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Peabody Midwest Mining, LLC

MSHA issued a Section 104(d) order for an alleged violation of 30 C.F.R. Section 75.363(a), which requires any hazardous condition found by the mine foreman (or other certified person) to be posted with a conspicuous danger sign where anyone entering the areas would pass. The standard also requires the hazardous condition be corrected immediately or the area to remain posted until the hazardous condition is corrected. Here, the MSHA inspector found accumulations in an area of the mine and the operator failed to immediately address the accumulations. Specifically, the MSHA inspector found, despite the obvious hazard posed by the accumulations, the operator’s examiners continued to identify the accumulations as a “condition” and did not address it for multiple shifts.

The operator first argued the accumulations were not combustible coal dust but rather a combination of rock dust and road dust with low amounts of permitted float dust. As such, the operator argued the alleged violation of 30 C.F.R. Section 75.363(a) should be vacated because the condition was non-hazardous and did not need to be immediately corrected.

ALJ Simonton noted to establish a violation of 30 C.F.R. Section 75.363(a), the Secretary must first establish hazardous conditions existed and the hazardous condition had not been corrected or posted. Here, ALJ Simonton credited the testimony of the operator’s witnesses who stated the accumulations were mixtures of road and rock dust that neutralized any presence of coal dust. Importantly, ALJ Simonton found none of the photographs offered by the Secretary indicated significant evidence of large amounts of coal dust – a fact supported by the operator’s samples, which were well above the minimal incombustibility level. Moreover, ALJ Simonton credited the operator’s examination books wherein it was consistently noted corrections to ongoing accumulation issues. As such, ALJ Simonton vacated the unwarrantable failure order because the Secretary failed to establish a hazardous condition existed at the time of the inspection.

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume IX, Number 197


About this Author

Robert Huston Beatty Jr, Dinsmore Shohl Law Natural Resources Litigation, lawyer

Robert Huston Beatty, Jr. is a member of the Natural Resources Practice Group. Bob represents mine operators before federal and state administrative agencies, federal courts, and state courts. He also provides pre-enforcement consulting services, including comprehensive training for mine managers and safety professionals.


J.D., West Virginia University College of Law (1993)
B.A., West Virginia University (magna cum laude, honors scholar, 1990)

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West Virginia

Jason M. Nutzman, Dinsmore Law, Labor Lawyer, Mine Safety Attorney

Jason Nutzman is a member of the Labor & Employment Department and Mine Safety & Health Practice Group. Jason represents clients before the Federal Mine Safety and Health Review Commission in accident investigations, special investigations, and discrimination investigations conducted by the Department of Labor with respect to the
Mine Safety and Health Act.

In his practice, he works with human resource managers and in-house counsel providing employment advice and litigation support to employers. Jason also provides employment counseling to employers from the beginning of the employment relationship through termination and employment advice covering all types of discrimination and wrongful discharge, FMLA, ADA, ADEA and FLSA issues, and non-compete agreements. Jason is also experienced in representing clients regarding labor issues, including dealing with unions during a labor campaign and assisting management with a unionized workforce.

(304) 357-9938
Lorna M. Waddell, Dinsmore, Of Counsel mine safety and health lawyer
Of Counsel

Lorna Waddell is a member of the Labor and Employment Department. She practices in the area of mine safety and health. 

Prior to joining the firm, Lorna worked for two separate law firms in Morgantown for a total of 13 years. After graduating from law school, she served as law clerk for the late Honorable Robert E. Maxwell, United States District Court for the Northern District of West Virginia. Lorna has also served as an adjunct lecturer on appellate advocacy at West Virginia University College of Law.

Kelby Thomas Gray, Labor and Employment Attorney, Dinsmore Shohl, Law firm

Kelby Thomas Gray is a member of the Labor & Employment Department and Mine Safety & Health Practice Group. Prior to joining the firm, Kelby practiced in the Beckley, West Virginia office at Pullin, Fowler, Flanagan, Brown & Poe, PLLC where he served as a member of the Litigation Department. Earlier in his career, Kelby served as an Assistant Prosecutor at the Jackson County Prosecutor's Office in Ripley, West Virginia.