little weight. It is also
patently obvious that if the vinyl pipe would melt and burst near the entrance to the mine portal then
all the water would drain out at that point leaving no water to quench any flames further inby. In any
event, the undisputed evidence shows that the main valve depicted in the photographic evidence
(Exhibit P-19) was closed, thereby depriving even the vinyl pipe of water. Accordingly, even the
purported alternative fire suppression system, based upon the melting of vinyl pipe, would have
been inoperable. Under the circumstances, I find that Respondent failed to comply with the option
provided in the cited standard to provide a fire suppression system.
The cited standard also gives a mine operator the option of coating mine portal timbers with
fire-retardant paint, but the timbers in the 800 Portal were only partially coated with fire-retardant
paint. Respondent had been cited on at least three prior occasions (August 1999, May 2001, and
March 2003) because the fire sprinkler heads were taken off during the winter "freeze and thaw"
season. It is undisputed that each time these prior citations were issued, Respondent was informed
that he could comply with this standard if he painted the portal timbers with fire-retardant paint. In
fact, one year prior to the subject citation, Weisbeck issued a citation at the 800 Portal for a violation
of the same standard and terminated it when Respondent fixed the sprinkler system. It is undisputed
that at the time the prior citation was issued, Respondent started painting the timbers in the 800
Portal but when half the timbers were painted, Respondent ran out of paint and did not complete the
job.
Finally, it may reasonably be inferred from the credible record, including the photographic
evidence, (Exhibits P-20 through P-22), that the operator also failed to comply with the third option
provided in the cited standard i.e. that it covered the area with shotcrete, gunite or other material with
equivalent fire protection characteristics.
The violation was also "significant and substantial" and of high gravity. 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:

27 FMSHRC 602

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 ~afety standard, (2) a discrete safety hazard - that is, a
measure of danger to safety- contributed to by the violation, (3) a reasonable
likelihood that ·the hazard contributed to will result in an injury, and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature.
The 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).
The gravity was also greatly heightened by the inadequacy of the fire warning system. It is
undisputed that the stench warning system was not functioning and that the mine telephone system
was not always capable of providing communication to the underground miners. According to the
undisputed testimony of Inspector Weis beck, the timber-sets in the cited area were also treated with
creosote and would cause any fire to be even more gassy. In addition, Weisbeck observed that many
of the timbers remained without fire-retardant paint. His conclusions that the air was intaking at the
time he issued the citation and that such smokey conditions could cause serious injuries to the miners
underground were also reasonable, supported by his credible testimony, and sufficient to find that
the violation was "significant and substantial" and of high gravity.
I also find the violation was a result of high operator negligence and "unwarrantable failure".
In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the Commission determined 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 considered other factors in determining whether a violation is
unwarrantable, including the extent of the violative condition, the length of time it has existed,
whether the violation is obvious or poses a high degree of danger, whether the operator has been
placed on notice that greater efforts are necessary for compliance and the operator's effort in abating
the violative condition. Lexicon, Inc., 24 FMSHRC 1014, 1024 (November 2002). Moreover,
27 FMSHRC 603

evidence of a prior history of violations may be an aggravating factor for purpose of determining
whether a violation is the result of an unwarrantable failure because prior citations place operators
on notice that greater compliance is required.

In this regard, the operator's agent, Ian Haley, acknowledged to Inspector Weisbeck that he
was aware that the endcap for the sprinkler system had been missing and he opined that the fire
suppression system was not functioning because of this defect, i.e. because the water had drained out
of the open pipe. 2 Since the operator's agent thereby admittedly had actual knowledge of the
violative condition and took no corrective action, the violation was clearly the result of high
negligence and "unwarrantable failure."
Weisbeck also detennined from his inspection of MSHA's file on Respondent's mine that
Respondent had been cited for the same hazard-sprinkler heads missing and the water valve turned
off for the fire sprinkler system at the 800 Portal - on three prior occasions. Weisbeck issued the
latest of these three citations in March 2003, and asked Haley why the painting of the timbers in the
800 Portal was not completed. It is not disputed that Haley told Weisbeck that they had run out of
fire-retardant paint and that Miller was not going to buy any more.
After the March 2003 inspection, Weisbeck inspected Respond~nt' s mine three more times
and, although there was no violation to cite because the sprinkler system was functional, he noticed
that Respondent had not completed painting the 800 Portal's timbers with fire-retardant paint.
During the last of those three visits and in anticipation of another winter "freeze and thaw" season,
it is undisputed that Weisbeck again brought the incomplete paint job to Respondent's attention and
Respondent assured him that they would complete the painting of the 800 Portal.
The evidence thereby establishes that as a result of the prior citations and verbal warnings
given by Weisbeck and other MSHA inspectors, Respondent knew that in order to comply with the
cited standard he needed to maintain the fire sprinkler system in a functional condition or to
completely paint the timbers in the 800 Portal with fire-retardant paint. These factors therefore
provide an independent basis for finding high negligence and "unwarrantable failure."
Citation No. 6353511
Citation No. 6353511 alleges a violation of the standard at 30 C.P.R. § 57.1105l(a) and charges as
follows:
The alternate secondary escape route was not inspected for a safe and travelable condition
along with not being clearly marked to indicate the way of escape. The original secondary
escape route had a gob wall failure on the 1700 making the route impassible. The alternate
2

Haley acknowledged at hearings that he was "for MSHA purposes" the operator's mine
manager.
27 FMSHRC 604

route was decided to be on and across the 1300 to the 49 winze in which all the miners have
not traveled for at least a month or more. Creating hazards of confusion, disorientation,
entrapment and mine rescue not knowing the designated route. Five miners work in the
underground mine daily.
The cited standard, 30 C.F.R. § 57.11051(a), provides, in relevant part, that "[e]scape routes
shall be-(a) [i]nspected at regular intervals and maintained in a safe, travelable condition ... ". It is
undisputed that mine manager Haley was aware, at least several days before this citation was issued,
that the prior designated secondary escapeway (on the 1700 level) had a gob wall failure making the
route impassable. It is also undisputed that the alternate route, on the 1300 level to the 49 winze,
contained a hole five to six feet deep and six to eight feet in diameter with only a plank to cross it.
Weisbeck's testimony is also undisputed that while traveling the 1300-level route the inspection
party had to "belly crawl" over certain areas. Within this framework of evidence, I have no difficulty
in finding that the violation is proven as charged.
The violation was clearly also of a serious nature. Weisbeck interviewed the underground
miners and found that two were unaware of the newly purported designated secondary escapeway
at the 1300 level. In addition, there was no marking or signage to indicate that it had been designated
as the secondary escapeway. Under these circumstances, some miners would not, in certain
emergencies, find a safe escape route. In addition, as noted by Inspector Weisbeck, rescue teams
would not know where to look for miners injured or overcome by smoke who might have become
lost in trying to escape without knowledge of the purported new secondary escapeway.
I also find that the violation was a result of high operator negligence. Mine manager Haley
admittedly knew for some time that the previously designated secondary escapeway had become
blocked by a gob failure and, should have known from having traveled the purported newly
designated secondary espcapeway, that it was not a safe and suitable route. His negligence, and
therefore the operator's negligence, it is further enhanced by the fact that not all miners were told
of the newly designated secondary escapeway on the 1300 level and that no signage or markings
were in place to identify that route as the secondary escapeway.
Docket No. WEST 2004-330-M
Citation No. 6353507
Citation No. 6353507, as amended, alleges a violation of the standard at 30 C.F.R. § 57.4101 and
charges as follows:
No readily visible signs prohibiting smoking and or open flames were posted at the two fifty
five gallon fuel barrels used for storage of the air compressors fuel supply. The containers
were not sealed tight and had a 12-volt pump in the opening of the barrel, creating fire or
explosion hazards in an area near the lower shop and the mine portals air intake area where
miners work daily.

27 FMSHRC 605

The cited standard provides that "[r]eadily visible signs prohibiting smoking and open flames
shall be posted where a fire or explosion hazard exists". There is no dispute that there were no signs
prohibiting smoking and or open flames posted at the two 55 gallon fuel barrels used to supply diesel
fuel to the air compressors as cited. There is also no dispute that the containers were not sealed tight
and one had a twelve-volt pump in the opening of the barrel. According to the undisputed testimony
of Inspector Weisbeck, each had a two-inch opening with a three-quarters to one-inch hole in the
opening. One had an electric cord near the top of the barrel providing power to a twelve-volt pump.
The credible evidence also establishes that the barrels and the surrounding ground were wet with
fuel.
While the operator's witnesses acknowledged that diesel fuel was contained in the barrels
for at least several days at a time, Mr. Miller, on behalf of the operator, maintained that the barrels
were not used for storage. However, Miller misconstrues the nature of the violation charged under
the cited standard. The issue is whether "readily visible signs prohibiting smoking and open flames
[were] posted where a fire or explosion hazard exists". It is therefore irrelevant whether or not the
fuel barrels were "used for storage" since it is admitted that they contained combustible fuel with
potential ignition sources thereby presenting a fire or explosion hazard.
I accept Inspector Weisbeck's assessment that the violation was unlikely to cause injury or
illness. Weisbeck testified that conditions were damp and that there was no torch work or grinding
nearby. Weisbeck also observed that a fire extinguisher was located nearby. He found only
"moderate" negligence based on an admission by Mr. Haley that the condition was an "oversight".
I find no reason to modify Weisbeck's findings.
Citation No. 6353508
Citation No 6353508 alleges a violation of the standard at 30 C.F.R. § 57.4102 and charges as
follows:
Under the air compressor unit located at the lower shop and portal area there was
combustible liquid spillage and leakage with little fuel puddles up under the unit along with
fuel oil soaked dirt. There was [sic] several little puddles estimated 3" by 5" that appeared
reddish in color from the red fuel oil used which appeared to have existed for weeks from
the saturation levels in the dirt under the unit, creating potential fire and smoke hazards in
an area close to the air intake of the mine portal. Four to five miners work on the surface
area and in the underground mine daily.
The cited standard, 30 C.F.R. § 57.4102, provides that "[f]lammable or combustible liquid
spillage or leakage shall be removed in a timely manner or controlled to prevent a fire hazard."
The testimony of Inspector Weisbeck regarding this violation is essentially undisputed.
According to his credible testimony there were puddles of fuel beneath the compressor unit
approximately one-quarter inch deep. The area was saturated suggesting to Inspector Weisbeck that
the condition had existed for some time. According to Weisbeck, the hazard, of low gravity, would
be from fire or smoke created by ignition of the fuel oil, possibly from a cigarette. He found
27 FMSHRC 606

operator negligence to be "moderate" apparently based on the fact that the area had been saturated
thereby indicating that the condition had existed for some time. While Mr. Miller thought the spills
were "fresh" because he saw only a few drops of fuel actually fall, I accept the inspector's credible
testimony and find that the violation is proven as charged but with low gravity and moderate
negligence.
Citation No. 6353509
Citation No. 6353509 alleges a violation of the standard at 30 C.F.R. § 57.4533(a) and charges as
follows:
An estimated 8' by 24' foot long trailer building has been set up within 56' feet of the mine
openings portal and air intake. The building is not of a non-combustible material nor does
it meet a fire resistance rating of no less than one hour. Creating fire and smoke hazards near
the mine portal air intake in the event of a fire and wind conditions [sic]. Five miners work
in the underground mine daily.
The cited standard, 30 C.F.R. § 57 .4533(a), provides that "[s]urface buildings or other similar
structures within 100 feet of mine openings used for intake air or within 100 feet of mine openings
that are designated escapeways in exhaust air shall be(a) Constructed of noncombustible materials..."
(b) Constructed to meet a fire resistance rating of no less than one hour; or
(c) Provided with an automatic fire suppression system; or
(d) Covered on all combustible interior and exterior structural surfaces with noncombustible
material or limited combustible material, such as five-eighth inch, type "X" gypsum wallboard.
Inspector Weisbeck's testimony is undisputed that the cited trailer was within 56 feet of the
mine' s opening portal and was not made of non-combustible material meeting a fire resistant rating
of no less than one hour. It is also apparent that no automatic fire suppression system was provided
on the outside of the trailer (Exhibits. P-7 and P-8). It is also clear from Weisbeck's credible
testimony that this portal was an air intake for at least part of the time. Mr. Miller agrees. The
violation is accordingly proven as charged. Inspector Weisbeck found that the hazard of an ignition
and fire causing smoke and moving into the air intake of the mine thereby exposing the underground
miners to the related dangers, was "unlikely".
Mine Manager Haley acknowledged that he told Sixteen to One President, Michael Miller,
that it would be a violation to place the trailer where it was subsequently found by the inspector.
Haley therefore wanted to place the trailer more than 100 feet away from the mine portal but Miller
overruled him and had the trailer placed where it was subsequently found by the inspector, only 56
feet from the portal. Under the circumstances, the violation was intentional and in flagrant disregard
of the mandatory standard. It was therefore the result of the highest form of "negligence."
Citation No. 6353510
Citation No. 6353510 alleges a violation of the standard at 30 C.F.R. § 57.443l(a)(l) and charges
as follows:
27 FMSHRC 607

Unburied combustible liquids are being stored within 75' feet ofthe mine openings portal and
air intake. Two 55 gallon barrels of diesel fuel oil were stored for the air compressors
weekly use at the lower shop area. The barrels had a 12-volt pump inserted into the barrel
for fueling the compressor along with some spillage or leakage around the compressor and
barrels. Creating fire and smoke hazards in the event a fire was to break out in the area. Five
miners work in the underground mine daily.
The cited standard, 30 C.F.R. § 57.4431, provides, in relevant part, as follows:
(a) On the surface, no unburied flammable or combustible liquids or flammable gases shall
be stored within 100 feet of the following:
(1) Mine openings or structures attached to mine openings.
There is no dispute that the two 55 gallon barrels of diesel fuel were positioned within 75 feet
of the mine portaf opening as alleged. While acknowledging that diesel fuel was indeed contained
in the barrels as cited and that such fuel would remain in the barrels for up to two days at a time,
Respondent argues that the fuel was nevertheless not "stored" in those barrels and that therefore
there was no violation of the cited standard. Since the term "store" is authoritatively defined as "a
source from which things may be drawn as needed" and is synonymous with the term "hold", I find
Respondent's argument to be without merit. See Webster's Third New International Dictionary
(Unabridged) 2252 (2002).
Inspector Weisbeck found no nearby ignition sources and concluded that injuries were
"unlikely". He cautioned however that should there be fire and smoke, there was a danger of smoke
inhalation to the miners underground. Weisbeck found only moderate negligence, relying upon the
statement by Mr. Haley that he was not aware that he could not store fuel within 100 feet of the mine
portal.
Citation No. 6353512
Citation No. 6353512 alleges a "significant and substantial" violatipn of the standard at 30 C.F.R.
§ 57.4360(a) and charges as follows:
The fire alarm system was not functional nor capable of promptly warning every person
working underground in the event of a fire. The Mercaptan Stench Cartridge located at the
upper shop and old compressor area was totally missing from its location along with the
likelihood ·of it being in a [sic] air lock in this configuration. The inlet tube from the
cartridge to the mine air system was in place and it appeared the cartridge had been missing
for a while. Conditions at the portal present discrete hazards at this time and contribute to
the likelihood based on continuous mining operations. Five miners work in the underground
mine daily.
The cited standard, 30 C.F.R. § 57.4360(a), provides that "[fJire alarm systems capable of
promptly warning every person underground, except as provided in paragraph (b), shall be provided
and maintained in operating condition." The operator does not claim that the exception provided in
· 27 FMSHRC 608

paragraph (b) of _the cited standard is applicable herein.
The stench system was attached to the compressed air flow system to the mine. The system
can be manually activated by puncturing the stench cartridge, sending a "rotten cabbage" smell
throughout the mine and thereby signaling the miners to evacuate. There is no dispute that the cited
stench fire alarm system at the Sixteen to One mine was indeed not functional. It is further
undisputed that the Mercaptan Stench Cartridge was absent thereby preventing the system from
operating. According to Inspector Weisbeck, miners and the miners representative told him that they
had removed an expirep cartridge and had no others to replace it. According to them, the cartridge
had been missing for weeks. According to Weis beck, even if the cartridge had been replaced there
would not have been enough pressure to operate the stench system since the compressor was not
working.
·
Respondent argues that it was not necessary to have the stench warning system in a working
condition because it could provide warning by way of the mine telephone system. Mine Manager
Haley testified that either the stench system or the telephone system could be used to warn miners
of a fire. It is undisputed, however, that the miners were trained in a fire alarm system based on the
stench system. As noted, the stench system depends upon the transmission by mine ventilation of
the strong and distinctive odor of rotten cabbage. Since the miners were trained in the use of the
stench warning in the event of fire and would therefore, in the event of a fire, expect to receive such
a warning, I find that it was the duty of the mine operator to maintain it in a functioning condition.
The telephone system would not, in any event, be a reliable means of communicating to all miners.
Inspector Weis beck testified credibly that, on three or four occasions during his six prior inspections,
underground miners could not be reached by the mine telephone.
I also find that the violation was of high gravity and "significant and substantial". I agree
with the inspector that it was reasonably likely for fatalities to occur since there was no other reliable
means to alert miners in the event of fire. I further find that the violation was the result of high
operator negJigence. Sixteen to One President Miller acknowIedged that he had ordered the removal
of the stench cartridge in the summer of 2003, at least five months before the citation at bar was
issued. Miller further testified that he then thought there were only outdated _cartridges available at
the mine. When later told that a working cartridge was found at the mine, MiJler refused to alJow
it to be installed.
Civil Penalty Analysis
In assessing a civil penalty under Section 11O(i) of the Act, the Commission and its judges
must consider the operator's history of previous violations, the appropriateness of such penalty to
the size of the business of the operator charged, whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after notification of the
violation. Sixteen to One has a modest history of violations. It is a small size business and achieved
appropriate compliance after notice of the violations herein. Gravity and negligence have been
previously discussed. Any claim regarding the effect of penalties on Respondent's ability to
continue in business was barred by order of the undersigned judge because of its failure to have
27 FMSHRC 609

responded to the Secretary's discovery requests in thi~ regard. ·

ORDER
Citations No. 6353507, 6353508, 6353509, 6353510, 6353511, 6353512 and 6353514 are affirmed
and the Respondent is directed to pay the following civil penalties, totaling $4,180.00, within 40
days of the date of this decision:
Docket No. WEST 2004-472-M
Citation No. 6353511-$500.00, Citation No. 6353514-$2,000.00.
Docket No. WEST 2004-330-M
Citation No. 6353507-$60.00, Citation No. 6353508-$60.00, Citation No. 6353509-$500.00,
Citation No. 6353510-$60.00, Citation No. 6353512-$1,000.00.

GaryM ick
Administrative Law Judge
(202) 434-9977

·Distribution: (First Class Mail)
Isabella M. Del Santo, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street,
Suite 1110, San Francisco, CA 94105
Michael M. Miller, President, Original Sixteen to One Mine, fuc., P.O. Box 909~ 527 Miners Street,
Alleghany, CA 95910
/lh

27 FMSHRC 610
G:,()· U.S. GOVERNMENT PAINTING OFFICE: 200$-310-984/25303