1

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE N. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933 

Telecopier No.: 202-434-9949

 

May 19, 2020

DECISION ON REMAND

Before: Judge William B. Moran 

The above-captioned matter is before the Court on remand from the Commission. 

The docket involves a Petition for Assessment of a Civil Penalty pursuant to section 105(d) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.§ 815(d), (“Mine Act”). The Court 

issued its original Decision and Order on March 29, 2018. Thereafter the Commission granted 

review on May 8, 2018 and a Commission majority1 issued its decision remanding this matter to 

the Court on March 12, 2020. The Majority affirmed the Court’s previous decision in this matter 

regarding the fact of violation, its gravity, and negligence, but remanded the case for this Court 

to further elaborate on the bases for assessing a penalty. Solar Sources, Inc., 42 FMSHRC ___, 

slip op., No. LAKE 2017-0099, 2020 WL 1890528 (March 12, 2020) (hereinafter “Majority 

Decision” or “Remand”). 

 1 The Commission majority consisted of Chairman Marco Rajkovich, and Commissioners 

Michael Young and William Althen. Commissioner Arthur R. Traynor, III, joined Parts A and B 

with the majority but agreed in result only as to those two parts for the purpose of this Court 

making “specific findings regarding the operator's history of violations and demonstrated good 

faith in achieving rapid compliance and for the Judge to assess a civil penalty.” Solar Sources, 

42 FMSHRC ___, slip op. at 23-30, 2020 WL 1890528 at *17-24 (Commissioner Traynor, 

concurring and dissenting). Commissioner Mary Lu Jordan dissented from the majority opinion 

in its entirety, concluding that the Court’s penalty assessment should be affirmed. Id. at 31-39, 

*24-31 (Commissioner Jordan, dissenting).

SECRETARY OF LABOR, MINE 

SAFETY & HEALTH 

ADMINISTRATION,

 Petitioner,

v.

SOLAR SOURCES MINING, LLC

 Respondent.

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2017-0099

AC No. 12-02374-424654

Mine: Shamrock Mine

Mine ID: 12-02374
2

The Commission majority determined that this Court “clearly failed to follow 

Commission precedent and fell far short of making adequate findings,” in that the 

Court failed to make adequate findings for each of the penalty criteria in section 110(i) 

and therefor remanded this matter for the Court to “complete [its] penalty criteria 

findings and reassess a penalty.” Solar Sources, 42 FMSHRC ___, slip op. at 1-2, No. 

LAKE 2017-0099, 2020 WL 1890528 at *1.

2

 

The Commission Majority’s Decision Upon Remand

To increase the likelihood that the Court’s decision upon remand will meet the Majority’s 

remand instructions, the Court will recount the particulars of the remand decision. As alluded to 

above, the Majority in its remand directed the Court:

to make specific findings regarding the operator's history of violations and the

operator's actions related to attempting to achieve rapid compliance after

notification of a violation, ... [and then] review th[o]se factors taking into

account the findings on the other penalty criteria. The Judge must then consider

his penalty criteria findings along with the record evidence, reassess a civil

penalty, and explain his rationale in an independent and reasoned manner. 

Id.. at 8, *6.

The Respondent, in its challenge to the Court’s initial decision, contended that the Court 

“failed to make adequate findings for each of the penalty criteria in section 110(i), 30 U.S.C. 

§830(i), of the Mine Act as part of his analysis.” Id. at 1, *1.

As the Majority determined: 

[t]he Judge concluded that the violation was S&S, the result of high negligence,

and an unwarrantable failure to comply with the safety standard. The Secretary

had proposed a $68,300 civil penalty through his special assessment protocol

at 30 C.F.R. § 100.5. The Judge assessed the exact same amount as the

proposed penalty, finding it to be “consistent with the record and the evidence

introduced at hearing.” Id.at 495.

Id. at 2, *2 (citing Solar Sources, 40 FMSHRC 462 (Mar. 29, 2018) (ALJ)). However, the 

majority noted “Commission Procedural Rule 30(a) instructs Judges that their decisions ‘shall 

contain findings of fact and conclusions of law on each of the statutory criteria and an order 

requiring that the penalty be paid.’” Id. at n. 5 (citing 29 C.F.R. § 2700.30(a)).

 2 While the Court is embarrassed that it “fell far short,” there is some comfort that its 

shortcoming has company. As the Commission noted in that regard, it “need not plow through a 

tedious review of the dozens of remands of penalty assessments due to the failure of Judges to 

make the necessary findings.” Solar Sources, 42 FMSHRC ___, slip op. at 5, 2020 WL 1890528 

at *4 (emphasis added).
3

The Commission did not take issue with this Court’s analysis for two of the six statutory 

penalty factors, stating that, “it is obvious that the Judge limited his analysis discussion to only

two of six statutory factors in the text.” Id. at 7, *5. As to those two factors, the 

Commission referenced the Court’s decision recounting that the Court “ found that the

violation identified in Citation No. 9102704 was established and that the Inspector's

evaluation of the gravity and negligence and his finding of unwarrantable failure and

significant and substantial were demonstrated [and] that no cognizable mitigation was

advanced ...” Id. 

In light of those expressions, the majority directed that:

the Judge [ ] make specific findings regarding the operator's history of

violations and the operator's actions related to attempting to achieve rapid

compliance after notification of a violation, consistent with the requirements

of Commission Procedural Rule 30(a) and section 110(i) of the Mine Act. 

[The Judge] must review these factors taking into account the findings on the

other penalty criteria. The Judge must then consider his penalty criteria

findings along with the record evidence, reassess a civil penalty, and explain

his rationale in an independent and reasoned manner. 

Id. at 8, *6. 

The majority then turned to Part B of its decision, which has as its heading 

“The Judge Need Not Reconcile the Differences Between His Penalty Analysis and 

the Secretary's Narrative Findings for a Special Assessment.” Id. at 9, *7. 

Addressing one of the specifics in Solar Sources’ appeal before the Commission, the 

majority noted that the Respondent identified: 

discrepancies between the Judge's findings and the Secretary's allegations. 

Specifically, the Secretary alleged that the operator knew or should have known of 

the poor condition of the berms because a certified person had performed an onshift examination prior to the accident. Notably, the order alleging an inadequate 

on-shift examination was vacated by the Judge. Furthermore, the Secretary's 

narrative alleged that the berms were constructed of slurry while the Judge found 

that, originally, the berms had been constructed of shot rock. 

Id. (emphasis added).

Regarding the majority’s remark that it found it notable that the order alleging an 

inadequate on-shift examination was vacated by the Court, that statement by the majority marks 

a significant misunderstanding of the Court’s March 29, 2018 decision. Because it is important, 

the Court needs to clarify the misperception it created for the majority in their remand decision. 

It is true that the Court found that the berm was originally constructed of shot rock, but that only 

tells part of the story, because, over time, as the operator was dumping its soupy slurry at the 
4

dumping site and because it failed utterly to monitor the effect of that practice on the soundness 

of the berm dump site, it altered the original soundness of the dump site and berm, resulting in its 

collapse.3

 3 As the Court made clear in its March 2018 initial decision findings of fact, Inspector Noel 

stated that for what remained of the berm, it was “mostly mud. It was a muddy consistency 

throughout the entire berm, like, kind of like slicing a Twinkie in -- with a knife, and once you 

slice the Twinkie, you can see the inside of the Twinkie. Kind of like the same thing with the 

berm here.” Tr. 64 Noel informed that, using his hands, he examined the consistency of the 

berm material, confirming its muddy makeup. Tr. 70. He added to that description that it was a 

“consistency [that] really reminds me of similar to cottage cheese. The texture of it, it’s kind of--

it’s got a little bit of lumpy mud in it, but it’s -- it’s heavily saturated with water. ... it’s just real 

gooey, mushy. ... it was just a -- a real fine mud.” Tr. 71-72. Upon consideration of all the 

evidence, the Court finds that in fact the berm material was as described by the inspector.” 40 

FMSHRC 462, at 465. Although the foregoing information in this footnote makes it clear 

enough just what the Court found, it is also noted that Inspector Noel expressed his view that 

when the berm was initially constructed it was made of substantial material but that “[a]fter 

hauling this slurry material that they were hauling to this dump, it landed -- they would have 

spillage onto the berm, and that spillage would cause, you know, the -- the water that’s in that 

slurry would leach down into the -- the berm and weaken the berm. It would saturate the berm. 

So the berm really wasn’t at the consistency of the slurry, but it was a -- of a muddy consistency 

and -- and it weakened the berm, as a result.” Id. at 465. Further, as also found by the Court as 

fact, Inspector Noel explained that the material which is hauled and then dumped into the pit is 

“real soupy. ... if the [truck] operator would slam on the breaks real hard, it would slosh out.” 

Tr. 80. As the Court remarked, relating to the inspector’s description, “[ t]his description is not 

in dispute.” Id. at 466 (emphasis added). With these findings, the Court then expressed that, 

based on the testimony of Inspector Noel, which the Court found to have been derived upon his 

significant experience and knowledge concerning berms and which testimony the Court also 

found to be credible, there were at least two significant shortcomings by the mine operator at 

work in this instance. First, by dumping the soupy slurry mix, such activity worked to 

destabilize the berm. That action effectively poured liquid over the berm, saturating it and in that 

process weakening it. A second shortcoming was the mine’s failure to be attentive to the truck 

hitting the berm, a second source of damaging its integrity. That action weakened the berm by 

damaging its cohesion. Thus, the mine was deficient by not retraining its miners to stop that 

damaging practice. It also meant that the mine had to rebuild the berm because of that damage to 

its integrity. The “muddy mixture” which the inspector also described as “mushy material,” and 

which he observed on both sides of the breached area, demonstrated that it had not been properly 

maintained. 
5

There also appears to be a second noteworthy misperception concerning the significance 

of the Court’s determination to vacate the alleged sister violation in this matter, a section 

104(d)(1) order, for an inadequate on-shift examination. To be clear, the Respondent escaped 

responsibility for that order only because it had the whole shift on the day of the accident to 

complete its on shift exam. The berm collapsed before the shift ended. The testimony at the 

hearing from pit foreman Keith Lutgring was that he only glanced at the berm that day, and that 

his glance was before the shift began. There was no testimony to refute the claim that, whatever 

Lutgring actually did that morning, it was before the shift started. The cited standard requires an 

inspection “[a]t least once during each working shift.” And, for that reason only, Solar Sources 

escaped liability for that order. 

However, it should not go without mention that a notably different story was presented by 

Solar Sources, shortly after the truck toppled down the slope from the berm’s collapse. In a letter 

to MSHA dated July 11, 2016, that is to say, less than 2 weeks after the event occurred, Solar 

Sources told MSHA “[t]he mine foreman acknowledged he observed the berm in place when he 

was performing his inspection prior to the gob truck dumping in this area... [t]he foreman 

indicated that he examined the berm and that it was in place.” Ex. P. 8. Had the Secretary 

amended the complaint to allege that there had been an inadequate on shift exam on the previous

working shift, based on the evidence of record, which evidence supports a finding that the 

deplorable condition of the berm could not have occurred so suddenly, the Court would surely 

have upheld that Order. The Commission case law is quite clear: the Secretary could have 

moved for such an amendment of that Order. See, e.g., Cyprus Empire Corp., 12 FMSHRC 911, 

916 (May 1990); El Paso Rock Quarries, Inc., 3 FMSHRC 35, 38 (Jan. 1981) and Sunbelt 

Rentals, Inc., 38 FMSHRC 1619, 1631, (July 2016). The Court did not feel it was its place to 

suggest during the hearing that the Secretary seek an amendment of the complaint to conform to 

the evidence. 

Returning to the majority’s statement, above, that the Court need not reconcile 

differences between its penalty analysis and the Secretary’ narrative findings for a 

Special Assessment, the majority expressed in Part B of its remand that there was not 

error in the Court’s “failing to reconcile any differences between his findings and the 

Secretary's pre-hearing allegations, but instead [it] was in failing to exercise his own 

responsibility to conduct an independent and reasoned analysis, using the record 

evidence.” Solar Sources, 42 FMSHRC ___, slip op. at 9, 2020 WL 1890528 at *7

(emphasis in original).

Both Parts B and C of the majority’s opinion speak to its view of Special 

Assessments in the context of the judge’s penalty analysis. Both Parts advise that the 

judge need not reconcile differences between his original penalty analysis and the 

Secretary’s Special Assessment narrative findings, per subsection B, nor, as set forth 

in subsection C, with the judge’s reassessed penalty and the Secretary’s proposed 
6

penalty amount under his Special Assessment procedure.4 

For purposes of the Court’s duty “to complete [its] penalty criteria findings and 

reassess a penalty,” it is unnecessary to recount in great detail the majority’s 

expressions on these two, related, topics. Id. at 1-2, *1. This is because, for Part C 

in particular, the wealth of the majority’s expressions on these topics address its view 

that the United States Court of Appeals for the District of Columbia Circuit mused5

 4 Per the heading for subsection B, the majority states “The Judge Need Not Reconcile the 

Differences Between His Penalty Analysis and the Secretary's Narrative Findings for a Special 

Assessment,” and per the heading for subsection C, the majority states “The Judge is Not 

Required to Reconcile His Reassessed Penalty with the Amount Proposed by the Secretary 

According to his Special Assessment Procedures. Solar Sources, 42 FMSHRC ___, slip op. at 9-

10, 2020 WL 1890528 at *6-7.

5 The Majority took the opportunity to address a musing by the United States Court of Appeals 

for the District of Columbia Circuit in that court’s American Coal decision, 933 F.3d 723, 728 

(D.C. Cir. 2019). Speaking to the DC Circuit’s “apparent impression of an inconsistency in 

Commission law,” and feeling that “[i]t was incumbent on the Commission to correct the [D.C. 

Circuit] court's misapprehension of [the Commission’s] precedents and the operation of the 

Secretary's special assessment program,” the majority explained that the federal “courts must 

understand the fundamental importance of the Commission's penalty directives-especially 

because the ‘two directions’ noted by the court are not separate, divergent paths.” Solar 

Sources, 42 FMSHRC ___, slip op. at 10, 19, 2020 WL 1890528 at *8, 15. (emphasis in 

original). The majority’s clarification to address the D.C. Circuit’s “apparent impression of an 

inconsistency in Commission law” begins with discussing the “fundamental distinction between 

regular and special assessments.” Id. at 10, *8. They note that the Secretary’s penalty proposal 

is not a starting point for the judge to use as a guidepost, while acknowledging that a judge must 

explain a penalty which substantially diverges from the proposed penalty. Id. at 13, *10. These 

are not, the majority expresses, “divergent paths.” Id. at 10, *8. The substantial divergence 

principle is in place in order to establish general uniformity in the assessment of penalties. 

However, the substantial divergence principle does not apply, the majority expresses, to Special 

Assessments because those are not grounded “on the general transparency and consistency of 

MSHA’s process for developing regular assessment proposals.” Id. at 12, *9 (emphasis in 

original).

“MSHA's regular penalty system represents the agency's professional judgment on the 

relative importance of the facts of violation and each of the penalty factors and sub-factors. ... 

[affording the mine operator with] a basis for determining how the penalty was calculated.” Id. at 

13, *10. Thus, the majority expresses that, in comparison with Special Assessments, the regular 

assessment procedure provides fairness and transparency in penalty assessments. The majority 

recognizes that Special Assessments substantially increase penalties “in order to address agency 

enforcement priorities.” Id. at *11. But the majority is critical of this approach because it adds 

“points to the negligence and gravity elements, without accounting for other statutory penalty 

criteria or considering the specific facts of the violation.” Id. at 14, *11.
7

that the “Commission’s case law ‘seems to point in two directions’ regarding 

Commission Judges’ use of the Secretary's penalty proposal as any sort of reference 

point.” Id. at 10, *7 (emphasis in original). For that reason, the majority spoke to 

the D.C. Circuit’s “apparent impression of an inconsistency in Commission law 

[which they believe] demands prompt clarification.” Id., *8. The majority then 

discusses from page 10, the beginning of subsection C of its decision, through the 

end of their decision at page 21, an extensive expression of their views on this.6 

The majority continued that 

the Judge limited his analysis discussion to only two of six statutory factors in the 

text [and they noted] [i]n a footnote, he summarily discharged the ‘other statutory 

factors’ as ‘duly considered.’ This abrupt footnote is no demonstration that he 

considered all criteria sufficiently. In addition to the overall short shrift given 

these statutory criteria, the Judge's decision was totally deficient of any evaluation 

of “the operator's history of previous violations’ and ‘the demonstrated good faith 

of the [operator] charged in attempting to achieve rapid compliance after 

notification of a violation.” See 30 U.S.C. § 820(i); 29 C.F.R. § 2700.30(a). The

 

The majority also expressed that MSHA’s Program Policy Manual (“PPM”) does not 

cure the deficiencies it identifies with the Special Assessment process and, speaking to the 

Special Assessment narrative, they find fault with that narrative by “not explain[ing] why MSHA 

singled out this particular citation for special assessment.” Id. at 16, *12. However, the Court 

believes that some might conclude that the MSHA’s presentation of its view of the facts in the 

narrative itself could be construed as a self-evident explanation for the agency’s decision. 

Acknowledging that “[m]any Commission decisions state, directly or indirectly, that the 

Secretary's penalty proposal is not a baseline or starting point, while other decisions require 

Judges to explain any substantial divergence from the penalty proposal of the Secretary,” the 

Majority stated these are not really “divergent paths, [as] they work together to preserve the 

credibility of the administrative scheme and avoid the appearance of arbitrariness. In their 

proper context, each of these principles is correct. They are complementary approaches that 

serve the same important objective.” Id. at 11, *8. 

6 Very briefly, at least as the Court reads them, the majority’s expressions in this regard note that 

the Secretary’s penalty proposals don’t bind the Commission, as it assesses penalties de novo, 

that a judge must make findings of fact for each of the six penalty criteria and that a judge must 

explain any substantial divergence from a regular penalty assessment, but not for Special 

Assessments. In reaching these conclusions, the majority included an extended discussion of 

regular assessments and the “normative benefits” that such assessments provide, as contrasted 

with the majority’s view of the deficiencies of Special Assessments. Id. at 10-21, *10-16.
8

record contains highly relevant evidence regarding the operator's violation 

history. Yet, the Judge did not engage in any analysis and did not make any 

finding on the possible significance of such evidence. The Judge merely 

references Government Exhibit P-2. 

Solar Sources, 42 FMSHRC ___, slip op. at 7, 2020 WL 1890528 at *5-6.

“On remand, the Judge is directed to independently reassess a penalty in accordance with 

AmCoal I. The Judge must then explain the rationale for his penalty assessment using the 

statutory penalty criteria and the record evidence.” Id. at 10, *7. The Commission went on to 

state that “the findings and explanations relating to a penalty assessment do not have to be 

exhaustive, they must at least provide the Commission with a basis for determining whether the 

judge complied with the requirement to consider and make findings concerning the section 

110(i) penalty criteria.” Id. at 10, n. 14, *7.

As described below, in the Findings of Fact and Discussion section of this decision upon 

remand, providing findings for each of the penalty criteria in section 110(i), the Court will make 

the required independent and reasoned analysis using the record evidence. 

Drawing a contrast between regular assessments and Special Assessments, the majority 

instructed that when the penalty assessed by the Judge substantially diverges from a proposed, 

regularly assessed penalty, the Commission requires Judges to provide an explanation for the 

divergence to avoid an appearance of arbitrariness in penalty assessments. Id. at 13, *10. 

The majority’s view of and approach toward Special Assessments is quite distinct. 

They described the Special Assessment process as one which works by “adding points to the 

negligence and gravity elements, without accounting for other statutory penalty criteria or 

considering the specific facts of the violation.” Id. at 14, *11. Considering the Special 

Assessment process to be “opaque,” the majority expressed that there is no requirement for a 

judge to explain divergences from such assessments. Id. at 19- 20, *15. 

Where a Special Assessment is sought, “the Judge must base a decision only upon a 

complete review of the evidence pertaining to each of the penalty factors, a weighing of those 

factors in the context of the facts, and a final resolution based only upon such careful and fully 

explained review.” Id. at 18, *13. 

However, the Commission did not assert that a Special Assessment is inherently 

defective, expressly stating that “[o]f course, it is entirely appropriate for a Judge to fully 

consider the agency's proposal to treat a given violation as especially egregious for enforcement 

purposes. The agency may argue that a violation is exceptional and deserves an enhanced 

penalty by explaining its decision before the Judge and supporting the explanation with 

evidence.” Id. at 18, *14. As explained below, the Court has concluded that this violation was 

“especially egregious.”
9

Within Part C, the majority, in subpart C, sets forth their “Guidance to Judges on Special 

Assessments.” Solar Sources, 42 FMSHRC ___, slip op. at 17, 2020 WL 1890528 at *12. 

Calling a Special Assessment “an especially large penalty” and “an extraordinary penalty” the 

majority states that MSHA “must justify its litigation proposal with evidence on each of the 

penalty factors.” Id. at 17, *13. The second part of the guidance from the majority is that the 

judge “must base a decision only upon a complete review of the evidence pertaining to each of 

the penalty factors, a weighing of those factors in the context of the facts, and a final resolution 

based only upon such careful and fully explained review.” Id. at 18, *13. The Court will, of 

course, do just that. 7

Given, at least in the Court’s estimation, the lengthy narrative provided by MSHA it was 

surprising to read that the majority has determined that “[n]o significance attaches to MSHA's 

penalty which is specially proposed for litigation purposes.” Id. at 18, *14. While the majority 

then adds that “[t]he agency may argue that a violation is exceptional and deserves an enhanced 

penalty by explaining its decision before the Judge and supporting the explanation with 

evidence,” apparently the agency’s explication for the enhanced penalty in its three page 

narrative is outside of the Court’s consideration. Id. 

Of course, the Court fully understands that the reasons presented in the narrative must be 

backed up by evidence from the hearing, but this is true in any civil penalty proceeding, under 

a regular or Special Assessment. 

II. The Court’s Decision Upon Remand addressing the remaining statutory factors and its 

reassessment of a civil penalty 

Solar Sources’ petition for discretionary review is of a limited nature in that its challenge 

was that the Court “erred in assessing the penalty because [the Court] failed to make adequate 

findings for each of the penalty criteria in section 110(i), 30 U.S.C. §820(i) of the Mine Act as 

part of [the Court’s] analysis.” Solar Sources, 42 FMSHRC ___, slip op. at 1, 2020 WL 

1890528 at *1. That the Court’s reading of the limited subject matter for this remand is correct 

was confirmed in the very next sentence from the Commission majority’s opinion which stated 

“we vacate the Judge’s penalty assessment and remand the case to the Judge to complete his 

penalty criteria findings and reassess a penalty.” Id. at 1-2, *1. (emphasis added).

Thus the Commission did not disturb, nor did Solar Sources’ petition for discretionary 

review seek to reverse, this Court’s determinations that the violation was significant and 

substantial, the result of high negligence, and an unwarrantable failure to comply with the 

safety standard. 

 7 Part D from the majority opinion, covering pages 18 through 21 is not addressed in this 

Decision Upon Remand, as Part D speaks only to the majority’s view that “the concerns in the 

dissenting opinions [of Commissioners Traynor and Jordan] are misplaced.” Id.at 18.
10

Although the majority also noted that Judges are accorded broad discretion to assess

civil penalties, it added that their decisions must reflect proper consideration of the section

110(i) penalty criteria.8 Thus, in the context of its penalty determination, the Court must do 

two things: fully consider each of the statutory criteria and adequately explain the basis for the 

penalty assessed. Id. The majority then added that such an adequate explanation is to include, 

“when appropriate, how the penalty criteria interplay 9with one another.” Id. at 4-5, *4

(emphasis added). Elaborating about this interplay, the majority stated this may include 

“analyzing any relationships between the [penalty] criteria that may affect the ultimate penalty 

assessment. Thus, for example, a discussion of the size of a mine and the frequency of

violations in juxtaposition may be informative to the reasoning behind a penalty evaluation 

more fully than looking at each criterion as a distinct element of a penalty.” Id. at 5. 

Removing any doubt, the majority then added that the Judge has to “fully consider[ ] the 

penalty criteria individually and in relationship to one another.” Id. at 6, *5.

FINDINGS OF FACT UPON REMAND AND DISCUSSION

A. The Court’s Findings regarding the statutory penalty factors.

To begin, so that it is not forgotten in the ensuing discussion of the penalty 

factors which the Court has been directed to address upon this remand, the Court wants 

to take a moment to refresh the readers’ recollection of the seriousness of this 

violation, and the Court’s attendant findings that the gravity was found as “occurred.” 

The event resulted in significant injuries to the truck driver, Shawn Standish, in his 

leap for life from the immense dump truck, just before it toppled over the collapsed 

berm and careened down the slope. 

The majority has acknowledged that the Court’s analysis discussed the penalty 

factors of negligence and gravity, but in contrast it stated that “the Judge's decision was 

totally deficient of any evaluation of ‘the operator's history of previous violations’ and 

‘the demonstrated good faith of the [operator] charged in attempting to achieve rapid 

compliance after notification of a violation’” Id. at 7, *5.

 8 Setting apart Special Assessments from the procedure employed when the Secretary utilizes its 

proposed regular assessments, the majority stated that in the latter instances, the judge must 

provide an explanation if the penalty assessment substantially diverges from the Secretary's. 

Review in such regular assessment instances and such review is conducted under an abuse of 

discretion standard. Solar Sources, 42 FMSHRC ___, slip op. at 4, 2020 WL 1890528 at *3. 

9 The idea put forth by the majority of considering how the “penalty criteria interplay with one 

another,” which they alternatively describe as the “juxtaposition” between the penalty criteria, is 

new. The Court was unable to find a single Commission decision employing either of those 

terms in connection with penalty determinations. 
11

While not in any way challenging the majority’s expressions regarding a judge’s analysis 

of the penalty factors and the penalty advocated by the Secretary where a Special Assessment is

involved, for the sake of completeness it is noted that the Special Assessment standard provides, 

in relevant part that: 

“MSHA may elect to waive the regular assessment under § 100.3 if it determines that 

conditions warrant a special assessment. [ ] When MSHA determines that a special assessment is 

appropriate, the proposed penalty will be based on the six criteria set forth in § 100.3(a). All 

findings shall be in narrative form.” 30 C.F.R. §100.5, (a), (b). (emphasis added). 

Special Assessments have been around for a long time, in fact, for some forty-two (42) 

years. See, for e.g., Coal Employment Project v. Sec’y of Labor, 889 F.2d 1127, 1129 (“The 

special assessment, which was also originally established in 1978, 43 Fed.Reg. 23,516, 23,519, 

and somewhat modified in 1982, 47 Fed.Reg. 22,292, 22,296, is designed for particularly serious 

or egregious violations.”). See also, Southern Ohio Coal, 4 FMSHRC 1458 (Aug. 1982).

Recognizing that the majority was likely speaking generically, their remark that Special 

Assessments do not “consider[ ] the specific facts of the violation,” at least for this case, does not 

apply. Id. at 14, *11. (emphasis added). The Secretary’s Narrative Findings for a Special 

Assessment is nearly three pages long and, at least as the Court reads the document, it does speak 

to the specific facts. Pet. for Assessment of Civil Penalties at 7-9, which is part of the official 

record. This determination is that, based on the official record, MSHA complied with its own 

standard in that it elected to waive the regular assessment upon determining that a Special 

Assessment was warranted and that its proposed penalty was based on the six criteria set forth in 

§ 100.3(a). Id. at 7.10 However, it is true, as reflected below, that apart from negligence and 

gravity, MSHA made only brief reference to the other criteria before its statement that “[b]ased 

on the six criteria set forth in 30 CFR 100.3(a) and the information available to the Office of 

Assessments,” it arrived at the proposed penalties in this case.

It is also worthy to call attention to the full text of the Secretary’s lengthy Narrative 

Findings for Special Assessment, 11 which provided:

Under 30 CFR 100.5, the Mine Safety and Health Administration may elect to 

waive the regular assessment formula contained in 30 CFR 100.3 in determining 

the civil penalty for a violation of the Federal Mine Safety and Health Act of 

 10 This observation is not in conflict with the majority’s expressions since they noted that under 

section 110(i) of the Mine Act, “the Commission independently assesses a civil penalty de novo 

based on findings of fact and consideration of six penalty factors.” Solar Sources, 42 FMSHRC 

___, slip op. at 3, 2020 WL 1890528 at *3 (emphasis in original).

11 The text of the Special Assessment Narrative was not included in the Majority’s Decision.
12

1977, if it deems that conditions concerning the violation warrant. MSHA 

decided to propose a special assessment in accordance with 30 CFR 100.5 for 

the following violations because the violations resulted from the operator’s 

unwarrantable failure to comply with mandatory standards and resulted 

from the operator’s high negligence. The combination of these factors 

indicated the need for greater deterrence than the regular assessment penalty 

would provide.

MSHA carefully evaluated the conditions cited and the inspector’s relevant 

information and evaluation. The proposed penalty reflects the results of an 

appraisal of all the facts presented. 

On June 30, 2016, MSHA issued Section 104(d)(1) Citation 9102704 at the 

Shamrock Mine. Solar Sources, Inc. was cited for a violation of 30 CFR 

77.1605(1) because berms, bumper blocks, safety hooks or similar means were 

not adequately constructed in order to prevent overtravel and overturning at 

dumping locations. The gravity of the violation was considered serious and the 

violation contributed to the cause of a power haulage accident. A mobile 

equipment operator received serious injuries as he jumped from a haul truck that 

overtraveled and overturned at a dumping location. The violation resulted from 

the operator's high degree of negligence. A power haulage accident occurred 

which resulted in serious injuries to an equipment operator as he jumped to 

dismount an overturning haul truck. The haul truck operator was attempting to 

dump a load of slurry material at the west end of the gob dump at the 001 pit. The 

haul truck's rear tires overtraveled the berm and began to sink causing the haul 

truck to overturn. The truck traveled down an approximate 42 foot embankment 

and came to rest upside down in a slurry pit filled with mud and water estimated 

to be approximately 30 feet in depth. As the driver realized that the haul truck 

was overturning, he jumped a vertical distance of approximately 13 feet as a last 

resort to escape the vehicle before it overturned. The truck driver suffered broken 

heels on both feet and a broken ankle as a result of the accident. The material 

used to construct the dumping point berm was described as "gob material" 

consisting of high moisture content which could not be adequately compacted. 

The berm was not structurally sufficient to support the weight of the loaded haul 

truck. The truck subsequently overtraveled the berm and overturned. Berms are 

required to be constructed to a minimum height equal to the center axle height of 

the heavy equipment being used at the facility. The height of the berm was 

approximately 26 inches and the center axle height of the haul truck was 39 

inches. The berm height was approximately 13 inches lower than the required 

minimum height. Management knew or should have known that the berm 

construction was inadequate and made no effort to correct the hazardous 
13

condition. The dump area had been examined within one hour prior to the 

accident and no hazardous conditions were noted in the examination records. On 

the same day, MSHA issued Section 104(d)(1) Order 9102705 at the same mine. 

The operator was cited for a violation of 30 CFR 77.1713(a) because the operator 

failed to conduct an adequate on-shift examination of the gob dump area at the 

001 pit. The gravity of the violation was considered serious and the violation 

contributed to the cause of a power haulage accident. A mobile equipment 

operator received serious injuries as he jumped from a haul truck that overtraveled 

and overturned at a dumping location. The cited standard is identified as a 

"Rules to Live By" standard. These are the safety and health standards most 

frequently cited during fatal accident investigations; the conditions or 

practices cited as violations of these standards are those that most commonly 

contribute to fatalities in the mining industry. The mining industry has been 

made aware of these standards and operators should have heightened 

awareness in identifying and correcting associated hazardous conditions. The 

violation resulted from the operator's high degree of negligence. A power 

haulage accident occurred which resulted in serious injuries to a haul truck 

driver as he jumped to dismount an overturning haul truck at the gob dump 

area. Several hazards were identified and cited relative to the construction of the 

berm at the dump location and a determination was made that the inadequate 

berm construction contributed to the accident. The on-shift examination of the 

dump area had been conducted within one hour prior to the accident and no 

hazardous conditions were noted in the examination records. Management failed 

to identify and correct obvious hazardous conditions related to the berm 

construction and allowed dumping operations to continue while exposing 

miners to the uncorrected hazards.

The violations were cited during an investigation of a serious power haulage 

accident that occurred at the above mine on June 29, 2016. The number of 

previously assessed violations and inspection days at this mine, and the size of the 

mine and company appear on the attached Proposed Assessment. In accordance 

with 30 CFR 100.3(h), MSHA presumes that the operator's ability to continue in

business will not be affected by the assessment of a civil penalty.” The Secretary 

then continued that “[b]ased on the six criteria set forth in 30 CFR 100.3(a) and 

the information available to the Office of Assessments,” it proposed a civil 

penalty in the amount of $68,300.00 for each of the two violations alleged in this 

docket, with No. 9102704 being a (d)(1) citation and No. 9102705 a (d)(1) order. 

Pet. for Assessment of Civil Penalties at 7-9 (emphasis added).
14

The Majority expressed that “[p]roviding a rationale for a special assessment is essential 

to providing more clarity to the Judge, and to the Commission on review, and the Secretary is 

obliged to provide more than an opaque process and a secret theory of the case.” Majority 

Remand at 9, n. 13. While the majority has identified this Court’s shortcoming in not detailing 

consideration of the penalty factors other than negligence and gravity, and for which the Court 

takes ownership, it respectfully disagrees that the Secretary had, in any manner, a “secret theory 

of the case.” Both the testimony and exhibits at the hearing, as discussed at length in the Court’s 

35 page Decision and Order, and the full text of the Special Assessment Narrative, as quoted 

next above, refute that – clearly, from the Special Assessment’s words, there was no “secret 

theory.” 

As reflected above, the Special Assessment explains that its genesis was the allegation 

that the operator failed to have an adequately constructed berm to prevent overtravel and 

overturning at dumping locations. This of course was found to be the fact in the Court’s March 

29, 2018 decision. Regarding the penalty factors and beginning with the gravity, the Narrative 

Findings inform that the gravity was considered to be serious and that the violation contributed 

to the cause of a power haulage accident. 

The Narrative continues that the “mobile equipment operator received serious injuries as 

he jumped from a haul truck that overtraveled and overturned at a dumping location.” Pet. for 

Assessment of Civil Penalties at 7. This too was found by the Court as irrefutable. The narrative 

then addressed the factor of negligence, describing the violation as “result[ing] from the 

operator's high degree of negligence.” Id.

No obscure theory was presented. The Narrative detailed the basis of its claim, expressly 

stating that “[t]he material used to construct the dumping point berm was described as ‘gob 

material’ consisting of high moisture content which could not be adequately compacted. The 

berm was not structurally sufficient to support the weight of the loaded haul truck.” Id. at 7-8. 

It would be difficult to be more plain about the basis for the Special Assessment and the theory 

behind it.12 

Further, the Narrative clearly articulates its view that “[m]anagement knew or should 

have known that the berm construction was inadequate and made no effort to correct the 

hazardous condition.”13 Id. at 8. 

 12 Although the testimony at hearing refined the deficiency of the berm by explaining that it was 

the failure to maintain the berm in the face of the deleterious effect of dumping of the slurry, 

such details about the timing of the deterioration do not undermine the essential charge. 

13 While at the time the Narrative was drafted, MSHA believed that “[t]he dump area had been 

examined within one hour prior to the accident and no hazardous conditions were noted in the 

examination records,” as explained in this Decision Upon Remand, there was a very legitimate 
15

Additionally articulating the basis for moving forward as a Special Assessment, the 

narrative noted that: 

[t]he cited standard is identified as a "Rules to Live By" standard. These are the 

safety and health standards most frequently cited during fatal accident 

investigations; the conditions or practices cited as violations of these standards are 

those that most commonly contribute to fatalities in the mining industry. The 

mining industry has been made aware of these standards and operators should 

have heightened awareness in identifying and correcting associated hazardous 

conditions.

Id. (emphasis added).

It is true, as the Majority has noted, MSHA’s consideration of the other penalty factors 

was quite brief. However, in that regard, the Narrative did identify the mine’s violation history 

and its size, stating, “[t]he number of previously assessed violations and inspection days at this 

mine, and the size of the mine and company appear on the attached Proposed Assessment.” Id. 

at 9. Further, MSHA presumed, and correctly as the burden is on the mine operator, that “the 

operator's ability to continue in business will not be affected by the assessment of a civil 

penalty.” Id. If one is keeping count, that means that, except for the “good faith” factor, MSHA 

identified the basis for each penalty factor, and augmented its rationale both with detail and by 

highlighting that the alleged violation involved one of the agency’s Rules to Live By. 

Accordingly, at least this Court does not view the Narrative as an impenetrable opaque process. 

Nor is it reasonable in the early stage of the assessment process for the Secretary to provide 

chapter and verse all of the reasons for its determination to specially assess violations. Any 

reasonable mine operator reading the Special Assessment would not be in the dark about the 

Secretary’s grounds for the Assessment nor, for what is the Secretary’s prerogative, the decision 

to issue a Special Assessment because of those grounds. That a mine operator may not like that 

decision is another matter. 

Respondent, Solar Sources, did contend, and the majority has so found, that the Court 

insufficiently discussed some of the penalty factors. The Court now remedies this deficiency, at 

least as to the identified penalty factors other than negligence and gravity. 

It’s no understatement to say that the parties spent only a very small fraction of the two 

day hearing on the penalty factors involving good faith, history, size, and ability to continue in 

business. Instead the wealth of the attention at the hearing, as well as that given in the 

post-hearing briefs, were all about contentions regarding the issues relating to the fact of 

 

basis for that belief, and as also explained in this Decision, had the Secretary moved to amend 

the section 104(d) order, Order No. 9102705, to conform to the evidence, based on the credible 

evidence of record from Inspector Noel, that failure to conduct an adequate examination would 

almost certainly have been upheld. 
16

violation, whether there was an unwarrantable failure, whether the violation was significant and 

substantial and whether it should’ve been specially assessed. The Court fully understands that 

speaking for the moment only to those former factors of good faith, history, size, and ability to 

continue in business, the Secretary, as with each factor, has the burden of proof.14 

The Court has reviewed Commission decisions referencing the statutory penalty criteria. 

For each penalty factor, this decision upon remand will discuss the pertinent Commission 

decisions for a given factor and then apply that information to the Court’s findings of fact and 

conclusions therefrom in light of the record evidence and its section 110(i) findings.

The Court first takes note that the majority, in referring to the its statement that the Court 

gave “short shrift” to consideration of some of the statutory criteria, expressed its own view 

about two of the criteria: the operator's history of previous violations and the demonstrated good 

faith of the operator charged in attempting to achieve rapid compliance after notification of a 

violation. 

Good faith

The Commission’s decisions regarding the penalty criterion of the operator’s good faith in 

attempting to achieve rapid compliance. 

In its review of Commission cases which refer to the “good faith” factor, the Court has 

found some guidance, although none of it comes to the aid of Solar Sources to warrant a penalty 

reduction in this case. 

In U.S. Steel, the Commission did not agree with the judge’s conclusion that the mine’s 

actions in sending a less experienced attorney to abate the violation negated the mine’s claim of 

good faith. Instead, the Commission, expressed that “good faith” should be judged in terms of 

objective attempts to achieve rapid compliance after notification of a violation. It also noted that

the parties stipulated that U.S. Steel demonstrated good faith in abating the citation at issue 

within the time provided. U.S. Steel v. Sec’y of Labor, 6 FMSHRC 1423, 1434 (June 1984). 

In Madison Branch Management, the Commission acknowledged that in determining 

whether an operator had demonstrated good faith in attempting to achieve rapid compliance, it 

examines “the scope of the citations and the actions required for abatement.” Madison Branch 

Management v. Sec’y of Labor, 17 FMSHRC 859, 865–67 (June 1995).

 14 Of course, the Secretary has the burden to establish the fact of violation and all related penalty 

factors associated with the alleged violations. But, at this stage, this case is well beyond those 

issues as, per the remand, the Court is only addressing good faith, history, size, and ability to 

continue in business.
17

So too, while the Commission recognized that where an operator demonstrates “much 

more than ordinary good faith,” a judge may give much more weight than normal to the good 

faith criteria in assessing a penalty, Coal River Mining, LLC, 32 FMSHRC 82, 2010 WL 

594840, at *11–12 (Feb. 2010) (emphasis added). In Coal River, the judge in that case found 

that the operator did act quickly to do more than necessary to abate the violation in question. 

However, the Court has determined that such a nod to an operator’s actions do not apply 

in this Solar Sources matter, where the subject matter of the citation, here the collapsed berm, 

vanished in a rubble down the dump site slope. As explained below, that is not the sole basis for 

the Court’s determination that the operator is due no penalty reduction on that account. 

In Hidden Splendor Resources, former Commissioner Cohen, in his concurring opinion, 

noted that the foreman ordered miners out of the mine, and did not wait until receiving a citation 

to do so. Hidden Splendor Resources, Inc., 36 FMSHRC 3099, 3108–09 (Dec. 2014). Thus, the 

foreman took prompt action to avert a hazard. The Court notes that no such like action occurred 

here with Solar Sources; no hazard was averted.

In Sunny Ridge Mining, speaking to whether the operator “demonstrated good 

faith ... in attempting to achieve rapid compliance after notification of [the] violation,” 

[the Commission remarked that] the record merely indicates that the violation was abated 

approximately 4 hours after the order was issued when Sunny Ridge “removed the height 

of the spoil material.” ... Accordingly, [the Commission found] that Sunny Ridge 

demonstrated neither good faith nor bad faith in abating the violation. Sunny Ridge 

Mining Company, Inc., 19 FMSHRC 254, 263 (Feb. 1997). Thus, Sunny Ridge is 

indicative that even where abatement actions occur, good faith does not automatically 

inure to the benefit of an operator. 

Discussion of the good faith factor

Good faith contentions raised by the Respondent

Respondent’s Counsel contended at the hearing that “the changes that [the Respondent]

made in operations and efforts to prevent a reoccurrence would factor in when [the Court makes 

its] final penalty assessment. And we’re happy to argue that in a brief.” Tr. 347. The Court 

sought clarification, inquiring, “under good faith?” Respondent’s Counsel responded, “Yes. 

And the expense they've taken to go to a different system.” Tr. 348. Respondent’s Counsel then 

added, “And I've also had cases where when an operator goes to expense and does changes, that 

that factors into the penalty as well. There’s a number of cases on that.”15 Tr. 349.

 15 The Secretary’s Counsel did not agree with the Respondent’s view of the scope of good faith, 

believing that it applies to “efforts made before the citations were issued.” Tr. 349.
18

Respondent’s Counsel then asked of his witness the following leading question: 

“But basically, what you've done, Mr. Atkinson, you-all have designed a system now that 

prevents what happened here of a berm collapse from occurring?” to which the witness 

answered, “Yeah.” Tr. 349.

Later, the Court reminded Respondent’s Counsel of his assertion that he knew of cases 

that supported his view of good faith abatement, noting at the hearing that he “[al]luded to the 

scope that I can consider in terms of good faith abatement. [The Court then added] “[b]e sure 

that you highlight the cases. You weren't sure if they were administrative law judge or 

commission level cases. And that was in the context of what Mr. Atkinson did in terms of 

revising the berm scenario, you know, the diagram, et cetera, okay? Highlight that in your brief 

so I can consider that and look up those cases myself.” Tr. 367. Respondent’s Counsel 

answered, “Thank you, sir.” Id.

16 

The Respondent never provided any cases at hearing, nor in its post-hearing briefs, 

although during the Court’s conference call post the majority’s remand decision, Respondent’s 

counsel tried to cite a case, at a time more than two years after its post-hearing briefs were 

submitted. See n.16, infra. 

Good faith factor contentions raised by the Secretary of Labor 

In contrast, at the hearing the Secretary’s Counsel expressed a different view about this 

penalty factor, stating she “believe[d] good faith has to go to efforts made before the citations 

were issued.” Tr. 348. That, the Court believes, cannot be true, as the applicable words for the 

factor provide that the demonstrated good faith of the operator charged pertains to attempting to 

achieve rapid compliance after notification of a violation. While that contention is therefore 

rejected, the Court still stands by its conclusion that whatever efforts were made to address future 

berm collapses they are not applicable to this violation. The subject berm, having collapsed and 

shedded down the slope, it was not possible to achieve rapid compliance for it as it was nonrecoverable. Beyond that, as explained in this decision, even under a more generous 

interpretation of this factor, the Respondent’s response to the violation was utterly devoid of 

good faith. 

 16 The Court held a recorded conference call with the parties on Wednesday, April 22, 2020 for 

the purpose of making sure that it had not overlooked any contentions made during the hearing 

or in the parties’ post-hearing briefs regarding the four penalty factors the majority stated were 

insufficiently addressed in the Court’s initial decision. Counsel for Respondent confirmed 

during that conference call that in fact he never did identify such cases during the hearing, nor 

cite to such cases in his post-hearing briefs. However, he did try to interject such a case citation 

during the call. The Court would not accept this attempt to supplement his brief as the 

opportunity had long since passed. The conference call was transcribed and has been made a 

part of the official record. 
19

The Secretary’s Post-Hearing Brief

The Secretary said virtually nothing about good faith in its post-hearing brief. 

Instead the Secretary referred to the Narrative Findings for the Special Assessment. 

The same is true of the Secretary’s Reply Brief; the Secretary did not speak to that factor. 

However, as described infra, there was very probative testimony adduced by 

Respondent’s own witness on this subject.

Respondent’s Contentions regarding good faith during the hearing. 

As mentioned above, at the hearing, Respondent’s Counsel remarked on the issue 

of good faith that he “believe[d] the changes that [the mine] made in operations and 

efforts to prevent a reoccurrence would factor in when you do your final penalty 

assessment. And we're happy to argue that in a brief.” Tr. 347. Adding that he was 

speaking on the topic of good faith, he affirmed, “Yes. [and then added][a]nd the expense 

they've taken to go to a different system. I mean, we can obviously put something in a 

brief ...” Tr. 348.17 Respondent’s Counsel continued that he has “had cases where when 

an operator goes to expense and does changes, that that factors into the penalty as well. 

There's a number of cases on that.”18 Id. 

Respondent’s contentions regarding good faith in its post-hearing briefs

Respondent notes that Section 100.3(d) states that “[m]itigating circumstances may 

include, but are not limited to, actions which an operator has taken to prevent, correct, or limit 

exposure to mine hazards.” Resp’t Br. at 27. Respondent contends that there were mitigating 

circumstances, in that “it has taken steps to prevent another such accident from happening.” Id. 

As set forth below, the Court notes that, when taken in context, that is an incomplete recounting 

of the actions taken by the Respondent. Respondent’s Brief continued: 

As explained by Mr. Atkinson, Solar Sources completely redesigned how it 

dumped gob and slurry into the pit after this accident and submitted a modified 

 17 As alluded to in the preceding footnote, one case was cited during the April 22nd conference 

call and the Court rejected the attempt to supplement Respondent’s briefs, years later, with that 

cite. Beyond that, no case, in the Court’s estimation, can resuscitate the Respondent’s claim of 

good faith because the facts from Respondent’s own witness refute it. 

18 Respondent’s Counsel then asked of his witness the following extremely leading question: 

“But basically, what you've done, Mr. Atkinson, you-all have designed a system now that 

prevents what happened here of a berm collapse from occurring?” To that, the witness only 

answered, “Yeah.” Tr. 349. The witness’s answer, while correct as to the way the question was 

posed, presents a very inaccurate portrayal of the circumstances surrounding Solar Sources postaccident actions. More will be said about this infra as revealed through the testimony of

Respondent’s safety director. 
20

ground control plan. There is now a chute with a berm and area just below it that 

is also ‘bermed off.’ Tr., Vol I, p. 344-347; see also R-22. Once material 

accumulates, a dozer pushes the material into the pit. Id. at 345. This keeps the 

truck operator behind two berms, some 20 feet away from the edge of the bank, 

and also leave a much larger and more stable base that will not collapse as 

occurred here. Id. at 345; see also R-22, modified Ground Control Plan.

Id. Respondent also stated that “the record establishes the mine had instituted a new 

Ground Control Plan that no longer has trucks dumping near the edge of a pit to prevent a 

reoccurrence of this event and should be considered in setting a penalty.” Resp’t Br. at 

35. The Respondent’s post-hearing reply brief added nothing to the subject of good faith. 

The Court’s Discussion and findings on the subject of the Good Faith factor19

The Court takes note that the “good faith” factor too often is truncated to those 

two words. Yet it must be remembered that, in full, the text of the statutory provision is 

directed toward a particular demonstration of good faith, namely the demonstrated good 

faith of the operator charged in attempting to achieve rapid compliance after notification 

of a violation. 30 U.S.C. §820(i), (emphasis added).

The Court is of the view that, both the facts in this matter as well as the 

Commission cases cited above illustrate, by way of counterexamples, the Respondent is 

entitled to no reduction in the penalty imposed because, to put it simply, there was no 

good faith in attempting to achieve rapid compliance under this penalty criterion. After 

all, the berm vanished upon its collapse, taking the huge truck along with it. No rapid 

compliance was thereafter available. 

As the berm no longer existed, a result brought about by the operator’s failure to 

have been vigilant about its condition and by its failure to properly maintain it, there 

could be no rapid compliance to correct the violation. 

 19 Pertaining to the good faith factor, the majority stated: “The Judge also erred in stating that 

the parties had entered stipulations with respect to two penalty factors. 40 FMSHRC at 495 n.15 

("[f]rom the parties' stipulations, it is noted that the factors of good faith and ability to continue 

in business did not impact the penalty determination."). It is clear from the record that they had 

not entered into such stipulations. The parties’ joint stipulations have no reference at all to either 

good faith abatement or the impact of a $68,300 penalty.” Solar Sources, 42 FMSHRC ___, slip 

op. at 8, 2020 WL 1890528 at *6. The Court erred in its remark that there were stipulations on 

those two factors. There were not such stipulations. However, regarding one of those two 

factors, the Commission then added that “Solar Sources did not contend that payment of the 

penalty would affect its ability to stay in business,” leaving the need to further address “the 

demonstrated good faith of the [operator] charged in attempting to achieve rapid compliance 

after notification of a violation.” Id. at 7 and n.10. 
21

Working very much against a finding of crediting Solar Sources’ claim of good 

faith, in the Court’s view, is Lehigh Anthracite Coal, LLC. There, the operator took 

proactive steps prior to MSHA being notified. In the case before this Court, such like 

action would have involved recognition of the deteriorating effects on the berm’s 

integrity by the process of dumping the soupy slurry material. After all, management 

knew that their berms required constant attention. The Court notes the testimony of 

MSHA Inspector Jason Noel at Tr. 43, 135, 143, 144, 145, 146, 149, 189, and pit 

supervisor Lutgring’s admission that berms need maintenance after being constructed, Tr. 

396 and his acknowledgement that he told Inspector Noel that “[b]erms are a constant 

problem with these dumps.” Tr. 397 (emphasis added). By comparison, no proactive 

steps occurred, nor could there have been any actions undertaken after the event, as the 

berm, having completely collapsed, no longer existed. Cf. Lehigh Anthracite Coal, 

LLC, 40 FMSHRC 273, 284 n.14 (Apr. 2018).

Commission level decisions support the Court’s determination that good faith, at 

least under the use of that phrase in the Mine Act, was not present in this matter. Again, 

with the berm gone, taking the truck along with it, it was too late for any such attempt to 

achieve rapid compliance.

Although, in the Court’s view, this is sufficient to find that no reduction in the 

penalty is warranted in this instance on good faith grounds, the testimony of the 

Respondent’s own witness further demonstrates the correctness of this conclusion. 

Solar Sources Safety Director, Steven Fields, testified, regarding what changes occurred 

following the incident, that “MSHA made us submit a ground control plan or revised 

ground control plan. ...that's what we had to do. We had to revise that so it basically 

put[] at least 20-foot or minimum 20-foot between the berm and then another berm and 

then the spoil bank.” Tr. 516-517 (emphasis added). Although his answer was clear (and 

unhelpful to any claim of good faith), Counsel for Respondent continued, “[t]hen why 

would you -- why did you do that?” Id. Fields repeated, “They made us do it.” Id.

(emphasis added). With another self-inflicted wound, Counsel asked, “[d]o you believe 

personally that it’s a better system?” Id. (emphasis added). “Yes,” Fields responded with 

a thud. Id.

Violation History

This penalty factor provides “[i]n assessing civil monetary penalties, the 

Commission shall consider the operator’s history of previous violations.” 30 U.S.C. 

§820(i).

The majority has expressed that the “record contains highly relevant evidence regarding 

the operator's violation history. Yet, the Judge did not engage in any analysis and did not make 

any finding on the possible significance of such evidence. The Judge merely references 
22

Government Exhibit P-2.”20 Solar Sources, 42 FMSHRC ___, slip op. at 7, 2020 WL 1890528 

at *6. 

In this respect, that is, the Respondent’s violation history, the majority did not disguise 

their view that a history as the Respondent’s here: 

may be highly relevant to incentivizing compliance [and that at least in this case] 

it is error to ignore the history of violations in imposing a penalty merely by 

noting an exhibit in the record.... [and that] an operator's history of few violations 

is relevant in considering the assessment of higher penalties. 

Id. at 7, n. 9, *6, n.9. And so, the majority stated this, i.e. the significance of the history 

of violations, is a question of fact for the Court to resolve. 

Commission cases regarding the violation history factor

The Commission has stated that it is appropriate to broadly consider an operator’s general 

history of all violations: 

the language of section 110(i) does not limit the scope of history of previous 

violations to similar cases. ...‘section 110(i) requires the judge to consider the 

operator's general history of previous violations as a separate component when 

assessing a civil penalty. Past violations of all safety and health standards are 

considered for this component.

Secretary of Labor and United Mine Workers of America v. Jim Walter Resources, Inc., 18 

FMSHRC 552, 556–57, (citing Peabody Coal Co., 14 FMSHRC 1258, 1264 (Aug. 

1992))(“Peabody”)(emphasis in original). Thus, in a case involving interference with 

walkaround rights, the operator’s history is not only to include other violations involving

discrimination but the mine’s general history of violations is to be included, as well.21 In the 

 20 Even as to that exhibit, P-2, the majority commented that “[i]ronically, that exhibit reveals a 

positive compliance record in that the operator had not had a berm violation in six years and only 

two such violations in its entire history. It did not have any unwarrantable failures in the 15 

months preceding the citation. In fact, the operator had received only 19 citations under section 

104(a) of the Mine Act, 30 U.S.C. § 814(a), for which it was penalized a total of $13,276.” Solar 

Sources, 42 FMSHRC ___, slip op. at 7, n.8, 2020 WL 1890528 at *6, n. 8. In that regard, the 

majority stated that an operator’s past history of significant violations should be considered in 

considering assessing higher penalties. ...[and that] [b]y parity of reasoning, an operator's history 

of few violations is relevant in considering the assessment of higher penalties.” Id. at 7-8, n.9, 

*6, n.9.

21 The Commission did seem to place a partial limitation on the appropriate breadth of this 

criterion, remarking that, “[t]he appropriate weight, if any, to be attached by the judge to older 
23

same case, the Commission also inferentially remarked on the appropriateness of considering the 

operator's general history of previous violations, observing that the “ judge failed to consider the 

operator's general history of previous violations submitted into evidence by the Secretary as the 

Assessed Violation History Report.” Id. at *557.

The Commission has also indicated that it wants more particularity from a judge when 

evaluating this factor. In American Coal (2016), it was critical of summarily addressing a 

violation history. In its remand, the Commission instructed that the Judge must make a finding 

as to the history of violations pertaining to the cited violation. The American Coal Co., 38 

FMSHRC 1987, 1997–98. In that case, the Commission also expressed that a review of the 

general history of violations is appropriate, and if the judge had not considered a specific 

violation history, it was in that case harmless error. Thus, the mine’s general history is to be 

considered, “not just to violations of a kind similar to the one giving rise to the penalty 

assessment.” Jim Walter Res., Inc., 28 FMSHRC 983, 995 (Dec. 2006). 

Consistent with the majority’s overall language about the judge’s role in assessing a 

penalty, then Chairman Commissioner Jordan and former Commissioner Nakamura expressed 

that although Wade challenged whether the Secretary appropriately calculated its violation 

history, it was unnecessary to address that contention as the Administrative Law Judge made an 

independent determination of the penalty which was supported by substantial evidence and 

within the judge’s discretion. Wade Sand & Gravel, 37 FMSHRC 1874, 1881–83 (Sept. 2015). 

Thus the key upon review is whether the judge determined the penalty pursuant to section 110(i) 

of the Mine Act, independently of the Secretary's Part 100 regulations. In favoring a wider 

aperture of a mine’s violation history, the concurrence in Wade took note of:

the deterrent purpose behind the Mine Act's penalty procedures. The D.C. 

Circuit's discussion of the legislative history behind this criterion in Coal 

Employment Project v. Dole, 889 F.2d 1127 (D.C. Cir. 1989), highlights this 

point. ... [observing that] “[t]he court stated that Congress “was intent on 

assuring that the civil penalties provide an effective deterrent against offenders 

with records of past violations” and concluded that the Mine Act and legislative 

history required MSHA to consider all violations under the history of violations 

criterion.

Id. at 1133, 1138. (emphasis added).

In its Cantera Green decision, a case in which a mine did not have a recent history of 

similar violations, and had 18 violations in the previous two years, consistent with the cases cited 

above, the Commission therein noted that “the language of section 110(i) does not limit the 

scope of history of previous violations to similar cases.” 22 FMSHRC 616, 623–24 (May 2000) 

 

violations should be based on relevancy.” Id.at *557. The Court addresses the relevancy of the 

Respondent’s other berm violations in this Remand Decision. 
24

(citing Sec’y of Labor on behalf of Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 552, 557 

(Apr. 1996)). The Commission added that “section 110(i) requires the judge to consider the

operator's general history of previous violations as a separate component when assessing a civil 

penalty. Past violations of all safety and health standards are considered for this component.” 

Id. at 623 (citing Peabody Coal Co., 14 FMSHRC 1258, 1264 (Aug. 1992)) (emphasis in 

original). The Commission expressed that a judge should evaluate whether that history was high, 

moderate, or low. Id. (citing Sec’y of Labor on behalf of Hannah v. Consolidation Coal Co., 20 

FMSHRC 1293, 1305, n.14 (Dec. 1998)).

Of relevance to this Solar Sources matter, the Commission expressed that a history of 

similar violations may demonstrate that the operator had prior knowledge of the specific safety or 

health standard cited. It rejected the argument that it amounted to an improper consideration of 

the history of violations by counting it twice -- once when considering the general history 

criterion and a second time in consideration of the negligence criterion -- explaining that such 

consideration was not improper or duplicative because the purpose of the two criteria are 

different. Peabody 14 FMSHRC 1258, at 1264, (Aug. 1992).

Hearing references to the Operator’s History of Violations.

Counsel for the Secretary referenced Ex. P 2, which is MSHA’s certified history of 

violations.22 Tr. 12. Respondent’s Counsel did not challenge the admissibility, nor the accuracy 

of Ex. P 2. Rather, Respondent pointed to Ex. P 2 in support of Solar Sources’ contention that its 

violation history should constitute a favorable element in any penalty determination. In that 

regard it noted that the Respondent had only four unwarrantables in its history. During the 

second day of the hearing, the Respondent revisited the violation history issue. Steven Troy 

Fields23, has been the Respondent’s safety director since 2008. Tr. 486. Asked about similar 

violations at the Shamrock Mine in the recent past, Fields responded there had not been any in 

the recent past. Tr. 498. However, there had been such similar violations in 2008 “and possibly, 

like, 2010, 12 or '11.” Id.

In the Respondent’s post hearing brief, though speaking in the context of whether there 

was an unwarrantable failure, the Respondent stated:

The purpose of evaluating the number of past violations is to determine the degree 

to which those violations have ‘engendered in the operator a heightened 

 22 Respondent’s attorney challenged that this violation was specially assessed, believing that it 

should not have been, in part because of the mine’s low violation history. Tr. 31- 32. Per the 

majority opinion, the Court’s consideration of the mine’s violation history is based on that 

history alone. That is to say, the Court does not, in considering that factor (or any of the penalty 

factors), weigh, in that evaluation, that the violation was specially assessed. 

23 Mr. Fields, during a portion of his career, had been an MSHA inspector. Tr. 486.
25

awareness of a serious . . . problem.’ San Juan Coal Co., 29 FMSHRC 125, 131 

(Mar. 2007), citing Mid-Continent Res., Inc., 16 FMSHRC 1226, 1232 (June

1994). ... [and] even if the Court should agree that the berm did not comply with 

[the] cited standard, there is no evidence that Solar Sources was on notice that 

greater efforts are necessary for compliance. There is no evidence of any berm 

violations in this operator's history, at least since 2010 or 2011. Tr. Vol. II, pp. 

498. Inspector Noel admitted he found no other berm citations in the mine's 

recent violation history. Tr., Vol. I, p. 272. 

Resp’t Br. at 29-30. Respondent added on this topic that “there is no excessive history of 

violations or repeated noncompliance with the cited standard. In fact, the only evidence of any 

berm violations occurred in 2008 and 2010-2011, according to the Director of Safety, Troy 

Fields. Tr., Vol. II, pp. 498-499.” Resp’t Br. at 34.

In Respondent’s post hearing reply brief, it essentially repeated its previous arguments on 

this factor, again with an eye toward its displeasure that the violation was specially assessed, 

remarking that:

[t]he Mine's Citation History, attached as the Secretary's Exhibit P-2 further 

establishes this citation should not have been specially assessed. In the 15 months 

prior to this citation, the mine had 19 104(a) citations assessed at a total of 

$13,276. There were no unwarrantable failures in that 15-month period; only nine 

citations were significant and substantial and six citations were assessed at the 

minimum $100 penalty. In fact, only two citations were assessed above $1,000. 

(Secretary Exhibit P-2).

Resp’t Reply Br. at 17. 

Discussion of the history of violations factor

There is no evidence of any berm violations in this operator's recent history, at least since 

2010 or 2011. Tr. Vol. II, pp. 498. Inspector Noel admitted that he found no other berm citations 

in the mine's recent violation history. Tr., Vol. I, p. 272. Resp’t Prehearing Br. at 29. Then, later 

in R’s Brief: “Third, there is no excessive history of violations or repeated noncompliance with 

the cited standard. In fact, the only evidence of any berm violations occurred in 2008 and 2010-

2011, according to the Director of Safety, Troy Fields. Tr., Vol. II, pp. 498-499.” Resp’t 

Prehearing Br. at 34. Depending how one defines “recent history,” one must bear in mind that 

the berm collapse here occurred in June 2016. Thus, while not recent, berm violations in 2010 

or 2011 are not ancient either. 

The Court has considered the testimonial evidence and the lone exhibit regarding this 

issue. Based on the record and the contentions, the Court finds that the Respondent’s violation 

history does not warrant a reduction in the penalty assessed for this violation. At most, any 
26

reduction should be minimal. There are a number of reasons for this. First, as Respondent 

admits and one of its witnesses acknowledged, the mine has in fact been cited for berm 

violations in the past. That there were no berm violations in the recent past is not a winning 

argument, at least to this Court. By having any berm violations in its history, and noting that 

those violations were not ancient by any means, the Respondent should not be awarded with a 

penalty reduction on that account. From that point on, with a witness for the Respondent 

stating that there had been such similar violations in “2008 and possibly, like, 2010, 12 or '11,” 

the Respondent was obligated to be vigilant to berm issues. Tr. at 498. Testimony of Steven 

Troy Fields, Respondent’s safety director since 2008. Such berm awareness should not have a 

de facto expiration date. Thus, the Court does not agree with the assertion that Solar Sources 

was not on notice that greater efforts were necessary for compliance, on the grounds that there 

was no evidence of any berm violations in this operator's history, at least since 2010 or 2011. 

Further, while the Respondent has noted that it has few unwarrantables in its history, one 

must recall that “unwarrantable failure is aggravated conduct constituting more than ordinary 

negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is 

characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” 

or a “serious lack of reasonable care.” Sec. v. Consol Pennsylvania Coal Co., 39 FMSHRC 

1893, 1908 (Oct. 2017). Thus, one does not effectively receive a violation history award by 

having few unwarrantables. They’re not supposed to happen and negligence itself is not 

tantamount to well-received conduct. Last, the Court has already found that there was an 

unwarrantable failure with this berm violation.

Just as the majority has emphasized that, while the Secretary’s violation history may look 

at a two year history, it’s up to the Court, in its role of being the first to independently consider 

any penalty factor, to decide on its own the appropriate range of a mine’s violation history. 

Further, in the Court’s view, given the extreme gravity and negligence involved, reducing the 

penalty on that basis, at least under these facts, would distort an appropriate penalty. Thus, per 

the majority’s view, the Court is considering the interrelationship between the mine’s violation 

history and the other penalty factors. In addition, the applicable provision, 30 U.S.C. §820(i) 

directs only that “the Commission shall consider” the operator’s history of previous violations. 

This does not mean that a history which has a modest or small number of violations necessitates 

a lower penalty. Id. (emphasis added). The Court has considered the operator’s violation history 

and reached the conclusion, for the reasons just articulated, that a penalty reduction is not 

warranted on that account.
27

Size of the operator: the appropriateness of such penalty to the size of the business of the 

operator 

This factor and the next, the effect on the operator's ability to continue in business, will 

only require a very brief discussion. 

The penalty factor of size provides “[i]n assessing civil monetary penalties, the 

Commission shall consider ... the appropriateness of such penalty to the size of the business of 

the operator charged.” 30 U.S.C. §820(i). 

Government Exhibit A, an official government business record reflecting the 

Respondent’s size, informs under “Mine Tonnage” 1,181,122 tons, and for “Controller 

Tonnage,” 2,195,076 tons. (emphasis added). Government Exhibit A was not challenged by the 

Respondent. There were no other references in Volume 1 or 2 of the transcript to this penalty 

factor. As mentioned, on April 22, 2020, the Court convened a conference call with the parties 

to discuss the penalty factors for which the Commission directed greater attention by the Court 

upon remand. Email responses to those factors were received by the parties in advance of the 

conference. Responding to this factor, the Respondent cited to the figures in Government 

Exhibit A and the Secretary referred to the figures in that Exhibit as well. 

Per 30 C.F.R. §100.3(b), “[t]he appropriateness of the penalty to the size of the mine 

operator's business is calculated by using both the size of the mine cited and the size of the 

mine's controlling entity. The size of coal mines and their controlling entities is measured by coal 

production. The size of metal and nonmetal mines and their controlling entities is measured by 

hours worked. The size of independent contractors is measured by the total hours worked at all 

mines. Penalty points for size are assigned based on Tables I to V. As used in these tables, the 

terms “annual tonnage” and “annual hours worked” mean coal produced and hours worked in the 

previous calendar year.” Solar Sources Shamrock Mine is a surface coal mine. Under Table I 

and II, a mine that produces over a million tons of coal is a large mine, earning 14 penalty points 

on a scale where points can range from 1 to 15 points and a controlling entity of the 

Respondent’s size earns 4 penalty points on a scale where points can range from 1 to 10. 

However, the Court is not wedded to Part 100’s tables. Instead, as with each of the 

penalty factors, the Court independently evaluates this factor, consistent with Commission 

decisional law. In so doing, the Court finds that a mine which produces over a million tons of 

coal per year is undeniably a large mine. This unchallenged million-plus tons figure is taken into 

account by the Court, and as a consequence in determining the penalty factor of size, the Court 

concludes that the Shamrock Mine is a large mine. Thus, this factor weighs toward a larger 

penalty in considering size among the statutory penalty factors. 

Accordingly, by any measure, Respondent Solar Sources is a large mine and so that 

factor does not work to provide a downward figure in the penalty to be assessed in this case.
28

Ability to continue in business.

This last factor for consideration under the remand is set forth in Section 110(i) of the 

Act, which speaks to the effect on the operator’s ability to continue in business.

In this regard, the Commission specifically raised the ability to continue in business 

criterion, stating:

[b]ecause Solar Sources did not contend that payment of the penalty would affect 

its ability to stay in business, the mistake as it relates to that particular penalty 

criterion was harmless error. In Sellersburg , [citation omitted] the Commission 

held, ‘In the absence of proof that the imposition of authorized penalties would 

adversely affect its ability to continue in business, it is presumed that no such 

adverse effect would occur. 

Solar Sources, 42 FMSHRC ___, slip op. at 8, n.10, 2020 WL 1890528 at *6, n. 10. Here, while 

the Court is unable to determine what the Commission was referring to when it stated that “the 

mistake as it relates to that particular penalty criterion was harmless error,” it apparently meant 

the Court’s mistake but that, as Solar Sources did not contend the penalty would affect its ability 

to continue in business, such error was harmless. Id. (emphasis added).

In response to the Court’s conference call inquiry regarding this factor, the Respondent 

answered that “Solar Sources did not contest the ability to continue in business.” This admission 

is consistent with the response from the Secretary asserting that the Respondent waived this 

argument when they did not argue it in their briefs. They noted that it is one of the penalty 

elements, but did not argue the Respondent would not be able to continue in business if the 

penalty remained. Although these comments are sufficient to put to bed any claim that this 

factor needs to be weighed in assessing the penalty here, the Majority itself has acknowledged 

that it is a non-issue.

The Court’s considered redetermination of the penalty for the berm violation

Before getting into the details of the Court’s penalty determination, it is important to 

refresh the reader about some critical facts involved in this matter. 

As stated in the Court’s initial decision, 

On June 29, 2016, while backing in, a dump haul truck [driver, Shawn Standish] 

overtraveled the berm at a dumping location, [with the truck] going over the 

embankment to the slurry pit some 47.75 feet below, [and] landing upside down. 

The driver jumped from the haul truck before it went over the embankment but 

received significant injuries from his escape.

Solar Sources, 40 FMSHRC 462 (Mar. 29, 2018) (ALJ). 
29

Words can only convey so much and for that reason the Court has included in the 

Appendix to this Decision Upon Remand two photos. Those photos convey the significant size 

of the dump truck and where it ended up in the slurry pit. It does not take much imagination to 

comprehend Mr. Standish’s certain fate had he not leaped from the truck as the berm collapsed. 

Mr. Standish’s testimony included the following description of his harrowing escape, 

testifying that he:

made a decision to set the blade back down, throw it in neutral, and grab my seat 

belt off at the same time and grabbed the door handle. I had a quick thought to 

jump off, but I knew I couldn't -- I didn't think I could get off the chain, so I 

thought, no, I had to go off the front. And it's a real quick thinking, ... so straight 

out the door. And then the seat belt kind of -- I remember feeling it on my 

shoulder kind of catch. And I had to move my arm back like such kind of down 

back behind me a little bit, and then I -- I ran completely off the end of the 

catwalk. 

Tr. 460.

Mr. Standish continued: 

[a]fter I landed, my right foot was out in front of my left foot, because I was just 

running off like an American Olympic, and I rolled to my right. And when I did, I 

turned my head and looked back, and then I saw the front of the truck going on 

over down the pit. 

Id.

The Court then inquired: “And d[id] you actually see it flip over as it heads off?” 

Standish replied, “Yes.” Tr. 461. The Court continued that it was “impressed that [he] had the 

presence of mind to jump off the truck. That was a good move, right? Because as you say, not 

only was the risk of if you stayed in the truck, but apparently, you could have been engulfed in 

material even if you were in one piece when the truck finally came to rest, right? That was -- the 

material sucks you up, you could have suffocated?” Again, Standish responded, “Yes.” Tr. 465 

(emphasis added).

Speaking to the seriousness of his injuries, Standish related that he “had operation[s] 

on -- on two feet with steel and casts on both of [his] legs. I was on some very, very strong 

medication.” Tr. 478. Having observed Mr. Standish take the witness stand, the Court then 

asked, “Are you having trouble walking because of your heel still, or is this residual from your 

heels?” Standish responded, “Yes, sir. ...There's two donors bone and a steel plate with ten 

screws that holds this foot together. And like this morning, it takes a little bit to get going in 

the mornings, sir.” Tr. 483-484 (emphasis added). Observing the witness, as the Court did, as 
30

he took the stand, Mr. Standish’s remark that “it takes a little bit to get going in the mornings” 

was an understatement.

It is also of note that the Court’s finding of a violation was upheld. In this Court’s 

decision, the section 104(d)(1) citation alleging a violation of 30 C.F.R. §1605(1), pertaining to 

berms was affirmed. That standard, titled, “Loading and haulage equipment; installations,” 

provides at subsection (1) “Berms, bumper blocks, safety hooks, or similar means shall be 

provided to prevent overtravel and overturning at dumping locations.” 

The Citation alleged that:

[t]he berm where the overtravel occurred was constructed of the slurry material. 

This material would not compact enough to create a substantial means of stopping 

overtravel. The mine operator has engaged in aggravated conduct by failure to 

ensure adequate berms were in place in an area known to have constant problems 

with maintaining berms. This violation is an unwarrantable failure to comply with 

a mandatory standard.

40 FMSHRC 463. 

As further explained in this Remand Decision, the Court found that though initially the 

berm was constructed of substantial material, Solar Sources failed to maintain it, resulting in its 

collapse.24 Id. at 465, 492.

Accordingly, this decision upon remand speaks primarily to the penalty factors identified 

by the majority as insufficiently addressed by this Court and the Court’s redetermination of the 

penalty, all as instructed by the majority for it to perform. 

There is a second important matter which needs to be addressed before the Court speaks 

to its penalty determination. In view of the Remand’s directions, the Court initiated a conference 

call with the parties for the purpose of confirming that it had all the parties’ submitted 

information from the hearing testimony and their post-hearing briefs, regarding the four penalty 

factors the Court has been directed to consider in this Decision Upon Remand. Though not

requested by the Court, in advance of the April 23, 2020 conference call, Counsel for the 

Respondent nevertheless included his contention “MSHA Should Be Required To Produce The 

Special Assessment Worksheet That Shows The Regular Assessment.” Resp’t Email to the 

Court, April 17, 2020. 

 24 As this Court found in its initial decision: “It is also worth noting that the issue is not whether 

the berm originally was made of shot rock; the Secretary agrees that, as originally constructed, it 

was likely substantial and made from shot rock. Rather, it’s a question of whether it was properly 

maintained or allowed to deteriorate, with the Court finding that the latter occurred.” Id. at 492 

(emphasis added).
31

Respondent’s Counsel continued:

As noted by the Commission, the Secretary refused to produce the special 

assessment worksheet, that establishes the regular assessment based on the Part 

100 table. This Court should order the Secretary to produce the Special 

Assessment Narrative Form before deciding the revised penalty here. [citing] 

Commission Decision, p. 9, footnote 13. While the Commission decision on 

remand clarifies the Special Assessment does not control the process, the 

Commission notes you should have the calculation form that shows the regular 

assessment amount.

Id.

The Commission footnote cited by Respondent’s counsel stated:

The portion of the Secretary's "Special Assessment Narrative Form" used to 

derive the amount of the special assessment penalty proposal does not appear in 

this record. It was, however, provided to the mine operator in AmCoal I. 38 

FMSHRC at 1996. The Secretary bears the burden of justifying his penalty 

proposal under the criteria, and "[w]hen a violation is specially assessed that 

obligation may be considerable." Id. at 1993. Providing a rationale for a special

assessment is essential to providing more clarity to the Judge, and to the 

Commission on review, and the Secretary is obliged to provide more than an 

opaque process and a secret theory of the case. See Sellersburg, 5 FMSHRC at 

292-93 (explaining that requirement to discuss penalty criteria is necessary to 

provide adequate foundation for review).

Solar Sources, 42 FMSHRC ___, slip op. at 9, n.13, 2020 WL 1890528 at *7, n. 13.

There are several problems with Respondent Counsel’s assertion. To begin, the footnote 

from the majority in their remand for this matter, which Respondent’s Counsel relies upon, does 

not say that the Secretary should supply a regular Part 100 assessment. And, the citation by the 

majority in that footnote to the Commission’s decision in Sellersburg doesn’t suggest that either. 

Why is that the case? Because, for starters, as far as one can tell, that case did not have a Special 

Assessment, at least neither the judge, in his decision, which was all of four pages, made no 

reference to that. Nor, for that matter, did the judge refer to Part 100 at all in his decision. See, 4 

FMSHRC 1362-1366 (July 1982).25 

 25 The Court made an email inquiry with the Commission’s docket office in search of the 

underlying documents for the Sellersburg dockets. The docket office informed that no such 

documents were available, being advised that “e-CMS doesn’t go back that far. Nor does CTS 

for that matter. ... the petitions for all of dockets that old have been destroyed. The 
32

Nor did the Commission, in its Sellersburg decision on appeal of the trial judge’s 

decision, suggest that there were any Narrative Findings for a Special Assessment. It is true that 

the Respondent in that case did “request[] that new penalty calculations and findings consistent 

with 30 C.F.R. Part 100 be made.” Sellersburg at 290. But the Commission was having none of 

it. Instead, it explained how the penalty process works when a mine operator contests a proposed 

assessment, informing:

it is clear that under the Act the Secretary of Labor’s and the Commission’s roles 

regarding the assessment of penalties are separate and independent. The 

Secretary proposes penalties before a hearing based on information then available 

to him and, if the proposed penalty is contested, the Commission affords the 

opportunity for a hearing and assesses a penalty based on record information 

developed in the course of an adjudicative proceeding. 

Id. at 291 (emphasis added). 

Accordingly, it is more than a stretch to assert that the Commission Majority in this 

remand is now suggesting that it can require the Secretary to submit a regular penalty assessment 

calculation when the Secretary has decided to use his Special Assessment procedure. That the 

majority has been critical of the Special Assessment method vis-à-vis regular assessments is one

thing, but at least to this Court, it would be an entirely different matter for the majority to direct 

the Secretary to provide a regular assessment calculation, when the Secretary has decided against 

that route. The Secretary and the Commission each have their own domains. Besides, as the 

Sellersburg decision informs, “in a contested case the Secretary’s penalty proposals are not 

binding on the Commission or its judges. Thus, the penalties assessed de novo in a Commission 

proceeding appropriately can be greater than, less than, or the same as those proposed by the 

Secretary.” Id. at 293. 

Summary of the Court’s Independent Assessment of the Penalty Factors 

In assessing penalties de novo, it is within the discretion of the Commission, and thus of 

its judges acting in the first instance, to accord different weights to the six penalty 

factors. “[T]here is no requirement that equal weight must be assigned to each of the penalty 

assessment criteria ... [but] all six statutory criteria must at least be considered in assessing civil 

penalties...” Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). The Court has 

applied greater weight to the negligence and gravity penalty factors and determined that the 

modest violation history over the past two years should not operate to bring about a net negative 

reduction in the penalty assessed, especially when considered with the other statutory penalty 

factors, all as set forth with detail in this decision upon remand.

 

Commission’s docket retention is only six years after disposal.” Email response from Docket 

Office April 27, 2020. 
33

Negligence 

The Court in its March 2018 decision detailed its findings regarding Solar Sources’ 

negligence. Those findings, which the majority did not take issue with, are reaffirmed here. 

As the majority noted, this Court analyzed two of the six statutory criteria: operator negligence 

and the gravity. Solar Sources, 42 FMSHRC ___, slip op. at 7, 2020 WL 1890528 at *5. 

Finding the negligence to have constituted an unwarrantable failure, the negligence associated 

with this violation was of the highest order for this penalty factor and thus points to the highest 

penalty the Court may impose. 

Gravity 

Here too, as with the negligence factor, the gravity factor, as found by the Court in its 

March 2018 decision was of the highest level. If not for Mr. Standish’s wise decision to exercise 

self-help, in what was literally a leap for life moment, a fatality would almost certainly have been 

the result. The photographs in the Appendix and the testimony leave no other rationale 

conclusion. Further, his leap did not leave him unscathed, not by a long shot. His testimony 

and his difficulty ambulating as he took the witness stand plainly established that he has 

significant health residuals. Accordingly, for this factor too, the gravity associated with this 

violation was also of the highest order for this penalty factor and thus points to the highest 

penalty the Court may impose. 

Good faith

As described in detail above, to put it simply, the Respondent displayed zero good faith, 

as that term is described among the statutory penalty factors. Accordingly, the Respondent is 

entitled to nothing in terms of any penalty offset or reduction based on that penalty factor. The 

Respondent sealed its own fate in this regard, noting that the actions it took subsequent to the 

berm collapse resulted because MSHA made it take those steps. Therefore, the idea of a good 

faith penalty reduction in this instance is inimical to the concept. 

Size of the Operator

Here, little needs to be said for this penalty factor. There is no disagreement between the 

parties: Solar Sources, by measure both of mine and by controller tonnage is a large mine. 

Attachment A to the penalty petition. Therefore, there is no downward penalty impact for this 

factor regarding this operator.

Ability to Continue in business

Respondent has conceded that, even when there were originally two violations involved, 

a (d)(1) citation and a (d)(1) order, each assessed at $68,300 by the Secretary, such proposed 
34

penalties would not threaten its ability to continue in business. Accordingly, there is no 

downward impact on the penalty imposed upon consideration of this penalty factor.

History of Violations

Regarding the operator’s violation history, the majority expressed that Gov. Exhibit P 2 

reflects:

a positive compliance record in that the operator had not had a berm violation in 

six years and only two such violations in its entire history. It did not have any 

unwarrantable failures in the 15 months preceding the citation. In fact, the 

operator had received only 19 citations under section 104(a) of the Mine Act, 30 

U.S.C. § 814(a), for which it was penalized a total of $13,276. 

Solar Sources, 42 FMSHRC ___, slip op. at 7, n.8, 2020 WL 1890528 at *6, n. 8. 

On this topic, the Commission also stated that “consistent with the graduated 

enforcement scheme of the Act, an operator's past history of significant violations should be 

considered in considering assessing higher penalties. ... . By parity of reasoning, an operator's 

history of few violations is relevant in considering the assessment of higher penalties.” Id. at 7-

8, n. 9, *6, n.9 (emphasis added). As set forth in this decision, the Court has considered the 

operator’s two year violation history. 

In this respect, that is, the Respondent’s violation history, the majority did not conceal 

their view that, as noted earlier, a history as the Respondent’s here, 

may be highly relevant to incentivizing compliance [and that at least in this case] 

it is error to ignore the history of violations in imposing a penalty merely by 

noting an exhibit in the record.... [and that] an operator's history of few violations 

is relevant in considering the assessment of higher penalties. 

Id. at 7, and n. 9, *6, n.9. 

And so, the majority stated this, i.e. the significance of the history of violations, is a 

question of fact for the Court to resolve.26 The majority has indicated that a downward penalty 

 26 It is noted that Commissioner Jordan, in her dissent, took issue with this expression by the 

majority, stating:

Regarding the operator's history of violations, in Sellersburg, the Secretary had 

entered an exhibit into evidence indicating the number of violations charged and 

penalties for violations paid during the relevant two-year period. Sellersburg 

Stone Co., 5 FMSHRC 287, 294 (Mar. 1983). The Commission determined that 

therefore the operator had at least a moderate history of previous violations. Id. 

In this case, the Secretary entered a similar exhibit into evidence, Ex. P- 2, to 
35

impact should be “considered.” The Court has considered the operator’s violation history, but, 

as explained, in performing its independent review of that history, it rejects the merit of the

perspective that it deserves a downward penalty adjustment for that factor, as applied in this 

instance.

As described in greater detail above, it is true that in the past two years Solar Sources has 

had a modest number of violations, with Ex. P 2 reflecting some 19 violations over that period. 

However, just as the majority has noted, the Court is to independently determine the relevant 

violation history and come to its own conclusions about that history in evaluating that penalty 

factor. From the Court’s perspective, the violation history does not especially aid the 

Respondent when considering this factor. The reason for this is the Respondent’s admission that 

it has had prior berm violations, apart from the monumental berm violation involved here. Those 

prior berm violations are not, in the Court’s independent evaluation, ancient history, as they 

occurred in 2008 and 2010-2011, according to Respondent’s witness Mr. Fields, as described 

above. In the Court’s view, those relatively recent berm violations should have triggered 

continued vigilance about the mine’s berms. While not within the past two years of this 

violation, the Court does not consider them to have passed an expiration date, as it were. 

Although the Secretary has apparently decided to look at a two year period, as the majority has 

made clear, the Commission and its judges are not so constrained. The Court concludes that only 

a small downward penalty adjustment is due upon consideration of this factor. Further, that is 

more than offset by consideration of the other five penalty factors, each of which points in the 

opposite direction.

The Court’s Determination of an Appropriate Civil Penalty

The Majority has noted that: 

[i]n assessing a penalty de novo, a Judge is neither bound by the Secretary's Part 

100 regulations nor by the originally proposed penalty. See Sellersburg Stone Co. 

v. FMSHRC, 136 F.2d 1147, 1151-52 (7th Cir. 1984), aff'g 5 FMSHRC 287 

(Mar. 1983)(“Sellersburg”). Judges are accorded broad discretion to assess civil 

penalties, but their decisions must reflect proper consideration of the section 

110(i) penalty criteria. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 

1986). The Judge must provide an explanation if the penalty assessment 

 

which the Judge referred when referencing the operator's violation history. Solar 

Sources has never challenged the accuracy of this information. Although my 

colleagues assert that the Commission cannot make its own findings on this 

factor, slip op. at 8, I conclude that, given that there remains no factual dispute 

regarding the violation history, the parties' disagreement as to the significance of 

the uncontroverted evidence is not a reason to remand the case. 

Solar Sources, 42 FMSHRC ___, slip op. at 33, n. 5, 2020 WL 1890528 at *26, n.5.
36

substantially diverges from the Secretary's proposed regular assessment.27 

Sellersburg, 5 FMSHRC at 293. The Commission reviews the Judge's penalty 

determination under an abuse of discretion standard. Douglas R. Rushford 

Trucking, 22 FMSHRC 598, 601 (May 2000). 

Solar Sources, 42 FMSHRC ___, slip op. at 4, 2020 WL 1890528 at *3.

Referring to Sellersburg, the Commission stated that the Judge: 

must make [f]indings of fact on each of the statutory criteria [that] not only 

provide the operator with the required notice as to the basis upon which it is being 

assessed a particular penalty, but also provide the Commission and the courts . . . 

with the necessary foundation upon which to base a determination as to whether 

the penalties assessed by the judge are appropriate, excessive, or insufficient. 

Id. at 4, *3 (citing 5 FMSHRC at 292-93) (italics in original, bold added).

However, the majority then noted that “the findings and explanations relating to a penalty 

assessment do not have to be exhaustive, [but] they must at least provide the Commission with a 

basis for determining whether the judge complied with the requirement to consider and make 

findings concerning the section 110(i) penalty criteria.” Id. at 4, 10, n. 14, *3, 7, n.14 (citing 

Cantera Green, 22 FMSHRC 616, 621 (May 2000)). The majority also referred to Commission 

Procedural Rule 30(a) and its provision that Judges’ decisions “shall contain findings of fact and 

conclusions of law on each of the statutory criteria and an order requiring that the penalty be 

paid.” Id. at 5, n. 5, *4, n.5. See also, 29 C.F.R. § 2700.30(a). 

In subpart 3(c) “Special assessments,” and its “Guidance to Judges” in the majority’s 

opinion, it endorsed that a Special Assessment is a “litigation proposal.” As such, favorably 

considering “the agency's proposal for a high penalty is subject to the Secretary's presentation of 

proof of facts warranting a high penalty.” Solar Sources, 42 FMSHRC ___, slip op. at 17, 2020 

WL 1890528 at *13. In taking that stance, the majority stated that the principle in Sellersburg 

regarding “substantial divergence” does not apply where a Special Assessment is used. In such 

instances, the majority instructs that “the entire focus of a Judge's independent penalty inquiry 

must be on the factual findings as they relate to the penalty criteria, rather than on the amount 

sought by MSHA.” Id. 

 27 One needs to be acutely aware of the context for this quote in the Majority’s Remand. Both in 

this quote and where the “substantially diverges” phrase appears a second time in the Remand, 

the Majority is speaking about a regularly assessed penalty and doing so as a baseline 

explanation of the penalty proposal process. See Solar Sources, 42 FMSHRC ___, slip op. at 13, 

2020 WL 1890528 at *10. There was no proposed regular assessment in this case and, for the 

reasons explained, it is not the affair of the Commission to direct the Secretary as to which 

procedure he decides to employ, regular or Special Assessments, in proposing penalties. 
37

This translates into the majority’s view that, in Special Assessments, “MSHA ‘bear[s] the 

‘burden’ before the Commission of providing evidence sufficient in the Judge's discretionary 

opinion to support the proposed assessment under the penalty criteria.’” Id. Then, the majority 

adds, “[w]hen a violation is specially assessed, that obligation may be considerable.” Id. 

In discussing its Special Assessment guidance to judges, the majority again references the 

D.C. Circuit’s opinion in American Coal, 933 F.3d at 727, referring to that court’s remark that 

“MSHA did not bear any ‘burden’ with respect to a penalty and backhanded MSHA's penalty 

assessment as if it were unimportant – an impotent litigating position.” Solar Sources, 42

FMSHRC ___, slip op. at 17, 2020 WL 1890528 at *13. The majority then explained that:

[i]t is necessary to understand, therefore, that when the Commission used the term 

‘burden’ in AmCoal, 38 FMSHRC at 1993, it did not do so in terms of a 

preponderance of proof standard of review. Instead, the Commission meant that, 

in seeking to sustain the litigating position regarding a special assessment-that is, 

an especially large penalty-the Secretary must present evidence to sustain, in the 

Judge's discretion, the need for a large penalty.

Id.

In Mining & Property Specialists, a case in which the judge’s conclusion regarding 

operator negligence, which conclusion was supported by substantial evidence, the judge gave 

greater weight to the negligence factor, an action plainly permitted by Commission case law. 

2011 WL 6326020 (Dec. 2011) (citing Spartan Mining Co., 30 FMSHRC 699, 724, 725 (Aug. 

2008))(“Spartan”) (upholding judge's increase of Secretary's proposed penalty by 711%, (seven 

hundred and eleven percent) from $3,700 to $30,000, in which the judge gave increased 

weight to the factors of gravity and negligence and because the judge explained his disagreement 

with Secretary's conclusions as to gravity and negligence and gave those factors increased 

weight). Spartan at *22.

The majority, in its remand, noted Spartan with approval. The Majority added that “[i]t 

is not possible to enunciate a precise formula for recitation of penalty factors that would fit all 

cases. Consequently, as must be obvious, the evaluation of compliance with the requirement for 

an adequate review of all criteria is case-specific.” Solar Sources, 42 FMSHRC ___, slip op. at 

6, 2020 WL 1890528 at *5. The majority added, “Each decision must be case-specific, and the 

Commission's decision turns on whether the Judge's exposition of the penalty factors permits the 

Commission to determine that the Judge has fully considered the penalty criteria individually and 

in relationship to one another.” Id. 

All penalty factors are not created equal. Especially in an egregious case as this one, the 

negligence and gravity factors must dominant the penalty analysis. This only makes sense. 

For example, if a mine was a new operation and had no history, yet in short order it allowed a 
38

berm to deteriorate and the end result was an enormous accident with near fatal results, the 

impact of the history of violation, while considered, should be at the vanishing point.

As the Commission also stated in Spartan: 

[t]he judge [ ] adequately explained the bases for his decision to assess a higher 

penalty than originally proposed. We held in Lopke Quarries, Inc., 23 FMSHRC 

705, 713 (July 2001), that a judge did not abuse his discretion by weighing the 

factors of negligence and gravity more heavily than the other four statutory 

criteria. Similarly, we hold here that it was certainly appropriate for the judge to 

raise the penalty significantly based on his findings of extreme gravity and 

unwarrantable failure. 29 FMSHRC at 486-87, (emphasis added). Accordingly, 

we hold that the judge was well within his discretion in assessing a penalty of 

$30,000 for the section 75.313(a)(3) violation. 

Spartan, 2008 WL 4287784 at *23 (emphasis added) (Commissioner Young, joining 

Commissioners Jordan and Cohen).

28

The Court believes it has complied with this standard of penalty factor evaluation. 

And, in particular the Court believes that it has carried out this task both from examining the 

criterion individually and examining the factors in relationship to one another. Thus the Court’s

evaluation of the operator’s history independently looked at that issue from both perspectives, 

concluding that no penalty reduction is due for that factor. 

 28 “The judge found that Spartan violated section 75.313(a)(3) because Foreman Sada did not 

order his crew to retreat from the working section during the mine fan stoppage. ...He 

determined that “[i]f McNeely had been withdrawn from the working section, instead of being 

allowed to repair an electrical cable while mine fan power was lost, he would not have been 

electrocuted.” ... Although the judge disagreed with the Secretary’s conclusion that the violation 

was not S&S, he was not authorized to modify the order. ... The judge found that the gravity of 

the violation was “extremely serious” because permitting mine operations to continue during the 

hazardous period of no mine ventilation exposed eight miners to serious or fatal injuries. ... 

The judge concluded that the violation was properly designated as a result of unwarrantable 

failure because Sada’s failure to withdraw the miners from the working section constituted 

reckless disregard of safety procedures. The judge assessed a penalty of $30,000, instead of the 

$3,700 proposed by the Secretary, [a 711% penalty increase] because of the grave nature of the 

violation and the reckless and conscious failure to withdraw miners from the working section. 

Spartan at *4 (citations omitted) (emphasis added).
39

This approach is in line with the majority’s direction that the Court is “to exercise his 

responsibility to conduct an independent and reasoned analysis, using the record evidence.” 

Solar Sources, 42 FMSHRC ___, slip op. at 22, 2020 WL 1890528 at *16, (emphasis added). 

That analysis is to include findings of fact or meaningful explanation on each of 

the statutory penalty criteria, and particularly in this case, to make findings 

regarding the operator's history of violations and the operator's actions related to 

attempting to achieve rapid compliance after notification of a violation, consistent 

with the requirements of Commission Procedural Rule 30(a) and section 110(i) of 

the Mine Act. The Judge should then reassess a civil penalty in accordance with 

the established Commission precedent of AmCoal I. 

Id. 

The Court believes that in this decision upon remand it has carried out these 

responsibilities. 

Upon consideration of the six statutory penalty criteria, and recognizing that the 

Respondent could have been subject to civil penalty up to $70,000.00, a figure available apart 

from the Secretary’s Special Assessment figure of $68,300.00, the Court assesses a civil penalty 

of $69,000.00. Thus, the Court has followed the majority’s instruction that it is to exercise its 

own responsibility to conduct an independent and reasoned analysis, using the record evidence.

Summary

The Court concludes that there has been substantial evidence to support its conclusions 

about the facts surrounding the violation and the associated special findings regarding the 

statutory penalty facts and the Court’s basis for the penalty imposed. It is noted that in reviewing 

the judge's factual findings supporting the consideration of the various penalty criteria, the 

Commission applies the substantial evidence test. Hubb Corp., 22 FMSHRC 606, 609 (May 

2000); Douglas R. Rushford Trucking, 22 FMSHRC 598, 601 (May 2000). The Commission has 

also recognized that in reviewing a judge’s penalty determination, it need not come to the same 

conclusion as the judge, where it finds that substantial evidence supports the judge's finding. 

Sec. v. Coal River Mining, LLC, 32 FMSHRC 82, (Feb. 2010), 2010 WL 594840, at *12. 

The majority has expressed that the test is “the Secretary’s presentation of proof of facts 

warranting a high penalty,” which it then restated as the obligation for “the Secretary [to] present 

evidence to sustain, in the Judge's discretion, the need for a large penalty.” Remand at 17, 2020 

WL 1890528 at *13. These responsibilities, the Court has concluded, the Secretary has met writ 

large. 
40

The appropriateness of the penalty imposed can be highlighted with this example: If one 

were to hypothesize that all of the following obtained: a large mine, facing a penalty for which it 

is able to continue in business without effect, and with no significant violation history. 

Considering those assumptions, and then adding that there was no good faith at all on the 

operator’s part and that the gravity was marked as highly likely, and the injury or illness that 

could reasonably be expected to be fatal, and the violation as S&S and the negligence as high, 

constituting an unwarrantable failure, it is the Court’s view that there can be no doubt that the 

consideration of those two factors, gravity and negligence, should be the dominant drivers of the 

penalty determination. Taking into account the impact of a modest recent violation history, but 

as the Court is not restricted to only the previous two years of violations, it has determined that 

the penalty should not be reduced on that score in light of the fact that the mine had prior berm 

violations. 

Per the majority’s March 12, 2020 Decision remanding this matter to the Court, having 

carried out the instructions from that remand, the Court has reviewed its undisturbed findings 

regarding the gravity and negligence involved in this matter. Further, it has undertaken the 

independent review of the other four statutory factors, namely the appropriateness of such 

penalty to the size of the business of the operator charged, the effect on the operator's ability to 

continue in business, the operator's history of previous violations, and the demonstrated good 

faith of the operator charged in attempting to achieve rapid compliance after notification of a 

violation. 

The Court is appreciative of the majority’s admonition that all of the statutory penalty 

factors must be considered and a rationale provided for the Court’s independent conclusions 

about those factors. This close attention to each of the factors has borne fruit in this case. The 

Court should have looked more closely at the good faith factor in particular before issuing its 

initial decision. Now having independently more completely examined that factor, the Court 

realizes that the lack of good faith should have been discussed more fully, a correction made in 

this decision upon remand.

As described above, the operator is large and this is not contested. Similarly, it has been 

conceded that, even when there were originally two penalties involved, each then with a 

proposed assessment of $68,300.00, the operator did not contend that such penalties would have 

an effect on the operator's ability to continue in business. 

In terms of the operator’s violation history, the Court has concluded that no penalty 

reduction is warranted, on the basis of that factor, because the operator had previous berm 

violations, which violations the Court does not consider to have been ancient. Further, speaking 

to the majority’s instructions that the Court is to consider the interrelationship between the 

penalty factors, the Court finds that both the gravity and the negligence weigh heavily against 

awarding a reduction on the basis of the operator’s violation history. In particular, the Court 

notes that the Respondent admitted to being aware that berms were a constant problem, requiring 
41

constant attention. Further, even if one were to assume for the sake of argument that a reduction 

of some amount should be awarded on the basis of a modest penalty history, the Court,

employing the majority’s view that the interrelationship between the penalty factors should be 

considered, finds that the lack of any good faith more than offsets such a reduction.

Finally, addressing the factor of the demonstrated good faith of the operator charged in 

attempting to achieve rapid compliance after notification of a violation, the Court has found, as 

described above, that there was no such demonstrated good faith. The Respondent’s own 

witness admitted that the actions they took after the berm collapse were brought about because 

it had to take those actions, per MSHA’s instructions. Accordingly, any reduction on that basis 

is undeserved and inimical to the meaning of the factor. 

Having found that the violation identified in Citation No. 9102704 was established and 

that the Inspector’s evaluation of the gravity and negligence and his finding of unwarrantable 

failure and significant and substantial were demonstrated and that no cognizable mitigation was 

advanced, the Court therefore finds, that upon application of the statutory criteria, a penalty of

$69,000.00 is imposed. Cognizant that, at the time of this violation, the maximum penalty was 

$70,000.00, the Court does not believe that such an amount should be reserved to fatalities, 

though in this instance a fatality would almost certainly have resulted, but for the wise decision 

of Mr. Standish to take self-help by leaping from the huge dump moments before it fell down the 

slope to the slurry pit nearly 50 feet below. The Court finds that this violation was “especially 

egregious” for enforcement purposes.

ORDER

It is hereby ORDERED that the Citation No. 9102704 in this decision is AFFIRMED as 

written. Respondent is ORDERED to pay the civil penalty in the total amount of $69,000.00

within 30 days of this decision. 29

_____________________

William B. Moran

Administrative Law Judge

 29 Penalties may be paid electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508.

Alternatively, send payment (check or money order) to:

U.S. Department of Treasury

Mine Safety and Health Administration

P.O. Box 790390, St. Louis, MO 63179-0390

Please include Docket and A.C. Numbers.
42

APPENDIX

The truck involved. Photo reveals its undisputed large size by comparing it to the person and cars in the 

photo. 
43

Photo showing where the truck ended up in the slurry pit, upside down.
44

Distribution:

Mark Heath, Esq.

Spilman Thomas & Battle PLLC 300 

Kanawha Boulevard, East

P.O. Box 273

Charleston, WV 25321-0273

Emelda Medrano, Esq.

Office of the Solicitor

U.S. Department of Labor

230 S. Dearborn Street, 8th Floor

Chicago, IL 60604

Ali Beydoun, Esq.

Office of the Solicitor US

Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

April Nelson, Esq.

Office of the Solicitor US

Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Melanie Garris, Esq.

Office of Civil Penalty Compliance, MSHA

U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5450