i 

April 2023 

TABLE OF CONTENTS 

COMMISSION ORDERS 

04-12-23 CARMEUSE LIME AND STONE, 

INC. 

LAKE 2023-0074 Page 179

04-12-23 HANSON AGGREGATES 

PENNSYLVANIA LLC

PENN 2022-0116 Page 184

04-17-23 BLUE MOUNTAIN ENERGY, INC. WEST 2021-0189 Page 189

04-17-23 DRAGON PRODUCTS COMPANY, 

LLC 

YORK 2021-0060 Page 192

04-17-23 DRAGON PRODUCTS COMPANY, 

LLC 

YORK 2022-0016 Page 195

ADMINISTRATIVE LAW JUDGE DECISIONS 

04-25-23 CONSOL PENNSYLVANIA COAL 

COMPANY, LLC 

PENN 2022-0129 Page 199

04-27-23 GREENBRIER MINERALS, LLC WEVA 2023-0036 Page 208

ADMINISTRATIVE LAW JUDGE ORDERS 

04-06-23 NEXT ENDEAVOR VENTURES, 

LLC 

VA 2023-0023 Page 213

04-28-23 WARRIOR MET COAL MINING 

LLC 

SE 2023-0030 Page 227
No Review Was Granted or Denied During The Month Of

April 2023
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

April 12, 2023 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

ORDER

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On January 26, 2023, the Commission received from Carmeuse 

Lime and Stone, Inc. (“Carmeuse”) a motion seeking to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 

815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on November 16, 2022, and 

became a final order of the Commission on December 16, 2022. Carmeuse asserts that it timely 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

CARMEUSE LIME AND STONE, INC. 

Docket No. LAKE 2023-0074 

A.C. No. 12-00426-566346

45 FMSHRC Page 179
filed Notices of Contest with the Commission for three of thirteen penalties at issue.1

 When 

MSHA issued the proposed assessment, Carmeuse’s Senior Area Safety and Health Manager 

was on vacation. He did not receive a paper copy of the assessment (receiving an electronic 

version instead) and, upon his return, he mistakenly failed to file a timely contest. However, 

Carmeuse diligently monitored MSHA’s website and quickly learned that the citations had 

become final orders. Carmeuse then promptly filed a motion to reopen prior to the issuance of a 

delinquency notice. The Secretary does not oppose the request to reopen, but urges the operator 

to take steps to ensure that future penalty contests are timely filed.2

 

 Having reviewed Carmeuse’s request and the Secretary’s response, we find that the 

operator clearly expressed its intent to contest the citations by initiating contest proceedings with 

the Commission and that Carmeuse’s failure to timely file a contest with MSHA was due to 

inadvertence or mistake within the meaning of Rule 60(b)(1). Asarco LLC, 42 FMSHRC 308, 

310 (Apr. 2020). Moreover, Carmeuse diligently monitored MSHA’s website to assess the status 

of the penalties and took prompt action to file a motion to reopen after it discovered its mistake. 

In the interest of justice, we hereby reopen this matter and remand it to the Chief Administrative 

Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural 

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a 

 

1

 The Contest Proceedings are docketed as LAKE 2023-005, LAKE 2023-0008, and 

LAKE 2023-0009. 

2

 According to Carmeuse, its Senior Area Safety and Health Manager is responsible for 

reviewing and contesting all proposed penalties received at 12 of the operator’s mines. Given the 

importance of this position in the contesting process, we urge Carmeuse to ensure backup 

procedures are in place for receiving proposed penalties when the manager is unavailable. 

45 FMSHRC Page 180
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. 

§ 2700.28. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

45 FMSHRC Page 181
Distribution: 

Arthur M. Wolfson, Esq. 

Fisher & Phillips LLP 

6 PPG Place, Suite 830 

Pittsburgh, PA 15222 

awolfson@fisherphillips.com 

R, Henry Moore, Esq. 

Fisher & Phillips LLP 

6 PPG Place, Suite 830 

Pittsburgh, PA 15222 

hmoore@fisherphillips.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 182
Patrick W. Dennison, Esq. 

Fisher & Phillips LLP 

6 PPG Place, Suite 830 

Pittsburgh, PA 15222 

pdennison@fisherphillips.com 

45 FMSHRC Page 183
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

April 12, 2023 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

ORDER

BY: Jordan, Chair; Rajkovich and Baker, Commissioners 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On August 3, 2022, the Commission received from Hanson 

Aggregates Pennsylvania LLC (“Hanson”) a document deemed to be a motion seeking to reopen 

a penalty assessment that had become a final order of the Commission pursuant to section 105(a) 

of the Mine Act, 30 U.S.C. § 815(a). 

 Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

 We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that a proposed assessment was issued to the operator on March 29, 2022. 

The Secretary claims that Hanson did not timely contest the proposed penalties, and the penalties 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

HANSON AGGREGATES 

 PENNSYLVANIA LLC 

 Docket No. PENN 2022-0116 

 A.C. No. 36-00091-552174 

45 FMSHRC Page 184
became a final order of the Commission on May 9, 2022.1

 MSHA sent Hanson a delinquency 

notice on June 23, 2022. On August 3, 2022, the Commission received a notice of contest from 

Hanson, dated May 13, 2022, indicating Hanson’s contest of six of the citations listed on the 

proposed penalty assessment. The Commission deemed the document received on August 3 to be 

a request to reopen. 

Because Hanson’s document does not explain the company’s failure to contest the 

proposed assessment on a timely basis and is not based on any of the grounds for relief set forth 

in Rule 60(b), we hereby deny the request for relief without prejudice. See Lehigh Sw. Cement 

Co., 31 FMSHRC 595 (June 2009); FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007). The 

words “without prejudice” mean that Hanson may submit another request to reopen the 

assessment.2

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

1

 The Secretary did not state when she believes the proposed assessment was received by 

Hanson. 

2

 If Hanson submits another request to reopen, it must establish good cause for not 

contesting the citations within 30 days from the date it received the citation from MSHA, and 

provide information about whether it has paid the penalties for the citations it chose not to 

contest. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of “good cause” 

may be shown by a number of different factors including mistake, inadvertence, surprise, or 

excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or 

fraud, misrepresentation, or other misconduct by the adverse party. Hanson should include a full 

description of the facts supporting its claim of “good cause,” including how the mistake or other 

problem prevented it from responding within the time limits provided in the Mine Act, as part of 

its request to reopen. Hanson should also submit copies of supporting documents with its request 

to reopen. 

(continued...) 

45 FMSHRC Page 185
Commissioner Althen, dissenting: 

 I respectfully dissent.3

/s/ William I. Althen 

William I. Althen, Commissioner 

 

2

3(...continued) 

Rule 60(c) of the Federal Rules of Civil Procedure provides that a Rule 60(b) motion 

must be made within a reasonable time, and for reasons of mistake, inadvertence, or excusable 

neglect, not more than one year after the judgment, order, or proceeding was entered or taken. 

Fed. R. Civ. P. 60(c). Any motion to reopen filed by Hanson must comply with this timing 

requirement. In other words, if Hanson files a motion to reopen alleging mistake, inadvertence, 

or excusable neglect, the motion must be filed within a reasonable time and no later than one 

year after May 9, 2022.

45 FMSHRC Page 186
Distribution: 

Melinda Dibble 

JD Mining Safety Consultation, LLC. 

2117 Old Philadelphia Pike, Unit 401 

Lancaster, PA 17602 

JDMiningSafetyConsultation@gmail.com 

Timothy Poppenberg 

Area Operations Manager 

Hanson Aggregates Pennsylvania LLC 

7660 Imperial Way 

Allentown, PA 18195 

Timothy.Poppenberg@lehighhanson.com 

Gerald Spearing 

Plant Manager 

Hanson Aggregates Pennsylvania LLC 

7660 Imperial Way 

Allentown, PA 18195 

Gerald.Spearing@lehighhanson.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

45 FMSHRC Page 187
Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 188
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

April 17, 2023 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

 

ORDER

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On April 22, 2021, the Commission received from Blue 

Mountain Energy, Inc. (“Blue Mountain”) a motion seeking to reopen a penalty assessment that 

had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815(a). 

 Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

 We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on July 13, 2020. On August 4, 

2020, MSHA received a partial payment of the assessment. The remainder of the assessment 

became a final order of the Commission on August 12, 2020. On September 28, 2020, MSHA 

sent the operator a delinquency notice. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

BLUE MOUNTAIN ENERGY, INC. 

Docket No. WEST 2021-0189 

A.C. No. 05-03505-517587 

45 FMSHRC Page 189
Blue Mountain asserts that it intended to contest Citation No. 9030973 ever since the 

citation at issue was upheld during a safety and health conference on June 17, 2020. However, on 

July 16, 2020, Blue Mountain claims that it inadvertently mailed the contest to the Federal Mine 

Safety and Health Review Commission and to a Conference Litigation Representative rather than 

to the correct MSHA address. The Secretary does not oppose the request to reopen, but urges the 

operator to take steps to ensure that future penalty contests are timely filed. 

Having reviewed Blue Mountain’s request and the Secretary’s response, we find there is 

sufficient evidence that mistakes were made, thus satisfying the Rule 60(b) criteria. We find that 

Blue Mountain acted in good faith, as demonstrated by its explanation for its failure to timely 

contest the assessment, its earlier efforts to engage in a conference, and the Secretary’s nonopposition. In the interest of justice, we hereby reopen the penalty for Citation No. 9030973 and 

remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with 

Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of 

this order. See 29 C.F.R. § 2700.28. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

45 FMSHRC Page 190
Distribution: 

Christopher G. Peterson 

Fisher & Phillips LLP 

1125 17th Street, Suite 2400 

Denver, CO 80202 

cpeterson@fisherphillips.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 191
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

April 17, 2023 

 BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

 

ORDER

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On August 19, 2021, the Commission received from Dragon 

Products Company, LLC (“Dragon”) a motion seeking to reopen a penalty assessment that had 

appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act, 

30 U.S.C. § 815(a). 

Dragon claims it never received the proposed penalty assessment from the Department of 

Labor. The Secretary of Labor does not oppose the request to reopen and concedes that the 

assessment was not delivered to the operator but rather, was returned to MSHA. 

 Section 105(a) states that if an operator “fails to notify the Secretary that [the operator] 

intends to contest the . . . proposed assessment of penalty . . . the proposed assessment of penalty 

shall be deemed a final order of the Commission. 30 U.S.C. § 815(a). Here, because the operator 

never had an opportunity to timely contest the proposed assessment, we conclude that the 

proposed penalty assessment did not become a final order of the Commission. This obviates any 

need to invoke Rule 60(b) of the Federal Rules of Civil Procedure. Accordingly, the operator’s 

motion to reopen is moot. 

 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

DRAGON PRODUCTS COMPANY, LLC 

 Docket No. YORK 2021-0060 

 A.C. No. 17-00022-533995 

45 FMSHRC Page 192
We deem the operator’s motion a contest of the relevant penalties. Accordingly, 

consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 

days of the date of this order. See 29 C.F.R. § 2700.28. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

45 FMSHRC Page 193
Distribution: 

C. Gregory Ruffennach, Esq. 

1629 K Street, N.W., STE 300 

Washington, DC 20036 

greg@ruffennachlaw.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

 

45 FMSHRC Page 194
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

April 17, 2023 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

 

ORDER

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On December 22, 2021, the Commission received from Dragon 

Products Company, LLC (“Dragon”) a motion seeking to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 

815(a). 

 Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

 We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on August 11, 2021, and became 

a final order of the Commission on September 10, 2021. On September 22, 2021, MSHA 

received partial payment of the assessment. On November 23, 2021, a delinquency notification 

was mailed to the operator. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

DRAGON PRODUCTS COMPANY, LLC 

 Docket No. YORK 2022-0016 

 A.C. No. 17-00022-539342 

45 FMSHRC Page 195
Dragon asserts that its contest of the assessment was timely mailed through certified mail, 

return receipt requested. However, MSHA did not have a record of receiving the contest of the 

assessment. Subsequently, Dragon tried to check with the postal service on the status of the 

contest but was informed that the tracking number for the package which contained its contest 

had expired. Dragon believes the postal service failed to properly deliver its contest. The 

Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure 

that future penalty contests are timely filed. 

 In addition, we note that the motion to reopen was timely filed. The Commission has 

previously held that “[m]otions to reopen received within 30 days of an operator’s receipt of its 

first notice from MSHA that it has failed to timely file a notice of contest will be presumptively 

considered as having been filed within a reasonable amount of time.” Highland Mining Co., 31 

FMSHRC 1313, 1316-17 (Nov. 2009). Here, the motion to reopen was filed on December 22, 

2021, within 30 days of the operator’s receipt of the delinquency notification, mailed on 

November 23. 

 Having reviewed Dragon’s request and the Secretary’s response, we find that Dragon 

acted in good faith. We note that the Secretary does not dispute Dragon’s assertion that the 

operator timely mailed its contest of the assessment. Dragon took precautions in sending the 

contest of the assessment by certified mail, return receipt requested, and tried to provide tracking 

information for its contest of the assessment. Dragon also timely filed its request to reopen. 

In the interest of justice, we hereby reopen this matter and remand it to the Chief 

Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the 

 

45 FMSHRC Page 196
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. 

See 29 C.F.R. § 2700.28. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

 

 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

45 FMSHRC Page 197
Distribution: 

C. Gregory Ruffennach 

Attorney-at-Law 

1629 K Street, N.W., STE 300 

Washington, DC 20036 

greg@ruffennachlaw.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 198
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, N.W., SUITE 520N 

WASHINGTON, DC 20004 

OFFICE: (202) 434-9933 / FAX: (202) 434-9949 

April 25, 2023 

DECISION APPROVING SETTLEMENT WITH SIGNIFICANT RESERVATIONS 

Before: Judge William Moran 

This case is before the Court upon a petition for assessment of a civil penalty under Section 

104(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a Motion to 

Approve Settlement. The Respondent has agreed to the proposed settlement. The originally 

assessed total amount for the citations at issue was $9,036.00 and the proposed total settlement 

amount is $1,897.00, reflecting a 79% (seventy-nine percent) overall reduction, as reflected in 

the following table: 

Citation/Order MSHA’s 

Proposed Penalty 

Settlement 

Amount 

Other modifications to 

citation/order 

9205312 $6,898 $1,393 

Citation modified to moderate 

negligence; 80% reduction in 

penalty

9204928 $1,069 $252 Citation modified to unlikely and nonS&S; 76% reduction in penalty

9205356 $1,069 $252 Citation modified to unlikely and nonS&S; 76% reduction in penalty 

TOTAL 

REVISED 

PENALTY

Original total: 

$9,036.00

Revised total: 

$1,897.00 79% overall reduction in penalty

The Citations in issue 

Citation No. 9205312 

This citation invoked 30 U.S.C. §876(b), pertaining to “Communication facilities; locations 

and emergency response plans.” The section addresses telephone service or equivalent twoSECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

CONSOL PENNSYLVANIA COAL 

COMPANY, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. PENN 2022-0129 

A.C. No. 36-07230-561904 

Mine: Bailey Mine 

45 FMSHRC Page 199
way communication facilities, which are to be approved by the Secretary or his authorized 

representative. Such communication facilities shall be provided between the surface and each 

landing of main shafts and slopes and between the surface and each working section of any coal 

mine that is more than one hundred feet from a portal. The cited subsection addresses the plan 

requirements. 

The section 104(a) citation for this now-admitted violation stated: 

The Mine Operator failed to comply with their Approved Emergency Response 

Plan (Approved 9-11-2020), in that, there were no leaky feeder line 

(communication) or tracking tags installed in the 2-K Working Section (009-0 

MMU) Alternate Escapeway (number 3 entry of 2-K) from the loading point inby 

8 crosscut outby to the 5 South Mains Right (K) Track at the number 80 crosscut 

(2420 feet in length). Therefore there was no redundant communication 

between the Primary or Alternate Escapeways and no communication or 

tracking at all in the alternate escapeway or at the Working Section refuge 

alternative/SCSR cache from the alternate escapeway. After issuance of this 

citation, the Operator removed the persons from the working faces to outby the 

loading point until the condition can be corrected. 

The Following statements are from the Approved Mine Emergency Response Plan 

and have not been complied with: 

1. Page 1, Communication, 2. Coverage Area, line b.,- The system will also 

generally provide continuous coverage along escapeways and a coverage zone 

approximately 200' feet inby and outby strategic areas of the mine. Strategic Areas 

are fixed work locations where miners are normally required to work, section SCSR 

caches, working section power centers and manned belt transfers. 

2. Page 2., 6.,- Survivability, a. The post accident communication system will 

generally provide redundant signal pathways to the surface component. b.- 

Redundancy will be achieved by two or more systems installed in two or more 

entries, or one system with two or more pathways to the surface; provided that a 

failure in one system or pathway does not affect the other system or pathway. c.,- 

Redundancy means that the system can maintain communication with the surface 

when a single pathway is disrupted. Disruptions can include major events in an 

entry or component failure. 

3. Page 3, Tracking System, 1. Performance, aiii.,- Locate Miners in escapeway at intervals not to exceed 2000 feet. iv.,- Locate miners within 200 feet of 

strategic areas. Strategic Areas are fixed work locations where miners are normally 

required to work, section mass SCSR caches, working section power centers and 

manned belt transfers. vii.,- Locate miners at the key junction in the escape-ways. 

viii.,- Locate miners within 200 feet of refuge alternatives. d.- The electronic 

tracking system will be installed in active daily traveled areas of the mine Primary 

and Secondary escapeways. 

45 FMSHRC Page 200
4. Page 5, 8. Maintenance, d. In the event of system or component failures, the 

miners will be notified of the problem. The affected miners will begin manual zone 

tracking and continue to advise the surface communication facility of their travel 

until the system is repaired. Repairs will start immediately if there is a loss in 

tracking capabilities. e.- The system will be examined weekly to verify that it is 

maintained in proper operating condition and the results of the examination will be 

entered in a record book. 

5. Page 5, 9. Purchase and Installation,- b. If there is system failure the mine 

will revert to manual tracking system that was previously used. 

 Petition for Civil Penalty at 11-13. 

 The citation was terminated the following day, with the inspector noting: 

Through a visual observation after traveling the 2K MMU 009-0 #3 entry (return) 

(Alternate Escapeway) in its entirety and having communication throughout and 

verifying through the tracking software on the Mine's surface of this inspectors 

locations, this citation is hereby terminated. The system is working in the 

previously mentioned entry/area. Secondly, the Mine Operator is carrying a 

record/ledger (weekly exam) to show the systems functioning properly. 

Id. at 13. 

The issuing inspector, who diligently recorded the aspects of the Approved Mine Emergency 

Response Plan provisions which were not complied with, listed the “Gravity” of the injury or 

illness as ‘Unlikely,’ but listed such injury or illness as “Fatal” if it were to occur. Marked as 

non-significant and substantial, nine miners would be affected. Given the multiple subjects of 

non-compliance, the inspector listed the negligence as “High.” Id.

Analysis for Citation No. 9205312 

The penalty, which was regularly assessed at $6,898.00, is now proposed to be settled at 

$1,393.00, representing an 80% reduction. This figure is apparently derived by designating the 

negligence from ‘High’ to “Moderate.’ Motion at 3. The justification for this is short, the Motion 

relating that the “Respondent has represented to the Secretary that it had assigned miners to 

install the missing equipment that is the subject of the citation, but that the work was not timely 

completed because of supply problems.” Undercutting this claim is that the inspector found five 

instances of non-compliance, yet all five violative conditions were somehow corrected the next 

day, the supply problems apparently having vanished rapidly. This is the sole basis presented in 

the motion for listing the negligence as moderate. 

In support of the Secretary’s contention, the Solicitor’s attorney looks to Vindex Energy 

Corporation, 34 FMSHRC 223, 224 (Jan. 2012) (ALJ) (“Vindex”), asserting that “[i]t is 

‘appropriate to defer to the judgment of the parties’ in arriving at a modified penalty based on 

the §100.3 tables.” Motion at 3. The Solicitor’s attorney is apparently unaware that an 

administrative law judge’s decision is not precedential. Commission Procedural Rule 69(d) 

45 FMSHRC Page 201
provides that a Judge's decision does not constitute binding precedent. 29 C.F.R. § 2700.69(d). 

Rain for Rent, 40 FMSHRC 976, 980 (July 2018), Tilden Mining, 36 FMSHRC 1965 (Aug. 

2014). The Secretary also errs in asserting that there is an evidentiary dispute regarding the 

appropriate level of negligence but offers nothing to support the notion that the negligence 

should be deemed “Moderate,” other than the vague remark about the short-lived claim of 

‘supply problems.’ Merely asserting ‘supply problems’ is apparently sufficient to carry the day. 

Citation No. 9204928 

This section 104(a) citation, invokes 30 C.F.R. § 75.1403, well known as the ‘safeguard 

standard.’ It is also a statutory provision which requires that “[o]ther safeguards adequate, in the 

judgment of an authorized representative of the Secretary, to minimize hazards with respect to 

transportation of men and materials shall be provided.” 

For this now-admitted violation, on July 8, 2022 the inspector identified multiple 

violations of the provision, noting that “[t]he 2K section (MMU 009-0) #2 entry track from 0xc - 

9.5xc has failed to be properly maintained as identified by the safeguards for the Bailey Mine in 

the aspect: 39 loose track bolts, a loose fish plate and a missing bolt are allowed to exist on 

this track. Also, at the #8 crosscut the rail is out of alignment by 1/4 inch at the time of the 

exam. 

Petition for Civil Penalty at 15 (emphasis added). 

 The citation noted that the safeguard standard had been cited 59 times in two years at the 

mine. Id.

The citation was terminated four days later, on July 12, 2022, after the identified 

violations were corrected with the inspector stating that the “operator was able to tighten the 

loose bolts with approved means, and properly adjust the rail at #8 crosscut, however will need 

to burn a hole in the rail to install the missing bolt on the right side of the track at #8 crosscut. 

Because the mine is currently operating on shutdown and minimal people are working, additional 

time is granted to get specialized manpower to this location to cut the rail to install the bolt. Id. at 

16. 

Analysis for Citation No. 9204928 

The Secretary’s attorney cites an administrative law judge decision as precedent, 

misconstrues the Commission’s decision in Mechanicsville Concrete, Inc., 18 FMSHRC 877, 

(June 1996), and does not provide ‘facts’ to support the requirements for settlement, per 

the Commission’s AmCoal decisions: 38 FMSHRC 1972, (Aug. 2016) (“AmCoal I”), 

American Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal II”) 

If the basis for the 80% penalty reduction regarding the previously discussed Citation, 

No. 9205312, is arguably justified, the same cannot be said for Citation No. 9204928. This is so 

because the offering by the Secretary does not even meet the Commission’s requirements for 

settlement motions. The justification, in its entirety, provides only that: 

 

45 FMSHRC Page 202
[t]he Secretary has elected to withdraw the S&S designation for this violation and 

resolve it as “unlikely.” The proposed penalty reduction in this settlement is based 

on the point values in 30 C.F.R. §100.3 based on the Secretary’s modification to 

the citation. The Secretary’s use of the Part 100 regular assessment tables in 

settlement is a prima facie indication that the penalty reduction is fair, reasonable, 

and adequate under the facts, and protects the public interest. 

 Motion at 3-4. 

The Secretary’s attorney cites once again to the ALJ decision in Vindex, asserting that 

“[i]t is ‘appropriate to defer to the judgment of the parties’ in arriving at a modified penalty 

based on the §100.3 tables.” Id. The inapplicability of ALJ decisions as precedent has been 

discussed above. 

 The Secretary then adds that she “possesses unreviewable discretion to withdraw an S&S 

designation,” citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879 (June 1996) 

(“Mechanicsville”) (finding “no material difference between the Secretary’s discretion on the 

one hand to vacate a citation [pursuant to RBK Construction, Inc., 15 FMSHRC 2099, 2101 (Oct. 

1993)] and his discretion on the other hand not to issue a citation in the first instance or not to 

designate a citation as S&S.”1

 Motion at 4 (“RBK”). 

 The Secretary continues to inappropriately cite Mechanicsville as authority. This Court 

and other judges have noted that Mechanicsville does not support the Secretary’s claim that she 

possesses unreviewable discretion to withdraw an S&S designation. Yet, the Secretary continues 

to assert otherwise. It’s time to be clear about the Commission’s holding in Mechanicsville. 

 At the outset of its decision in Mechanicsville, the Commission very plainly set forth the 

issue before it, stating that it “raises the issues of whether a judge on his own initiative can 

designate a violation of a mandatory safety standard to be significant and substantial.” 18 

FMSHRC 877. The Commission’s answer to the issue was equally plain, stating that it “agree[d] 

with the Secretary that the judge erred in determining on his own initiative that the violation was 

S&S.” Id. at 879 (emphasis added). Thus, the decision was expressly limited to the 

Commission’s holding that the judge erred “by adding a new finding and conclusion, i.e., that 

the violation posed a hazard to employees that was reasonably likely to result in a reasonably 

serious injury and was therefore S&S.” Id. at 880 (emphasis added). The Commission’s decision 

added nothing more to that holding. 

That the Commission’s decision in Mechanicsville did not go beyond the very words it 

employed in that decision was made additionally clear in Spartan Mining, 30 FMSHRC 699 

(August 2008). There, Spartan tried to expand Mechanicsville but the Commission would have 

nothing of it, informing that it “reject[ed] Spartan’s contention that the judge was bound by the 

Secretary’s assessment of the degree of negligence of “moderate” contained in the citation. ... 

Spartan unpersuasively relies on Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879-80 (June 

1 RBK holds only that the Secretary has the authority to vacate the citations. 15 FMSHRC 

at 2101 

45 FMSHRC Page 203
1996) (finding that judge may not designate a violation as S&S on his own initiative), to assert 

that the judge’s alteration of the citation was impermissible. However, Mechanicsville is 

distinguishable because modifying a negligence determination, as the judge did here, is 

authorized by the Mine Act, whereas inserting an S&S designation is not.” Spartan at *22 

(emphasis added). 

 Accordingly, there is no basis for the Secretary’s habitual citation to Mechanicsville as 

authority for the claim that she possesses unreviewable discretion to withdraw an S&S 

designation. It is one thing for the Secretary to argue that the Commission’s holding in 

Mechanicsville should be expanded beyond that holding, but to assert that the decision affords 

the Secretary with unreviewable discretion to withdraw such a finding is beyond the pale. Here, 

the Secretary does not present its contention as an argument. Instead, the Secretary’s attorney 

presents his position as the state of the law. It is not. 

 Attorneys have an obligation not to misstate case law. Teamsters Local No. 579 v. B & M 

Transit, Inc., 882 F.2d 274, 280 (7th Cir.1989). Rule 11 of the Federal Rules of Civil Procedure 

requires attorneys to inquire about the ... law before filing pleadings. ... an attorney who submits 

a pleading must certify that: ‘to the best of the [attorney's] knowledge, information, and belief 

formed after reasonable inquiry [the pleading] is ... warranted by existing law or a good faith 

argument for the extension, modification, or reversal of existing law.” Dzwonkoski, 2008 WL 

2163916 (May 16, 2008) (S.D. Ala. 2008) citing Howard v. Liberty Memorial Hosp., 752 

F.Supp. 1074, 1080 (S.D.Ga.1990). 

 Therefore, unless and until the Commission revises its holding in Mechanicsville, the 

Secretary, both her attorneys and her non-attorney representatives, (Conference and litigation 

representative, “CLRs,”) should cease invoking that decision for propositions not supported by 

it. 

REVISITING PRESENT COMMISSION LAW FOR SETTLEMENT MOTIONS AS 

APPLIED TO THIS MATTER. 

 Fundamentally, the Secretary’s Motion in this matter does not meet the Commission’s 

test for settlement approvals, as set forth in American Coal Co., 38 FMSHRC 1972, (Aug. 2016) 

(“AmCoal I”), and American Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal II”)

Once past the obvious preliminaries – that a motion for settlement must state the penalty 

amount originally proposed by the Secretary and the new amount the parties have agreed to pay, 

the Commission’s decision in AmCoal II sets forth the present requirements deemed sufficient 

for its judges in carrying out their “front line oversight of the settlement process” in order “to 

fulfill their duty of determining if a settlement of a penalty is fair, reasonable, appropriate under 

the facts, and protects the public interest.” Id. at 985, 987. 

 The Commission repeatedly spoke of the need for ‘factual support’ for penalty reduction. 

Id. at 989, 990. Though the Commission advised that such ‘facts’ “are not limited to facts related 

to the section 110(i) penalty criteria or to the alleged violations,” the Commission still required 

that facts be presented. Id. at 986. Accordingly, it has “required parties to submit facts supporting 

45 FMSHRC Page 204
a penalty amount agreed to in settlement.” Id. at 987. It noted, “[i]n particular, Commission 

Procedural Rule 31 requires that a motion to approve penalty settlement must include for each 

violation “the penalty proposed by the Secretary, the amount of the penalty agreed to in 

settlement, and facts in support of the penalty agreed to by the parties.” Id. 

 The Commission rejected the need for a respondent to present legitimate questions of fact 

which can only be resolved through the hearing process and also rejected that there is a need to 

show any legitimate factual disagreement. Id. at 991. As such, the Commission stated that 

“[f]acts alleged in a proposed settlement need not demonstrate a ‘legitimate’ disagreement that 

can only be resolved by a hearing. The Commission’s Procedural Rules and standing precedent 

do not contain such a requirement. Rather, the Commission has recognized that parties may 

submit facts that reflect a mutual position that the parties have agreed is acceptable to them in 

lieu of the hearing process.” Id. 

 Despite the above, the Commission’s AmCoal II decision still requires the submission of 

‘facts.’ Such facts must be “mutually acceptable facts that demonstrate the proposed penalty 

reduction is fair, reasonable, appropriate under the facts, and protects the public interest.” Id. at 

991. Here, no facts have been presented. 

It is not an exaggeration to describe the basis for the Secretary’s justification as 

essentially ‘because we can.’ Though set forth above, it is worth repeating what the Secretary 

presented here, to wit: 

[t]he Secretary has elected to withdraw the S&S designation for this violation and 

resolve it as “unlikely.” The proposed penalty reduction in this settlement is based 

on the point values in 30 C.F.R. §100.3 based on the Secretary’s modification to 

the citation. The Secretary’s use of the Part 100 regular assessment tables in 

settlement is a prima facie indication that the penalty reduction is fair, reasonable, 

and adequate under the facts, and protects the public interest. 

Motion at 3-4. 

 None of this amounts to mutually acceptable facts that demonstrate the proposed penalty 

reduction is fair, reasonable, appropriate under the facts, and protects the public interest. 

Citation No. 9205356 

This citation also invokes 30 C.F.R. § 75.1403. Issued on July 20, 2022, the inspector’s 

Condition or Practice section of the citation states: 

The Mine Operator failed to maintain an unobstructed travelway of at least 24 

inches in width on walk side of the 11-L Conveyor Belt between the outby end of 

the storage unit andthe bottom step of the 6 south Mains Left Track overcast stairs 

for a distance of 30 feet in length. Old pieces of conveyor belt were humped up in 

the air, there were 2 small rolls of conveyor belt, splicing nail buckets, splices, a 

conveyor belt cutter and splicing template filling most of the required walkway in 

45 FMSHRC Page 205
the cited area. The walkways in this area was wet, muddy and very slippery 

without having to traverse this extraneous materials. The Operator immediately 

started to clear the extraneous materials after the issuance of this citation. 

Standard 75.1403 was cited 61 times in two years at mine 3607230 (60 to the 

operator, 1 to a contractor). 

Petition for Civil Penalty at 18 (emphasis added). 

The citation was terminated on July 21, 2022, with the inspectors remarking that “[a]ll of 

the extraneous materials have been cleaned out of the cited travelway/walkway. There is now at 

least 24 inches of clear, unobstructed travelway, therefore this citation is terminated. Id. at 19. 

Analysis for Citation No. 9205356 

As the Secretary’s attorney seeks the same modifications to this citation as he did for 

Citation No. 9204928 and offers the same justification, the Court’s previous analysis applies. 

Summary: 

 As discussed above, the Secretary has cited to inapplicable precedent, by relying upon an 

administrative law judge decision, inappropriately cited to Mechanicsville Concrete, Inc., 18 

FMSHRC 877, (June 1996), for a proposition that case does not support, and failed to meet the 

Commission’s standards for an acceptable motion to approve settlement, per its decisions in 

AmCoal I and AmCoal II. 

 That said, because the Commission has, to the best of this Court’s understanding, a 100% 

approval rate for settlement motions, it has decided to approve the settlement in this instance 

because the Commission examines all settlement determinations made by its judges, and has the 

authority, per 29 C.F.R. §2700.71, to review a judge’s decision on its own motion.2

 

The Court has considered the Secretary’s Motion and approves it solely on the basis of 

the Commission’s decisions in The American Coal Co., 40 FMSHRC 983 (Aug. 2018) and 

Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) for the standard to be applied by 

administrative law judges when reviewing such settlement motions under the Commission’s 

interpretation of section 110(k) of the Mine Act. As noted, under those decisions, reasonable 

inquiry by the Court is not permitted. 

2 29 C.F.R. § 2700.71, titled, “Review by the Commission on its own motion,” provides 

“[a]t any time within 30 days after the issuance of a Judge's decision, the Commission may, by 

the affirmative vote of at least two of the Commissioners present and voting, direct the case for 

review on its own motion. Review shall be directed only upon the ground that the decision may 

be contrary to law or Commission policy or that a novel question of policy has been presented. 

The Commission shall state in such direction for review the specific issue of law, Commission 

policy, or novel question of policy to be reviewed. Review shall be limited to the issues specified 

in such direction for review. 

45 FMSHRC Page 206
Accordingly, per the Commission’s decisions on the scope of a judge’s review authority 

of settlements, the “information” presented in this settlement motion is sufficient for approval. 

WHEREFORE, the motion for approval of settlement is GRANTED. Citation No. 

9205312 is modified to moderate negligence, Citation No. 9204928 is modified to unlikely and 

non-S&S, Citation No. 9205356 is modified to unlikely and non-S&S. 

It is ORDERED that the Respondent pay the agreed-upon civil penalty of $1,897.00 

within 30 days of this order.3 Upon receipt of payment, this case is DISMISSED. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

Attorney Kyle D. Stelmack, U.S. Department of Labor, Office of the Regional Solicitor 

1835 Market Street, Mailstop SOL/22, Philadelphia, PA 19104 

Stelmack.kyle.d@dol.gov 

Craig S. Aaron, CONSOL Energy, Inc., 275 Technology Drive, Suite 101 

Canonsburg, PA 15317 craigaaron@consolenergy.com 

3 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. It is vital to include Docket and 

A.C. Numbers when remitting payments. 

45 FMSHRC Page 207
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, N.W., SUITE 520N

WASHINGTON, DC 20004

OFFICE: (202) 434-9933 / FAX: (202) 434-9949 

April 27, 2023 

 

DECISION APPROVING SETTLEMENT 

Before: Judge William Moran 

This case is before the Court upon a petition for assessment of a civil penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977. The CLR has filed a motion 

to approve settlement. The originally assessed amount was $1,189.00 and the proposed 

settlement is for $878.00. 

Citation/Order 

MSHA’s 

Proposed 

Penalty 

Settlement 

Amount 

Other modifications to 

citation/order 

9567361 $626.00 $626.00 

9567358 $563.00 $252.00 Modify to low negligence; 55% (fiftyfive percent) reduction in penalty 

TOTAL $1,189.00 $878.00 

This Motion to Approve Settlement involves two violations of 30 C.F.R. § 77.1605(a); 

both were regularly assessed, with one paid in full, and the other with a 55% reduction. The 

standard pertains to loading and haulage equipment, and its requirements can aptly be described 

as ‘clear as glass,’ because it requires that “[c]ab windows shall be of safety glass or equivalent, 

in good condition and shall be kept clean.” (emphasis added). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

GREENBRIER MINERALS, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2023-0036 

A.C. No. 46-02140-563930 

Mine: Saunders Preparation Plant 

45 FMSHRC Page 208
Citation No. 9567358; the citation with the 55% reduction in the penalty. 

 Here, the issuing MSHA inspector, Curtiss Vance III, diligently noted: 

“[t]he following windows on the Dl0R Caterpillar Dozer Co. No. 472 were not in good 

condition: 

1. The left side door window was not in good condition. The window was scratched 

on the outside and dirty in between the outer glass and inner glass. 

2. The right side door window was not in good condition. The window was 

scratched on the outside and dirty in between the outer glass and inner glass. 

3. The front window was not in good condition. The window was scratched on the 

outside and dirty in between the outer glass and inner glass. 

4. The rear window was not in good condition. The window was scratched on the 

outside and dirty in between the outer glass and inner glass. 

5. The side windows were not in good condition. The window was scratched on the 

outside and dirty in between the outer glass and inner glass. 

This dozer was being operated on the Coal Stockpile Area pushing to a underground 

feeder. Cab windows shall be of safety glass or equivalent, in good condition and shall be kept 

clean.” 

Petition for Civil Penalty at 6 

The Secretary requests Citation No. 9567358 be modified to Low negligence. The 

Respondent would argue that the window glass in the Caterpillar Dozer Co. No. 472 had been 

replaced in the past. The window glass had not been reported to be damaged on the preoperational checks. The mine management was not aware of the condition at the time of the 

inspection. Motion at 3 (emphasis added). 

Citation No 956736; the citation paid in full.

 This citation, which was issued by the same inspector and cited the same standard, 30 C.F.R. § 

77.1605(a), differed in that it involved a different piece of equipment, but it was another D10R 

Caterpillar Dozer, No. 031. Otherwise, the violation is virtually indistinguishable from Citation 

No. 9567358, described above. 

The condition or practice section of the citation informed: 

The following windows on the DlOR Caterpillar Dozer Co. No. 031 were not in good 

condition: 

1. The left side door window was not in good condition. The window was scratched 

on the outside and dirty in between the outer glass and inner glass. 

2. The right side door window was not in good condition. The window was 

scratched on the outside and dirty in between the outer glass and inner glass. 

3. The front window was not in good condition. The window was scratched on the 

outside and dirty in between the outer glass and inner glass. 

4. The rear window was not in good condition. The window was scratched on the 

outside and dirty in between the outer glass and inner glass. 

45 FMSHRC Page 209
This dozer is operated on the Coal Stockpile Area, pushing to a underground feeder. Cab 

windows shall be of safety glass or equivalent, in good condition and shall be kept clean. 

Petition for civil penalty at 8. 

Analysis 

To put it directly, the justification in this motion does not add up. As noted, these two, 

now-admitted, violations are virtually indistinguishable. The two citations were issued by the 

same inspector, on the same day, and within an hour of each other. Both pieces of equipment 

were the same: D10R Caterpillar Dozers, and they were being operated in the same area – the 

Coal Stockpile Area – and doing the same task – pushing material to an underground feeder. 

Citation No. 9567361, the one paid as regularly assessed, differs from Citation No. 

9567358, the one with a 55% penalty reduction, only in that No. 9567361 was assessed at $63.00 

more. To be clear, the inspector evaluated both violations the same – listing the likelihood of 

injury as ‘reasonably likely,’ resulting in lost workdays or restricted duty, with both denoted as 

‘significant and substantial,’ and the negligence as moderate. In fact, of the two, Citation No. 

9567361, is less egregious as it listed four distinct window locations on the equipment that were 

not in good condition, whereas Citation No. 9567358 listed five distinct window locations that 

were not in good condition. The difference for No. 9567361 is that the operator failed in 

compliance after the citation was issued to the point that a (b) order had to be issued for failing to 

demonstrate ‘good faith’ in achieving rapid compliance. 

 The Secretary makes matters worse with her position that she need not disclose the (b) 

order itself for the Commission to view, hiding the salient information from the Commission, all 

miners, and the public. One would have anticipated that the Secretary, whose obligation is to 

protect the safety and health of miners, not mine operators, would be at forefront on this issue, 

insisting on disclosure of the (b) order, not blocking it from view. That strident approach, 

blocking affected persons and entities from seeing the entire record, is inimical to the Secretary’s 

role. The Court would have rejected the Secretary’s motion for this deficiency alone but for the 

fact that its non-disclosure stance for (b) orders is before the Commission presently in another 

docket. 

 As noted, compounding this unjustified basis for the more than 50% penalty reduction in 

Citation No. 9567358 is that the affected dozer had “not good condition” issues with five distinct 

areas: the left side door window, the right side door window, the front window, the rear window 

and the side windows. And, make no mistake about it, this dozer is a large machine, weighing 

144,190 lbs, with a length of more than 25 feet and a height at 13.5 feet.1 These dimensions 

underscore the safety importance of all windows being maintained in good condition. 

 Except for the significant fact that the five identified safety deficiencies are not funny, the 

excuses offered in the motion for the large penalty reduction would be laughable. This is so 

because asserting that the glass had been replaced in the past counts for nothing in any penalty 

1 https://www.ritchiespecs.com/model/caterpillar-d10r-crawler-tractor 

45 FMSHRC Page 210
analysis. Further, the claim that the window glass had not been reported to be damaged on the 

pre-operational checks and that excuses mine management, shows only that a citation for failure 

to conduct genuine pre-op checks may have been in order. Inspectors should consider such 

citations when confronted with such claims. With every window deficient, a claim of operator 

ignorance cannot be deemed credible. Additionally, the idea that such excuses constitute 

“considerable mitigating circumstances,” the Part 100 requirement for “low negligence,”2 would 

mean that nearly all violations could qualify under such a review standard. 

 It is this Court’s view that unsupported reductions in proposed regular assessments such 

as this run counter to the Mine Act’s purposes. Congress expressed that penalties are to be of 

sufficient magnitude, i.e. “cost,” to make compliance with the safety and health standards 

preferable to non-compliance. Results such as these, with the citation identifying more 

deficiencies, involving the same bulldozer model, doing the same work at the same time, and in 

the same location, but costing far less, gives the appearance of an unwarranted discount in the 

penalty, as opposed to valid justifications for penalty reductions. 

 Despite the many concerns expressed, the Court is presently precluded from making 

reasonable inquiry when presented with settlement motions. Per the Commission’s decisions on 

the scope of a judge’s review authority of settlements, the “information” presented in this 

settlement motion is sufficient for approval. 

 Accordingly, the Court has considered the Secretary’s Motion and approves it solely on 

the basis of the Commission’s decisions in The American Coal Co., 40 FMSHRC 983 (Aug. 

2018) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) for the standard to be applied 

by Commission administrative law judges when reviewing such settlement motions under the 

Commission’s interpretation of section 110(k) of the Mine Act. 

 WHEREFORE, the motion for approval of settlement is GRANTED. Citation No. 

9567358 is modified to low negligence, with the penalty reduced to $252.00 for that violation. It 

is further ORDERED that the operator pay the penalty of $878.00 within 30 days of this order.3

Upon receipt of payment, this case is DISMISSED. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

2 30 C.F.R. §100.3, and Table X. 

3

 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. It is vital to include Docket and A.C. Numbers when remitting payments. 

45 FMSHRC Page 211
Distribution: 

Norman C. Ridley, Conference and Litigation Representative, U.S. Department of Labor, 

MSHA, 178 Thorn Hill Road, Suite 100, Warrendale, PA 15086. 

ridley.norman@dol.gov 

Lorna M. Waddell, DINSMORE & SHOHL LLP, 215 Don Knotts Blvd., Suite 310, 

Morgantown, WV 26501. lorna.waddell@dinsmore.com 

45 FMSHRC Page 212
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE N. W., SUITE 520N 

WASHINGTON, D.C. 20004-1710 

TELEPHONE NO.: 202-434-9933 

TELECOPIER NO.: 202-434-9949 

April 6, 2023 

ORDER GRANTING APPLICATION FOR TEMPORARY REINSTATEMENT 

Appearances: Sharon H. McKenna, Esq., Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, PA, Tony Oppegard, Esq., Lexington, KY, for the Complainant, Billy R. Shelton, 

Esq., Lexington, KY for the Respondent 

Before: Judge William B. Moran 

This case is before the Court upon application for temporary reinstatement filed pursuant 

to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

(“Mine Act”), and 29 C.F.R. § 2700.45 et seq. On March 1, 2023, the Secretary of Labor 

(“Secretary”) filed an Application for Temporary Reinstatement for Ronald D. Collins, 

Complainant, to his former position as Superintendent/Foreman for Next Endeavor Ventures, 

LLC at Mine NEV #1, a surface mine. 

The case was assigned to the Court on March 3, 2023. Due to schedule conflicts with the 

parties and the Court, the parties agreed that the hearing could be set beyond the ten calendar 

days provided for by Commission Rule 45. A virtual hearing, via Zoom for Government 

videoconference, was held on March 31, 2023. The parties also agreed that, should the Court 

find that the application was not frivolously brought, the date for reinstatement would be 

effective retroactively to March 22, 2023. For the reasons set forth below, the Court grants the 

application for temporary reinstatement and retains jurisdiction until final disposition of the 

complaint on the merits. 

Applicable Law 

As noted by Judge Margaret Miller, 

Section 105(c) of the Mine Act, 30 U.S.C. § 815(c), prohibits discrimination against 

miners for exercising any protected right under the Act. The purpose of this 

protection is to encourage miners ‘to play an active part in the enforcement of the 

Act,’ in recognition of the fact that ‘if miners are to be encouraged to be active in 

matters of safety and health they must be protected against ... discrimination which 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf 

of Ronald D. Collins 

 Complainant 

v. 

NEXT ENDEAVOR VENTURES, LLC 

 Respondent 

 TEMPORARY REINSTATEMENT 

Docket No. VA 2023-0023 

Mine: NEV # 1 

Mine ID: 44-07394 

45 FMSHRC Page 213
they might suffer as a result of their participation.’ S. Rep. No. 95-181, 95th Cong. 

1st Sess. 35 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human 

Res., 95th Cong. 2nd Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 623 (1978). 

Grimes Rock, 43 FMSHRC 287, 289, May 2021 (ALJ Margaret Miller) (“Grimes ALJ dec.”) 

A miner that lodges a complaint of discrimination under section 105(c) is entitled 

to ‘immediate reinstatement ... pending final order on the complaint’ as long as the 

complaint was ‘not frivolously brought.’ 30 U.S.C. § 815(c)(2). The Commission 

has stated that the scope of a temporary reinstatement proceeding is therefore 

‘narrow, being limited to a determination by the judge as to whether a miner’s 

discrimination complaint is frivolously brought.’ Sec’y of Labor on behalf of Price 

v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738

(11th Cir. 1990). This standard reflects a Congressional intent that ‘employers

should bear a proportionately greater burden of the risk of an erroneous decision in

a temporary reinstatement proceeding.’ Jim Walter Res., Inc. v. FMSHRC, 920 F.2d

738, 748 (11th Cir. 1990).

Grimes ALJ, Id.

In a temporary reinstatement hearing, a judge is tasked with evaluating the evidence 

of the Secretary’s case and determining whether the miner’s complaint appears to 

have merit. Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC, 31 

FMSHRC 1085, 1089 (Oct. 2009). The Secretary must prove only a nonfrivolous 

issue of discrimination and need not make a full showing of its prima facie case of 

discrimination. Id. at 1088. Nevertheless, it may be ‘useful to review the elements 

of a discrimination claim’ when gauging whether a claim is nonfrivolous. Id. Those 

elements include (1) that the complainant was engaged in a protected activity and 

(2) that the adverse action complained of was motivated in part by that activity.

Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786

(Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor

on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). The

Secretary may establish the motivational nexus between the protected activity and

the adverse action with indirect or circumstantial evidence such as (i) the

employer’s knowledge of the protected activity, (ii) hostility or animus towards the

protected activity, (iii) coincidence in time between the protected activity and the

adverse action, and (iv) disparate treatment of the complainant. Sec’y of Labor on

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981).

While it is true that a judge may consider these factors, a temporary reinstatement 

case remains ‘conceptually different’ than the underlying case of discrimination. 

Jim Walter Res., Inc. v. FMSHRC, 920 F.2d at 744. The Mine Act envisions an 

‘expedited basis’ for a temporary reinstatement proceeding that does not permit full 

discovery or complete resolution of conflicting testimony. 30 U.S.C. § 815(c)(2); 

Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC, 34 FMSHRC 1875, 

1879 (Aug. 2012). In fact, Commission case law indicates that resolving credibility 

issues or conflicts in testimony is beyond the scope of a temporary reinstatement 

45 FMSHRC Page 214
hearing. Williamson, 31 FMSHRC at 1089. Similarly, a judge is not permitted to 

weigh the operator’s evidence against the Secretary’s evidence when determining 

whether to grant temporary reinstatement. Id. at 1091. 

Grimes Rock, 43 FMSHRC 287, 289-290, May 2021 (ALJ Margaret Miller) 

A wrinkle in Temporary Reinstatement Applications 

Judge Miller took note that “[t]he Ninth Circuit recently rejected the Pasula-Robinette

framework in Thomas v. CalPortland Co., 993 F.3d 1204 (9th Cir. 2021). Specifically, the Court 

struck down the requirement that the adverse action was motivated ‘at least partially’ by the 

protected activity in favor of a but-for causation standard. Id. at 1209-11.” Grimes Rock, 43 

FMSHRC 287, n.1. (emphasis added). 

In the same Grimes Rock case, the Commission subsequently spoke about the “but-for” 

standard in temporary reinstatement applications. Grimes Rock, 43 FMSHRC 299, 301 (June 

2021) (Commissioners Althen and Rajkovich, Chairman Traynor concurring in result only that 

the complaint was not frivolously brought). There, the majority, consisting of Commissioners 

Althen and Rajkovich, noted: 

The Commission has recognized that the ‘scope of a temporary reinstatement 

hearing is narrow, being limited to a determination by the Judge as to whether a 

miner’s discrimination complaint is frivolously brought.’ See Sec’y of Labor on 

behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d,

920 F.2d 738 (11th Cir. 1990) (“JWR”); Sec’y of Labor on behalf of Jones v. 

Kingston Mining, Inc., 37 FMSHRC 2519, 2522 (Nov. 2015). The ‘not frivolously 

brought’ standard reflects a Congressional intent that ‘employers should bear a 

proportionately greater burden of the risk of an erroneous decision in a temporary 

reinstatement proceeding. JWR, 920 F.2d at 748, n.11. 

At a temporary reinstatement hearing, the Judge must determine ‘whether the 

evidence mustered by the miner[] to date established that [his or her] complaint[] 

[is] nonfrivolous, not whether there is sufficient evidence of discrimination to 

justify permanent reinstatement.’ JWR, 920 F.2d at 744. As the Commission has 

recognized, ‘[i]t [is] not the Judge’s duty, nor is it the Commission’s, to resolve 

the conflict in testimony at this preliminary stage of the proceedings. Sec’y of 

Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 

1999). 

Id. at 301. 

As the majority, Commissioners Althen and Rajkovich then elaborated about the 

scope of temporary reinstatement proceedings in light of the but-for causation 

standard articulated by the Ninth Circuit, stating: 

Upon adopting the ‘Marion approach’ in Secretary of Labor on behalf of Cook v. 

Rockwell Mining, LLC in which the scope of a temporary reinstatement hearing 

was at issue, the Commission held that a temporary reinstatement hearing must be 

a full evidentiary process. 43 FMSHRC____, slip op. at 9, No. WEVA 2021-0203

45 FMSHRC Page 215
(Apr. 23, 2021), citing Sec’y of Labor on behalf of Kevin Shaffer v. Marion 

County Coal Co., 40 FMSHRC 39, 47 (Feb. 2018) (separate opinion of Acting 

Chair Althen and Commissioner Young). During the proceeding, a Judge must 

consider any evidence which is relevant to the adverse action. Id. In other 

words, ‘all evidence relating to the adverse employment action is relevant in 

a temporary reinstatement proceeding -- even that which seems directed to 

an affirmative defense or rebuttal of the miner’s claim.’ Id. (emphasis added). 

The Marion approach gives operators an opportunity to provide evidence that the 

complaint was frivolously brought. 43 FMSHRC___, slip op. at 9 (emphasis 

added [by majority]). It is permissible, therefore, for a Judge to consider 

evidence regarding allegations of a miner’s unprotected misconduct to 

determine if the miner has a viable case. However, such evidence may not 

serve as a basis for denial of reinstatement if it requires resolution of a 

credibility determination. Id. at 10. In a temporary reinstatement hearing, 

the Judge may not resolve credibility disputes or make rulings on credibility.

Id. (emphasis added). 

The reference above to the ‘Marion approach’ requires some background in order to 

appreciate its foundation. As just noted, in Grimes Rock, 43 FMSHRC 299, (June 2021), the twomembers constituting the majority in that case referenced three cases: Sec’y of Labor on behalf 

of Kevin Shaffer v. Marion County Coal Co., 40 FMSHRC 39, 47 (Feb. 2018) (separate opinion 

of Acting Chair Althen and Commissioner Young) (“Marion”), Thomas v. CalPortland Co., 993 

F.3d 1204 (9th Cir. April 14, 2021), (“CalPortland”) and Secretary of Labor on behalf of Cook

v. Rockwell Mining, LLC 43 FMSHRC 157 (Apr. 23, 2021) (“Cook v. Rockwell Mining”).

Marion, the source for the ‘Marion approach,’ involved a temporary reinstatement 

proceeding. It is noteworthy because, though four Commissioners were involved in that decision, 

separate opinions were issued – Commissioners Jordan and Cohen in one and Acting Chairman 

Althen and Commissioner Young in the other. 

By dubbing the views of two commissioners as the ‘Marion approach,’ Commissioners 

Rajkovich and Althen in effect elevated the opinion of two commissioners over the equally 

viable opinions of Commissioners Jordan and Cohen. This is significant because the two sets of 

Commissioners expressed very different views about what is needed to establish that an 

application is not frivolously brought. 

For their part, Commissioners Jordan and Cohen expressed that the ‘non-frivolously 

brought standard’ in a section 105(c)(2) action may be likened to the “reasonable cause to believe” 

standard applied in other statutes. Marion at 41-42. They added that “[a]n important point to 

remember in reviewing a district court’s determination of reasonable cause is that the district judge 

need not resolve conflicting evidence between the parties. Id. at 42 (emphasis added). 

Speaking to the temporary reinstatement hearing itself, they noted that “the Judge must 

determine ‘whether the evidence mustered by the miner to date established that [his or her] 

complaint [is] nonfrivolous, not whether there is sufficient evidence of discrimination to justify 

45 FMSHRC Page 216
permanent reinstatement. ... [and that] [i]t [is] not the [J]udge’s duty, nor is it the Commission’s, 

to resolve the conflict in testimony at this preliminary stage of proceedings. Id. (emphasis added). 

Last, those Commissioners remarked that evidence that the miner “was discharged for 

unprotected activity relates to the operator’s rebuttal or affirmative defense. The Judge will need 

to resolve the conflicting evidence in the context of the full discrimination proceeding. Id. at 44. 

In contrast, Commissioners Althen and Young agreed that the Secretary’s burden was to 

show that the claim is not frivolous, but they added that to make that showing it is necessary to 

prove it by a preponderance of the evidence. Id. at 46. From their perspective that translated to 

the Secretary showing that that “the Secretary has demonstrated that it is more probable than not 

that the claim is not frivolous.” Id. Under that view, those Commissioners added to the 

previously required showing, expressly stating that “[t]he burden of proof in a temporary 

reinstatement case, therefore, contains two legal standards: “preponderance of the evidence” 

and “non-frivolous.” Id. (emphasis added). 

Commissioners Althen and Young expanded upon the application of their view, stating 

that “all evidence relating to the adverse employment action is relevant in a temporary 

reinstatement proceeding -- even that which seems directed to an affirmative defense or rebuttal 

of the miner’s claim. While we agree that the Judge should not make credibility and value 

determinations of the operator’s rebuttal or affirmative defense, if the totality of the evidence or 

testimony admits of only one conclusion, there is no conflict to resolve. It is the Judge’s duty to 

determine whether the claim is frivolous, in light of undisputed or conclusively-established facts 

and inescapable inferences.” Id. at 47. (emphasis added). 

The second of the three cases cited by Commissioners Althen and Rajkovich in Grimes

was Thomas v. CalPortland Co., 993 F.3d 1204 (9th Cir. April 14, 2021). It should be recalled 

that Grimes was a temporary reinstatement case. In contrast, CalPortland was not a temporary 

reinstatement case. Instead, the Ninth Circuit’s decision was a 105(c)(3) proceeding, often 

distinguished as a ‘full’ discrimination proceeding.1

 In matters of discrimination, the Mine Act 

clearly distinguishes between temporary reinstatement and full discrimination proceedings. See,

30 U.S.C. §§ 815 (c)(2) and (c)(3). 

It is certainly true that the Ninth Circuit rejected the Pasula-Robinette framework in a full 

discrimination action.

2

 However, nowhere in that decision will one find the words frivolous, 

1

 The ‘full discrimination proceeding, also referred to as the “full evidentiary hearing” 

and ‘the later discrimination proceeding,’ are all terms used to distinguish such proceeding from 

the temporary reinstatement proceeding. See, e.g., Sec'y of Labor on behalf of Billings v. 

Proppant Specialists, LLC, 33 FMSHRC 2383, 2385 (Oct. 2011) and Sec’y of Labor on behalf of 

Kevin Shaffer v. Marion County Coal Co., 40 FMSHRC 39, 44 (Feb. 2018) 

2

 The Ninth Circuit described the Pasula-Robinette framework as one where “a miner 

proves a prima facie case of discrimination by showing that: (1) he engaged in protected activity 

and (2) was subject to an adverse action motivated “at least partially ... by his protected activity. 

... ” The mine operator may then rebut the prima facie case by showing: “(1) the miner was not 

engaged in any protected activity, or (2) the adverse employment action was not even partially 

(continued...) 

45 FMSHRC Page 217
temporary, or reinstatement or remedial. Again, the reason those words are absent is simple – 

that case did not involve temporary reinstatement. As such, any ‘but-for’ references, are 

applicable only in a full discrimination proceeding, and therefore inapplicable in the very distinct 

temporary reinstatement proceeding. 

 The last of the three decisions referenced by the two-members constituting the majority 

in Grimes Rock, 43 FMSHRC 299, (June 2021) was Sec. obo Cook v. Rockwell Mining, 43 

FMSHRC 157 (April 2021). That case involved a temporary reinstatement decision by the 

Commission, which produced an interesting result. Two Commissioners, Chairman Traynor and 

Commissioner Rajkovich, found that the complaint was not frivolous. Commissioner Althen 

voted to remand the matter “for the full hearing to which [Rockwell Mining] was entitled.” Id. at 

171. In that respect, Commissioner Rajkovich agreed with Commissioner Althen that the judge 

failed “to conduct a full hearing by excluding evidence offered by the respondent to prove it 

terminated the complainant as a result of a gross safety violation. Such evidence was relevant to 

the respondent’s claim of no showing of animus and that unprotected activity supported the 

termination. The evidence was relevant and admissible. The failure to hear this evidence was an 

error.” Id. at 169. Though Commissioner Rajkovich’s decision appeared to have duality, 

agreeing with the conclusion that the complaint was not frivolous, while also agreeing with 

Commissioner Althen about the proper scope of a temporary reinstatement proceeding, he 

determined that the failure regarding the scope of the hearing was ‘harmless.’ Id. at 158, 167. 

 In reaching agreement with Commissioner Althen on the scope of a temporary 

reinstatement proceeding, Commissioner Rajkovich looked to Sec’y of Labor on behalf of 

Shaffer v. Marion County Coal Co., 40 FMSHRC 39 (Feb. 2018) as the law of the Commission. 

As discussed above, in that decision two Commissioners, Acting Chair Althen and 

Commissioner Young, held that “all evidence relating to the adverse employment action is 

relevant in a temporary reinstatement proceeding -- even that which seems directed to an 

affirmative defense or rebuttal of the miner’s claim.” Id. at 47. 

As also noted above, there were two separate opinions issued in Marion. Commissioners 

Jordan and Cohen did not buy into the views regarding the proper scope of the temporary 

reinstatement proceeding, as expressed by Commissioners Althen and Young. Thus, on the scope 

issue, there was no definitive Commission decision in Marion. It was in Cook v. Rockwell 

Mining, 43 FMSHRC 157 (Apr. 23, 2021) that Commissioner Rajkovich dubbed the views of 

Commissioners Althen and Young as “the Marion approach.” Id. at 165. Accordingly, in 

Rockwell Mining, the views of Commissioners Althen and Rajkovich, adopted “the Marion

approach” which then became the law of the Commission. Id. at 158. 

2

 (...continued) 

motivated by the miner’s protected activity.” Or, if the mine operator cannot rebut the prima 

facie case, it may assert an affirmative defense by demonstrating—by a preponderance of 

evidence—that: (1) the adverse action was also motivated by the miner’s unprotected activity; 

and (2) the adverse action would have been taken in response to the unprotected activity alone.” 

citing Secretary ex rel. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (1980), rev’d 

on other grounds sub nom., Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). 

CalPortland at 1208. 

45 FMSHRC Page 218
The Court notes that the Application for Temporary Reinstatement in this matter, 

Secretary obo Ronald Collins, involves a mine located in Virginia. As such, apart from 

Commission law, when consulting decisions from the United States Courts of Appeals, it is the 

Fourth Circuit Court of Appeals that one looks to for applicable law. Nevertheless, this decision 

encompasses both the Ninth Circuit’s expression as well as the Fourth Circuit’s and follows the 

Commission’s decision in Grimes Rock, 43 FMSHRC 299, (June 2021), instructing application 

of the but-for review 

Here, out of an abundance of caution, the Court applies the traditional test3

 for 

determining if an application for temporary reinstatement is frivolous, but in addition applies the 

but-for standard expressed in Thomas. Both applications produce the same result: the 

Secretary’s Application for temporary reinstatement of Ronald D. Collins is not frivolously 

brought. 

JOINT STIPULATIONS 

1. Next Endeavor Ventures, Inc., is and was at all relevant times through this proceeding, 

the operator of Mine #1, Mine ID number 44-07394, located in Keokee, Virginia. 

2. Mine #1 is a mine as defined in Section 3(h) of the Mine Act, 30 U.S.C. § 802(h). 

3. At all times relevant to this proceeding, products of Next Endeavor Ventures, Inc., Mine 

#1 entered commerce, are the operations of products thereof of affecting commerce, 

within the means and scope of Section 4 of the Mine Act, 30 U.S.C. § 803. 

4. Next Endeavor Ventures, Inc., is an operator as defined in Section 3(d) of the Mine Act, 

30 U.S.C. § 802(d), and is person as defined Section 3(f) of the Mine Act, 30 U.S.C. § 

802(f). 

5. Ronald Collins was previously employed by Next Endeavor Ventures, Inc. Ronald 

Collins is a miner within the meaning of Section 3(g), Mine Act, 30 U.S.C. § 302(g). 

6. Ronald Collins was terminated from Next Endeavor Ventures, Inc., on November 19, 

2022. 

3

 The elements of a discrimination claim are useful guideposts in temporary reinstatement 

cases. Accordingly, the Court looks to whether the alleged adverse action occurred “because [a] 

miner ... filed or made a complaint ... including a complaint notifying the operator ... of an 

alleged danger or safety or health violation in a ... mine ... or because of the exercise by such 

miner ... of any other statutory right afforded by this chapter.” 30 U.S.C. § 815(c)(1). Stated 

differently, a prima facie case of discrimination under section 105(c) of the Act, a complaining 

miner bears the burden of establishing (1) that he engaged in protected activity and (2) that the 

adverse action complained of was motivated in any part by that activity. Sec'y of Labor on behalf 

of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds, 663 

F.2d 1211 (3rd Cir. 1981); Sec'y of Labor on behalf of Robinette v. United Castle Coal Co., 3 

FMSHRC 803 (April 1981). 

45 FMSHRC Page 219
7. Next Endeavor Ventures, Inc., is subject to the jurisdiction of the federal mine safety and

health review Commission. The presiding administrative law judge has the authority to

hear this case and issue a decision regarding this case, pursuant to § 105 of the Act, 30

U.S.C. § 815, as amended.

SUMMARY OF THE TESTIMONIAL EVIDENCE 

As mentioned above, a virtual hearing, via videoconference, was held on March 31, 2023. 

The hearing had but one witness, the Applicant/Complainant Ronald Dwayne Collins. He was 

last employed on November 19, 2022 and his employer was Next Endeavor Ventures (“NEV”). 

Tr. 36. The mine is a surface coal mine and is nonunion. Tr. 144. Collins has worked as a miner 

for 37 years and holds various certifications related to mining, including a first-class mine 

foreman, service foreman and an MSHA instructor card. Tr. 37. His employment with NEV 

began on August 29, 2022 at the NEV #1 mine. He was employed as a foreman. Tr. 39. As 

foreman his responsibilities included compliance with all MSHA and Virginia Energy safety 

regulations, the latter encompassing the Virginia Division of Mines, Minerals and Energy. Tr. 

41. His supervisor was Wilk Renfroe. On August 29, 2022, Collins first day on the job, he had an

accident, crushing one of his fingers. It required treatment at a medical facility, but he did not

miss work because of it. Subsequently, a state inspector contacted Collins, asking if the accident

had been reported. Eventually it was reported but, as it was filed late, the mine received both a

state and federal violation. Tr. 46. About two to three days after Collins’ accident, the State

closed the mine for not having liability insurance. Tr.47.4

 Collins stated that as of the date of the

hearing, the mine has yet to pay the medical bills arising from his workplace injury. Tr.49.

Collins then was asked about an MSHA inspection subsequent to his injury. This 

involved Brandon and Jonas Fleming. The two had been hired to run an auger at the mine. Tr. 

52. Collins terminated the Flemings because, he alleged, the mine did not have an approved State

and Federal ground control plan. Tr. 53-54. Collins stated that Renfroe was upset with him over

the auger issue and the termination of the Flemings. Tr. 56-57. Significantly, Collins testified

that Renfroe told him “that he needed that [work for] coal [ ] production, that [Collins] was

gonna cost everybody their jobs, and that he was highly upset. If [Collins] didn't get with his

program, [he’d] be terminated.” Id. Collins stated that from that point on Renfroe was hostile

towards him. Tr. 57.

Around October 28, 2022, Renfroe and Collins had a conversation about a new 

employee, Jeff Patterson, who would be operating an excavator. Tr. 58. Renfroe advised Collins 

that he needed Patterson to work on that weekend. Collins inquired if Patterson had his MSHA 

and State training and Renfroe advised he, Renfroe, would worry about that but that Patterson 

had the certifications. Renfroe had a similar response to Collins’ inquiring about whether 

Patterson had his preemployment drug test. Tr. 58. Without showing him documentation on 

those issues, which included showing that MSHA and state training had been done, Collins 

advised that he would not be signing that the employee was safe to work. Tr. 58-59. When 

Renfroe advised that he was going to work the Patterson anyway, Collins informed that he would 

not be a part of that and would not physically remain on the mine site. Tr. 63, 75. Renfroe and 

4

 There were questions involving the mine’s workers’ compensation and whether the 

mine had a lapse in coverage and whether that impacted Collins’ coverage for his injury. The 

Court considers this to be tangential to the issues in this proceeding. 

45 FMSHRC Page 220
Collins had a heated exchange over these issues, and Collins maintained that Renfroe told him 

that he “was hindering his production ability with safety regs -- he said I was too strict on safety, 

and he was very belligerent about it. And I told Mr. Renfroe I was just trying to follow the letter 

of the law. He didn't like that.” Tr. 72. Thus, Collins had multiple objections to allowing 

Patterson to work – he didn’t have his Virginia miners’ card, nor his drug test, nor his new 

employee miner training, nor his hazard and task training. Tr. 76. Because of those failings, 

Collins did not report for work on November 4, 2022. Id. 

Following that, Collins received a telephone call from a state mine official, inquiring if he 

was aware that an employee was working at the mine illegally and that Collins’ signature was on 

the pre-shift book. Collins informed that he had not been at the mine on that date and had not 

signed the pre-shift book. Tr. 79. Mr. Patterson was then removed from the mine site. Tr. 80. The 

state also issued a closure order at that time. Tr. 81. 

On November 7, 2022, Collins went to the mine site and at that time read the alleged 

violation connected with the closure order. Tr. 84. The Virginia inspectors informed Collins that 

they were lifting the closure order but that stipulations were associated with the reopening.5 Id.

Collins alleged that on November 7th Renfroe’s reaction to Collins’ contacting the State mining 

agency about the preshift book issue as “the straw that broke the camel’s back.” Tr. 89, 95, 97. 

Collins reiterated to Renfroe that he would not be coming to work if Patterson was working. Tr. 

97. 

Collins and Renfroe had several heated conversations during the days in issue for this 

matter. In one, Collins asserted that Renfroe advised him that “listen you're [i.e. Collins] trying 

to be work safe is not going to work with this organization. I'm going to have to wash my hands 

of you. I'm going to have to move on. It's just getting to where it's unbearable.” Tr. 101. 

Collins also asserted that on November 17, 2022,6

 he had a conversation with JD 

Harrison, who was identified as a future foreman, along with Kelly Willis. Tr. 102. On that day, 

Collins asked Harrison if he had all his paperwork in order. According to Collins, Harrison 

responded that Renfroe said he was good to go. Tr. 103. Collins determined that Harrison did not 

have any of that paperwork. Tr. 104. Though Harrison maintained that inspector Herschel 

Fleming, a state inspector, informed that no additional drug test was needed. Tr. 104, 107. Upon 

checking with the inspector, Harrison’s contention was rejected, and he had to leave the mine 

property. Tr. 105. Renfroe was angry with Collins requiring that Harrison have a drug test. 

Collins stated that during this exchange, Refroe uttered expletives and that he had to get rid of 

5

 There were allegations swirling about the issue of whether Collins or someone else 

signed the preshift book. It is unnecessary to resolve this issue in the context of the temporary 

reinstatement application, as the central issue remains – is this application for reinstatement 

frivolous? 

6

 Collins and Renfroe had another dispute on November 17. This related to whether an 

excavator required a cage to be installed on the machine. Tr. 116. Whether the excavator in fact 

required a cage was not resolved at the reinstatement hearing nor was the issue necessary to 

resolve. The only purpose in the context of the proceeding is to show yet another safety-related 

dispute between Collins and Renfroe. 

45 FMSHRC Page 221
Collins. Tr. 106. Harrison did leave the mine to get a drug test. Tr.108. The following day 

Collins saw Harrison doing his training with Gary Whisman. Tr. 115. 

In yet another incident, this time on November 18th, Collins observed an employee 

running a dozer with no one else present. Tr. 119. When Collins inquired of the employee 

whether he had his training and certifications, and drug test, the employee answered that he did 

not. Tr. 120. Collins had this employee leave the mine site as well. Tr. 120-121. However, not 

long after, Collins saw the same employee at the site. Not long after the second confrontation, 

the employee was back again, but on this occasion another employee was watching the miner 

operate the dozer. Tr. 121. Renfroe told Collins to leave the employee alone and if Collins didn’t 

like it, Renfroe told him he could “go to the house,” mine parlance for being fired. Tr. 121.7

On Saturday, November 19, 2022, Collins had a phone conversation with Jeff Patterson, 

at which time he was informed that the mine didn’t need his services anymore. Tr. 129. Collins 

was also asked about one of the mine’s owners, whom he identified as Emma. He was unsure if 

her last name was Vasquez or Marquez. Tr. 132. In any event, Collins met her at the mine on one 

occasion sometime in the middle of October that year when a State inspector was present as a 

complaint had been called regarding the mine. Collins recounted that Emma remarked that in her 

view there was a ‘mole’ at the mine and if she found out who it was, that individual would be 

fired. Tr.133. Renfroe too, Collins asserted, made a similar remark – if the mine found out “who 

was tipping the inspectors off on the safety issues” that person would be terminated. Tr. 134. 

Later, Renfroe told Collins that he suspected Collins was the person making the complaint. Tr. 

135. 

During the hearing there was also a reference to a Ms. Kayleigh Mulkey. Collins knows 

her. Tr. 140. Ms. Mulkey was never employed at the Respondent’s mine during the time of 

Collins employment there. Id. Instead, she was employed with a nearby mine, A&G Coal Corp. 

Tr. 140-141. This subject arises in the context of the Respondent’s Answer to the reinstatement 

application wherein it alleges that Collins sexually harassed a woman in violation of the mine’s 

sexual harassment policy. Respondent’s Answer, Sixth Defense. 

In that connection, Collins was asked about his employment packet when he began 

working for the Respondent. He contended that he never saw a sexual harassment policy as part 

of that packet. Tr. 141. He also denied ever having any conversations with the Respondent’s 

ownership or management about that subject. Tr. 141-142. Later, Collins stated, he received the 

employment packet again via e-mail. One was sent to him by an administrative assistant with the 

mine, Amy Cutshaw. Tr. 142. Collins stated that when he was terminated by the Respondent, 

Mr. Patterson never told him that he was fired because of sexual harassment. Tr. 147. 

On cross-examination, Collins agreed that Renfroe does not need a miner’s card because 

he doesn’t work on the site and because he is part of management. Tr. 151. Respondent’s 

7

 It is noted that during the hearing there were a few occasions when the exact date of an 

event was unclear. The Court has two observations about this. First, the exact dates were not 

crucial to the determination in this hearing – whether Collins’ claim was non-frivolous. Second, 

of far greater importance, is that Mr. Collins had a number of safety issues while employed with 

the mine. The Respondent offered no witnesses to contradict Mr. Collins claims in that regard, 

leaving its challenges solely to the cross-examination of the Applicant. 

45 FMSHRC Page 222
attorney questioned Collins about the particulars of the mine’s ground control plan vis-à-vis the 

excavator and its proximity to the wall. Tr. 151-153. However, the Court would comment that 

such questions are extraneous in the context of a temporary reinstatement application because 

Collins was at least raising a safety issue. There is no indication in the record that his concern 

was pretextual or made in bad faith. 

Collins was also questioned by Respondent’s counsel about his first discrimination report 

and the subsequent discrimination report he signed some three weeks later. Tr. 156- 158. 

Respondent’s counsel noted that the second report (i.e. Collins’ amended complaint) added 

claims that were not made in his initial complaint. It is true that Collins filed an amended 

complaint on December 22, 2022, and that he added grounds for his complaint in that document. 

At the hearing, Collins testified to the grounds listed in his initial complaint and those asserted in 

his amended complaint. The Court would note that it is guided by the testimony at the hearing 

with regard to its assessment of Mr. Collins’ testimony about his alleged safety issues, which 

assessment does not involve credibility determinations. Some areas of cross-examination, such 

as whether Collins submitted bills regarding his finger injury to Next Endeavor are not pertinent 

to the frivolous issue here. 

Respondent’s counsel also questioned Collins regarding his issues concerning employee 

training certifications and whether, for those tasks he could act as an instructor, he could’ve 

conducted the training himself. Two observations are made about this line of inquiry. First, 

Collins denied that he was certified to do all of the required training. Second, according to 

Collins’ testimony, the dispute was connected with Renfroe’s irritation that Collins was raising 

the training issues. At least on its face, that relates to the issue of whether Renfroe was upset with 

Collins’ safety concerns, an issue not to be resolved in the temporary reinstatement proceeding. 

It is true enough, as Respondent’s Counsel noted, that Collins’s complaint, per the 

Secretary’s Exhibit B, did not contain his allegations that Mr. Renfroe told him that this was the 

“last straw, or Wilk Renfroe cussing you, or Wilk Renfroe doing this or Wilk Renfroe bringing 

people to the mine site that weren't properly trained, or Wilk Renfroe bringing people to the site 

that didn't have their drug test,” Tr. 164- 165. The Court is again guided by Collins’ testimony at 

the hearing, which was effectively augmented by the absence of any rebuttal testimony, as the 

Respondent did not present any witnesses.8

In what the Court views as a subject that is not and cannot be resolved at this stage of 

Collins’ safety complaint, Respondent’s Counsel’s foray into whether Collins was terminated for 

sexual harassment, it is noted that much time was expended concerning the location of another 

mine, which mine, it was conceded, was not part of Next Endeavor Ventures’ operations. This 

was an attempt to somehow link Ms. Kaleigh Milkey, an employee of that other mine, with the 

sexual harassment claim Respondent was making against Collins. Tr. 165- 192. Being generous, 

the Court would say that, at least for the purposes of the temporary reinstatement application, 

this whole line of questioning went nowhere. 

8

 Respondent’s Witness List identified four individuals: Michael Hughes, the MSHA 

investigator for this matter, the Complainant, Mr. Collins, Wilk Renfroe and Jeff Patterson. As 

noted, the only witness at the hearing was Ronald Collins. 

45 FMSHRC Page 223
SUMMARY AND ADDITIONAL FINDINGS 

The following observations are made about the detailed testimony from Mr. Collins, as 

set forth above. None of these observations involve credibility determinations by the Court. 

Instead, they are made strictly in the context of whether Collins’ application for temporary 

reinstatement was frivolously brought. To be clear, the Court finds, without reservation or 

hesitation, that Collins application is not frivolous. Stated another way, the totality of the 

evidence or testimony admits of only one conclusion – Collins’ complaint is not frivolous. 

Collins raised several health and safety concerns to management. Each constituted 

protected activity. Some of these issues were also brought to the attention of the mine safety 

division within the state of Virginia as well as with MSHA. A miner’s raising a safety or health 

issue of any sort is protected, whether tied to a particular provision under state or federal mining 

law or not. For example, as detailed above, Collins raised a safety concern with Wilk Renfroe 

concerning: an employee who did not have a pre-employment drug screening; the failure of an 

employee to have a Virginia miners card; and an alleged failure to have the requisite miner 

training before starting work. 

There was also an issue related to the safety concerns Collins raised. This relates to 

whether Collins in fact signed the book on a given day or whether his signature was forged. That 

issue has not been resolved but it does tend to show possible employer animus towards Collins 

attributable to his refusal to sign the books. There was also an issue over the mine’s alleged 

failure to file an accident report with MSHA in connection with an injury Collins incurred on the 

job. 

Further, was also testimony from Collins that, on more than one occasion, he was 

admonished for not going along with the mine’s wish that certain safety or health requirements 

be overlooked. Chiefly, these disputes involved Collins and Mr. Renfroe. The Court notes that 

Renfroe was present during the entire temporary reinstatement hearing, as the Respondent’s 

designated company representative. This means that Renfroe heard nearly all of the testimony 

from Collins.9

 Yet, at the conclusion of the testimony from Collins, and noting that Collins was 

the sole witness for the Secretary, the Respondent elected to forego presenting testimony from 

any other witness, limiting its effort to cross-examination of Collins. 

The Court notes and finds that the safety and health issues Collins testified about all 

occurred during a short period of time before Collins was terminated from employment with the 

mine. Therefore, a nexus established between Collins’ protected activity and the adverse action 

– termination of his employment with NEV. Respondent’s contentions are in the nature of 

claimed affirmative defenses and do not impact the issue in a temporary reinstatement 

proceeding. 

Respondent contended that the Secretary didn’t carry its burden of proof in this 

Application for temporary reinstatement. In making that argument, Respondent asserts that based 

on Mr. Collins first complaint he asserted only two grounds – that his hospital bills were not paid 

9

 There was a very brief period of time, involving only minutes, when Mr. Renfroe was 

not present during the virtual hearing, but Respondent’s Counsel did not request that the hearing 

testimony pause until Renfroe returned. 

45 FMSHRC Page 224
and the issue of whether his signature was fraudulently in the preshift book. The Court notes that 

nothing prohibits a complaint from being amended. 

Respondent also contends that failure to have drug testing or the certificate to show the 

testing was done, is not a safety issue and that Collins other safety issues, as set forth above, are 

not cognizable. With regard to the latter, the Court notes that a miner need only have a 

reasonable, good faith belief in a safety hazard. See, e.g, Secretary of Labor on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, Apr. 1981), Gilbert v. FMSHRC, 866 F.2d 

1433 (D.C. Cir. 1989). Respondent further maintains that Collins’ text messages to Ms. Mulkey, 

an employee at another mine, constituted sexual harassment and constituted the basis for his 

termination. 

CONCLUSION 

Upon consideration of the testimony of Ronald D. Collins, the Court finds that the 

testimony and exhibits in support of this application for temporary reinstatement amply support 

that it is not frivolously brought. The Court finds that the Complainant has raised a non-frivolous 

issue as to each element of the prima facie case and finds that, under the traditional non-frivolous 

test as well as any but-for analysis that may be applied, Complainant more than met his burden 

of proof. 

ORDER 

The Application for Temporary Reinstatement is hereby GRANTED. It is ORDERED 

that Ronald D. Collins be temporarily reinstated, retroactive to March 22, 2023 to the position 

he held on the date of his discharge from Next Endeavor Ventures, LLC at the NEV #1 mine. 

This ORDER shall remain in effect until such time as there is a final determination in 

this matter by hearing and decision, approval of settlement, or other order of this court or the 

Commission. The Court retains jurisdiction over this temporary reinstatement proceeding. 29 

C.F.R. § 2700.45(e)(4). The Secretary shall provide a report on the status of the underlying 

discrimination complaint as soon as possible. 

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

45 FMSHRC Page 225
Distribution, via email: 

Sharon McKenna, Esq. 

U.S. Dept. of Labor 

Office of the Regional Solicitor 

1835 Market Street 

Mailstop SOL /22 

Philadelphia, PA 19103-2968 

Mckenna.sharon.h@dol.gov 

Ronald Collins, Claimant 

Ronc379@gmail.com 

Billy Shelton, Esq. 

2452 Sir Barton Way, Suite 200 

Lexington, KY 40509 

bshelton@sbhlegal.net 

Tony Oppegard, Esq, 

P.O. Box 22446 

Lexington, KY 40522 

tonyoppegard@gmail.com. 

Wes Addington, Esq. 

317 Main Street 

Whitesburg, KY 41858 

wes@aclc.org 

45 FMSHRC Page 226
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9949 

April 28, 2023 

Warrior Met Coal Mining LLC, 

 Contestant 

 v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Respondent; 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

Warrior Met Coal Mining LLC, 

 Respondent. 

 CIVIL CONTEST PROCEEDINGS 

 Docket No. SE 2023-0030 

 Docket No. SE 2023-0031 

 Docket No. SE 2023-0032 

 Mine: No. 4 Mine 

 Mine ID No. 01-01247 

 Docket No. SE 2023-0028 

 Docket No. SE 2023-0029 

 Mine: No. 7 Mine 

 Mine ID No. 01-01401 

CIVIL PENALTY PROCEEDINGS 

 Docket No. SE 2023-0041 

 A.C. No. 000566006 

 Docket No. SE 2023-0051 

 A.C. No. 000567006 

 Docket No. SE 2023-0056 

 A.C. No. 000567766 

 Docket No. SE 2023-0067 

 A.C. No. 000568866 

 Docket No. SE 2023-0101 

 A.C. No. 000570906 

 Mine: No. 4 Mine 

 Mine ID No. 01-01247 

 Docket No. SE 2023-0042 

 A.C. No. 000566007 

 Docket No. SE 2023-0053 

 A.C. No. 000567007 

 Docket No. SE 2023-0057 

 A.C. No. 000567767 

 Docket No. SE 2023-0068 

 A.C. No. 000568867 

 

45 FMSHRC Page 227
ORDER GRANTING THE ACTING SECRETARY’S 

AMENDED MOTION TO DISMISS AND DENYING WARRIOR MET’S MOTION TO 

CONSOLIDATE THESE CASES WITH NEWLY FILED INTERFERENCE CASE 

Before: Judge Thomas P. McCarthy 

 These consolidated contest and civil penalty proceedings are before me under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (1994). In this 

matter, the Acting Secretary has issued five 104(a) citations and thirteen penalty assessments to 

Warrior Met Coal Mining LLC (“Respondent”), each alleging a violation under section 103(f) of 

the Mine Act. The five citations are currently docketed as “Contest Proceedings,”1 while the 

thirteen penalty assessments are docketed as “Civil Penalty Proceedings.”2 The collective 

citations issued by the Acting Secretary allege that Respondent violated the Mine Act on 

multiple occasions by denying “miners’ representatives” access to the No. 4 and No. 7 Mines. 

Respondent denies these allegations and asserts that the individuals claiming to be miners’ 

representatives were not properly designated by an individual or individuals actively working in 

a coal or other mine. See 30 U.S.C. § 802(g); see also Cyprus Empire Corp., 15 FMSHRC 10 

(Jan. 25, 1993). 

I. Procedural History 

On November 8, 2022, Respondent timely filed two documents titled “Notice of Contest 

and Unopposed Request for Expedited Hearing.” The first of these filings concerned Docket 

Nos. SE 2023-0028 and -0029, which both involve alleged violations at the No. 7 Mine. The 

second filing concerned Docket Nos. SE 2023-0030, -0031, and -0032, which each relate to 

alleged violations relating to the No. 4 Mine. On December 2, 2022, the Secretary of Labor filed 

1

 The “Contest Proceedings” are before this tribunal as Docket Nos. SE 2023-0028, -

0029, -0030, -0031, and -0032. 

2

 The “Civil Penalty Proceedings” are before this tribunal as Docket Nos. SE 2023-0041, 

-0042, -0051, -0053, -0056, -0057, -0067, -0068, -0089, -0098, -0099, -0101, and -0118. 

 Docket No. SE 2023-0089 

 A.C. No. 000570247 

 Docket No. SE 2023-0098 

 A.C. No. 000561080 

 Docket No. SE 2023-0099 

 A.C. No. 000570907 

 Docket No. SE 2023-0118 

 A.C. No. 000571802 

 Mine: No. 7 Mine 

 Mine ID No. 01-01401 

45 FMSHRC Page 228
Answers to each Notice of Contest.3

 The matter was set for hearing on April 24, 2023 in 

Birmingham, Alabama. 

Following these initial submissions, the parties engaged in a protracted parley involving 

complex discovery that was at times directly overseen by this tribunal. Both parties engaged in 

written discovery and Respondent conducted depositions of an MSHA District Manager, 

Assistant District Manager, and Coal Field Office Supervisor. On January 11, 2023, the Acting 

Secretary submitted a Motion in Limine to Exclude Irrelevant Evidence and Testimony. On 

January 27, 2023, Respondent filed a Motion for Temporary Relief requesting that the 

undersigned 

consolidate all Petitions for Civil Assessment of Civil Penalties against 

[Respondent] [Dockets Nos. SE 2023-0041, SE 2023-0042, SE 2023-0051, SE 

2023-0053, SE 2023-0056, and SE 2023-0057] and prohibit any future Petitions for 

Civil Assessment of Civil Penalties against [Respondent] related to the 

Enforcement Actions or any similar circumstances pending the resolution of this 

matter. 

Resp’t App. for Temp. Relief at 3. Respondent then filed a Motion to Compel on January 31, 

2023, seeking to require the Acting Secretary to “fully respond to [Respondent’s] Interrogatories 

and Requests for Production of Documents, and to provide further testimony.” Resp’t Mot. to 

Compel at 1. 

 On February 2, 2023, my office received 1) Respondent’s Opposition to the Secretary’s 

Motion in Limine, 2) Respondent’s Motion to Postpone and Reschedule Hearing and Related 

Prehearing Deadlines, and 3) the Secretary’s Opposition to Respondent’s Application for 

Temporary Relief. On February 7, 2023, the undersigned held a conference call with the parties 

to discuss outstanding motions, including Respondent’s Motion to Compel and the Acting 

3

 The Secretary and, after March 11, 2023, the Acting Secretary, submitted Civil Penalty 

Petitions on the following dates: 

• January 6, 2023, for SE 2023-0041 and -0042; 

• January 17, 2023, for SE 2023-0056 and -0057; 

• January 19, 2023, for SE 2023-0051 and -0053; 

• February 21, 2023, for SE 2023-0067 and -0068; 

• March 2, 2023, for SE 2023-0089; 

• March 21, 2023, for SE 2023-0098, -0099, and -0101; and 

• April 3, 2023, for SE 2023-0118. 

Respondent submitted Answers to eight of the thirteen Civil Penalty Petitions, which were 

received on: 

• February 6, 2023, for SE 2023-0041 and -0042; 

• February 15, 2023, for SE 2023-0051, -0053, -0056, and -0057; and 

• March 23, 2023, for SE 2023-0067 and -0068. 

45 FMSHRC Page 229
Secretary’s Motion in Limine. During the conference call, the parties were encouraged to narrow 

and work toward resolution of outstanding discovery issues. In addition, the Secretary was 

ordered to provide a privilege log consistent with Fed. R. Civ. Proc. 26(b)(5)(A)(ii). Further, the 

undersigned agreed to review disputed documents in camera if the parties were unable to resolve 

redaction or privilege issues through a privilege log or protective order. 

 On February 13, 2023, the undersigned issued an Order Denying Respondent’s 

Application for Temporary Relief. On February 15, 2023, the Secretary submitted a Response to 

Respondent’s Motion to Compel. On February 21, 2023, following receipt of the Secretary’s 

Response, the undersigned held a follow-up conference call to further discuss all discovery 

issues outstanding, including the discoverability of certain topics, the production of documents 

by MSHA to Respondent, the submission of other documents for in camera review, and further 

depositions of MSHA and United Mine Workers of America (“UMWA”) representatives.4

 At the 

conclusion of this conference call, Respondent was given until March 3, 2023, to file a Reply to 

the then Acting Secretary’s Opposition, and the Acting Secretary was given until March 10, 

2023, to file a Sur-Reply. Respondent timely filed a Reply on March 10, 2023, and the Acting 

Secretary submitted a Sur-Reply on March 10, 2023. 

 

 On March 24, 2023, my office received a notice of appearance from legal counsel for the 

UMWA and a Motion to Revoke Third Party Subpoena Duces Tecum. 

On March 26, 2023, the Acting Secretary filed a Motion to Dismiss all of the five Contest 

Proceedings and five of the thirteen Civil Penalty Proceedings in the exercise of her prosecutorial 

discretion. See RBK Construction, Inc., 15 FMSHRC 2099, (October 1993). My office received a 

first amended version of this Motion to Dismiss on April 2, 2023, which was updated to include 

all thirteen of the pertinent Civil Penalty Dockets. On April 10, 2023, my office received a 

second amended version of the Acting Secretary’s Motion to Dismiss (“Amended Motion to 

Dismiss”).5

 

Also on April 10, 2023, the Acting Secretary filed a section 105(c)(1) interference 

complaint with two counts. Count One alleged that Respondent interfered with the exercise of 

statutory rights by miners and miners’ representatives at the No. 4 and No. 7 mines by refusing 

to allow properly designated miners’ representatives to accompany MSHA on inspections, 

thereby discouraging miners and their representatives from exercising their rights under section 

103(f) and chilling their participation in MSHA inspections. Count Two alleged that Respondent 

interfered with the exercise of statutory rights by miners and miners’ representatives at the No. 4 

4

 With regard to Respondent’s discovery requests seeking the identity of striking miners who 

designated UWMA representatives, the undersigned found that MSHA was not obligated to 

disclose the names of the designating miners. Wolf Run Mining, 446 F. Supp. 651, 655-56 (N.N. 

W. Va. 2006). Accordingly, with regard to that issue, the undersigned granted the Secretary’s 

Motion in Limine and denied Warrior Met’s Motion to Compel. Given the parties’ representation 

that they were working towards a settlement of the above matters, the undersigned found it 

unnecessary to definitively rule on other outstanding discovery or evidentiary issues at that time. 

5

 Specifically, the Acting Secretary moves to vacate all contest and civil penalty proceedings 

in the above-captioned matter. 

45 FMSHRC Page 230
and No. 7 mines by filing a motion to hold the UMWA and individual picketers in contempt of 

Alabama Circuit Court for alleged violations of the Court’s latest injunction, including their 

attempts to exercise section 103(f) rights, thereby chilling miners and miners’ representatives 

exercise of those rights. 

Also on April 10, 2023, Respondent filed a Motion to Consolidate the above-captioned 

collective Contest and Civil Penalty Proceedings with the Interference Complaint, docketed as 

SE 2023-0146 and -0147. On April 12, 2023, the Chief Judge assigned the interference 

proceeding to my office. 

On April 14, 2023, the Acting Secretary filed an Amended Interference Complaint in 

Docket Nos. SE 2023-0146 and -0147, alleging that Respondent chilled miners’ and miners’ 

representatives’ exercise of section 103(f) rights when it filed a Motion for Contempt in Alabama 

Circuit Court in response to alleged continued violations of the Circuit Court’s injunction. In this 

Amended Complaint, the Acting Secretary alleges that Respondent refused to allow designated 

miners’ representatives to accompany MSHA on inspections on November 4, 2022; November 

8–9, 2022; November 14–17, 2022; November 22–23, 2022; November 29, 2022; December 1–

2, 2022; December 5–6, 2022; December 8, 2022; December 15, 2022; January 11–13, 2023; 

January 20, 2023; January 26–27, 2023; January 30, 2023; February 22–23, 2023; March 10, 

2023; and March 13, 2023. See Sec’y Am. Compl., ¶¶ 9–44. The Acting Secretary dropped 

Count One of the original interference complaint and alleged that in January 2023, the UMWA, 

Floyd Conley, Eddie Pinegar, and Keri Bester filed section 105(c) complaints with MSHA 

alleging interference with protected rights. The sole remaining count remained the same as 

Count TWO of the original complaint alleging section 105(c)(1) interference by pursuit of state 

court contempt charges for the exercise of statutory rights under the Mine Act, including section 

103(f) walkaround rights. 

On April 18, 2023, the undersigned held a conference call with the parties to ascertain 

their respective positions on the pending motions. During that call, the undersigned learned that 

on about February 16, 2023, the UMWA made an unconditional offer to return to work effective 

on or about March 2, 2023. In addition, the undersigned represented that I was inclined to grant 

the Acting Secretary’s Motion to Dismiss, and deny Warrior Met’s Motion to Consolidate, but 

reserved decision until both parties had an opportunity to file a written response to each other’s 

respective motions. On April 20, 2023, the Acting Secretary filed an Opposition to Respondent’s 

Motion to Consolidate, and Respondent filed a Response to the Acting Secretary’s Amended 

Motion to Dismiss. For the reasons set forth below, I deny Respondent’s Motion to Consolidate, 

and grant the Acting Secretary’s Amended Motion to Dismiss all of the above-captioned dockets. 

II. Analysis 

Although the procedural history in this case is lengthy, the undersigned must resolve only a 

relatively straightforward inquiry – whether to consolidate interference Dockets SE 2023-0146 

and -0147 with the eighteen total dockets that the Acting Secretary has moved to dismiss. 

Commission Rule 12 states that “The Commission and its Judges may at any time, upon their 

own motion or a party’s motion, order the consolidation of proceedings that involve similar 

issues.” 29 C.F.R. § 2700.12. The Commission has held that “[a] determination to consolidate 

45 FMSHRC Page 231
lies in the sound discretion of the trial judge.” Pennsylvania Electric Company, 12 FMSHRC 

1562, 1565 (Aug. 1990).

The Acting Secretary has exercised her unreviewable discretion to vacate the eighteen 

above-captioned citations. See RBK Constr., Inc., 15 FMSHRC 2099 (Oct. 1993). The Acting 

Secretary contends that there is nothing for the undersigned to do procedurally except dismiss 

these cases. 

Although Respondent does not oppose the dismissal, it argues that dismissal should only 

come after consolidating the above-captioned proceedings with the newly filed interference 

proceeding. In its Response to the [Acting] Secretary’s Amended Motion to Dismiss, 

Respondent argues that its proposed consolidation-then-dismissal framework would allow the 

parties to avoid a recapitulation of the complex discovery that took place in these cases, and will 

therefore “greatly promote judicial economy and avoid duplicative discovery disputes.” Resp’t 

Resp. to Sec’y Am. Mot. to Dismiss at 1-2. Respondent also contends that “whether striking 

employees constitute miners under the Mine Act such that they can validly designate miners’ 

representatives is a central issue in the Interference Proceeding just as it was in these Contest 

Proceedings. Id. at 3 (internal quotations omitted). Respondent further contends that, because 

similar legal and procedural issues may arise again during the course of these newly filed 

interference proceedings, the 

Parties (and the Court) may be forced to largely duplicate their significant efforts 

in discovery because the Acting Secretary seeks a complete, unconditional 

dismissal of the Contest Proceedings. [Respondent] will be compelled to issue an 

entirely new set of written discovery requests, re-notice all depositions, re-issue 

third-party subpoenas, and endure the inevitable objections, motions in limine, and 

dilatory tactics of the Acting Secretary. (“. . .”) 

Because [Respondent] and the Acting Secretary (with significant assistance from 

the Court) have already engaged in extensive discovery on topics that are certain to 

arise again, [Respondent] respectfully requests the Court consolidate these cases 

prior to dismissing the Contest-Proceeding dockets. This will prevent the Parties 

from duplicating efforts in discovery, which could again require the Court’s 

intervention to resolve discovery issues already addressed in the Contest 

Proceedings. Accordingly, the interests of judicial economy favor consolidation 

prior to dismissal. 

Resp’t Resp. to Sec’y Am. Mot. to Dismiss at 4. 

The Acting Secretary opposes Respondent’s arguments concerning consolidation, instead 

arguing that 

The question in the interference case is not whether striking miners are “miners.” 

It is whether, from the perspective of a reasonable miner, [Respondent’s] actions 

tended to interfere with miners’ or miners’ representatives’ exercise of protected 

rights, and whether those actions were justified by a legitimate and substantial 

45 FMSHRC Page 232
business interest. See 30 U.S.C. 815(c)(1); Marshall Cnty. Coal Co. v. Fed. Mine 

Safety & Health Rev. Comm’n, 923 F.3d 192, 201-204 (D.C. Cir. 2019). That 

analysis focuses on any reasonable miner or miners’ representative, not on any 

particular one. Wilson v. Fed. Mine Safety & Health Rev. Comm’n, 863 F.3d 876, 

882 (D.C. Cir. 2017). 

Sec’y Opp’n to Resp’t Mot. to Consolidate at 2. 

I agree with the Acting Secretary’s reasoning essentially for the reasons set forth in her 

Opposition. It appears that the relevant question in the interference complaint is not limited only 

to whether striking miners are “miners” as defined in the Mine Act, but also, as the Acting 

Secretary puts it, “how a reasonable miner or miners’ representative—regardless of whether any 

particular person was on strike—would be affected by Respondent’s actions.” Sec’y Opp’n to 

Resp’t Mot. to Consolidate at 2. I also agree with the Acting Secretary’s assessment that the 

discrete issues in the contest and penalty cases and in the recently filed interference case are 

different. Certainly, there will be some overlap between the facts at issue in these cases and the 

interference case, as they collectively relate to Respondent’s alleged conduct towards striking 

workers during the strike at the No. 4 and No. 7 mines. However, there is now an unconditional 

offer to return to work and the Acting Secretary asserts that she will rely on new witnesses and 

different evidence in the interference matter; introduce new evidence that will purportedly show 

that Respondent “filed a motion in state court seeking to hold persons in contempt of court for 

exercising their statutory [walkaround] right to accompany MSHA;” and submit state court 

filings that are “unique to the interference issue and were not offered in the contest and penalty 

proceedings.” Sec’y Opp’n to Resp’t Mot. to Consolidate at 2-3. 

Finally, I agree with the Acting Secretary’s position that discovery in the interference 

case will not necessarily be duplicative of that conducted in these contest and civil penalty cases. 

Generally, section 105(c) complaints occur when an operator has allegedly denied or interfered 

with statutory rights such as walkaround rights or used other legal proceedings to interfere with 

statutory rights. See Marshall Cnty. Coal Co., 923 F.3d at 201-204. Although Respondent claims 

that the “Parties (and this tribunal) may be forced to largely duplicate their significant efforts in 

discovery because the Acting Secretary seeks a complete, unconditional dismissal of the Contest 

Proceedings,” the discovery in the contest and penalty cases concerned citations for alleged 

violations of section 103(f), whereas the interference case will concern Respondent’s alleged 

violations of section 105(c). See 30 U.S.C. § 815(c)(2). What is necessary to prove a violation of 

105(c) is different from what is relevant to prove a violation of section 103(f), particularly since 

the Secretary dropped Count One of the original interference complaint. 

In short, the undersigned finds insufficient evidence currently before me to conclude that 

the matters at issue in the interference cases are sufficiently similar to those at issue in the 

contest and civil penalty cases as to warrant consolidation. See 29 C.F.R. § 2700.12; see also 

Pennsylvania Electric Company, 12 FMSHRC at 1565. More importantly, the Acting Secretary 

has exercised her unreviewable discretion to dismiss the contest and civil penalty proceedings. 

See RBK Constr., Inc., 15 FMSHRC 2099. Respondent does not oppose that dismissal, it merely 

seeks to delay it. I see no good reason to watch these cases languish on the Commission’s 

docket when the Acting Secretary’s unreviewable discretion to dismiss these proceedings 

45 FMSHRC Page 233
essentially makes resolution of these matters moot. Respondent may use any discovery already 

obtained in these matters as evidence, if relevant, in the interference proceeding, and may pursue 

additional discovery in that proceeding. 

 Accordingly, I deny Respondent’s motion to consolidate, and grant the Acting Secretary’s 

Amended Motion to Dismiss. 

ORDERS 

For the reasons discussed above, the Acting Secretary’s Amended Motion to Dismiss is 

GRANTED. 

Further, Warrior Met’s Motion to Consolidate is DENIED. 

 /s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

45 FMSHRC Page 234
Distribution: 

Jean C. Abreu 

Daniel P. Miller 

Nicole A. Spain 

U.S. Department of Labor, Office of the Solicitor 

61 Forsyth Street, S.W., Room 7T10 

Atlanta, GA 30303 

abreu.jean.c@dol.gov 

miller.daniel.p@dol.gov 

spainstaton.nicole.a@dol.gov 

Susannah M. Maltz 

Jason S. Grover 

U.S. Department of Labor, Office of the Solicitor 

Division of Mine Safety & Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

maltz.susannah.m@dol.gov 

grover.jason@dol.gov 

David Smith 

John B. Holmes, III 

W. Brock Phillips 

MAYNARD COOPER & GALE, PC 

1901 Sixth Ave North 

1700 Regions/Harbert Plaza 

Birmingham, AL 35203 

dsmith@maynardcooper.com 

jholmes@maynardcooper.com 

bphillips@maynardcooper.com 

45 FMSHRC Page 235