i 

August 2020 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

08-14-20 JAMES C. SCOTT, employed by 

MILL BRANCH COAL 

CORPORATION and DONNIE B. 

THOMAS, employed by MILL 

BRANCH COAL CORPORATION 

VA 2018-0103 Page 481 

08-17-20 M-CLASS MINING, LLC LAKE 2018-0188-R Page 491

08-24-20 THE DOE RUN COMPANY 2015-0318-RM Page 521

08-28-20 AMERICAN AGGREGATES OF 

MICHIGAN, INC. 

LAKE 2018-0340 Page 570

08-28-20 HOPEDALE MINING, LLC LAKE 2019-0149 Page 589

COMMISSION ORDERS 

08-21-20 THE MONONGALIA COUNTY 

COAL COMPANY 

WEVA 2015-0509 Page 621 

ADMINISTRATIVE LAW JUDGE DECISIONS 

08-04-20 THEODORE OESAU v. ROGERS 

GROUP, INC. 

CENT 2019-0276-DM Page 625

08-04-20 SEC. OF LABOR O/B/O WILLIAM 

R. WHITMORE v. YAGER

MATERIALS CORP.

KENT 2020-0116-DM Page 641

08-07-20 KENAMERICAN RESOURCES, INC. KENT 2013-0211 Page 659
ii 

08-12-20 PEABODY MIDWEST MINING, 

LLC 

LAKE 2017-0450 Page 663
iii 

No review was granted or denied during the month of August 2020.

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

August 14, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

 Docket Nos. VA 2018-0103 

JAMES C. SCOTT, employed by VA 2018-0104 

 MILL BRANCH COAL CORPORATION 

and 

DONNIE B. THOMAS, employed by 

 MILL BRANCH COAL CORPORATION 

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners 

DECISION 

BY THE COMMISSION: 

These consolidated civil penalty proceedings arise under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”), and involve penalties 

the Secretary of Labor seeks to assess against James C. Scott and Donnie B. Thomas pursuant to 

section 110(c) of the Mine Act, 30 U.S.C. § 820(c).1 For the reasons that follow, we vacate the 

order of the now-retired Judge dismissing the proceedings (41 FMSHRC 563 (July 2019) (ALJ)), 

and remand the cases to the Chief Administrative Law Judge for its reassignment and the 

resumption of proceedings.

1

 Section 110(c) of the Mine Act provides:

Whenever a corporate operator violates a mandatory health 

or safety standard . . . , any director, officer, or agent of such 

corporation who knowingly authorized, ordered, or carried out 

such violation . . . shall be subject to the same civil penalties, fines, 

and imprisonment that may be imposed upon a person under 

subsections (a) and (d) [that provide for operator civil and criminal 

penalties, respectively]. 

30 U.S.C. § 820(c). 

42 FMSHRC Page 481
I. 

Factual and Procedural Background 

On April 7, 2015, Scott and Thomas were employed by Mill Branch Coal Corporation at 

its North Fork #6 Mine as Superintendent and a shift foreman, respectively. The Secretary 

alleges that a dangerous inundation of water in a section of that mine that day was discovered by 

a Mine Safety and Health Administration (“MSHA”) inspector. The next day, MSHA issued four 

citations and orders to Mill Branch in connection with the inundation, including Order No. 

8178613, alleging that the inundation was not reported to MSHA within 15 minutes, as required 

by 30 C.F.R. § 50.10(d).1 At the same time, MSHA began investigating the liability of the two 

miners for at least two of the violations. 

Mill Branch later filed timely notices of contest with respect to the four orders and 

citations. Thereafter, on August 3, 2015, Mill Branch entered into bankruptcy proceedings. 

In letters dated October 27, 2015, MSHA’s Norton (VA) District Manager informed each 

of the two miners that MSHA was “proposing to assess an individual civil penalty against you as 

an agent of Mill Branch” for the violation cited in Order No. 8178613 as well as for violating 30 

C.F.R. § 75.1502 (failure to follow the emergency evacuation and fire fighting plan), one of the 

four cited violations. MSHA went on to explain that “[t]his proposed penalty is based on 

information obtained during a special investigation conducted under the Mine Act . . . .”2

Despite the foregoing letters, MSHA, when it proposed penalties against Mill Branch in 

January 2016 in Docket Nos. VA 2016-105 & -106 for the four violations connected to the 

inundation, did not also propose to assess a penalty against either miner. Furthermore, in July 

2016, prompted in large part by Mill Branch’s pending bankruptcy proceeding, the Secretary and 

Mill Branch agreed to settle all four of the penalties, including the penalty for Order No. 

8178613. Based upon the Secretary’s motion for settlement, as well as his subsequent 

supplemental representations discussed below, a Commission Judge ordered Mill Branch to pay 

$33,071 for that violation, a reduction of 50 percent from the amount that the Secretary had 

proposed. See Decision Approving Settlement, Docket Nos. VA 2016-105, et al. (Aug. 3, 2016). 

Twenty months later, on April 12, 2018, the Secretary proposed penalties against Scott 

and Thomas of $4,000 and $3,500, respectively. The Secretary alleged that the two miners, as 

agents of Mill Branch, knowingly authorized, ordered, or carried out the violation of section 

50.10(d) set forth in Order No. 8178613. A different Judge was assigned to the miners’ cases. 

1

 Section 50.10(d) requires operators to notify MSHA within 15 minutes of the 

occurrence of an “accident.” An “accident” is defined to include “[a]n unplanned inundation of a 

mine by a liquid or gas.” 30 C.F.R. § 50.2(h)(4). 

2

 The Secretary did not enter copies of the letters into the record below; rather, they were 

appended by the Secretary to his reply brief to the Commission. In that same brief, the Secretary 

also disclosed that later in 2015, the miners had availed themselves of the opportunity MSHA 

offered in the letters to confer with the agency regarding their roles in the violations.

42 FMSHRC Page 482
Upon eventually learning some of the background of the proceedings, the Judge issued a 

Show Cause Order. In that order, the Judge focused on the timing of the section 110(c) penalty 

proposals, in relation both to the much earlier settlement of the penalties against the operator and 

to the issuance of Order No. 8178613, three years previously. The Judge required the Secretary 

to supply information justifying such a course of conduct in the cases. 41 FMSHRC 227, 229-30 

(Mar. 2019) (ALJ). The Secretary replied that the investigation ended on April 4, 2018, and 

penalties were proposed eight days later on April 12, 2018. 

The Judge was not satisfied with the substance of the Secretary’s responses. The Judge 

rejected the Secretary’s contention that the Commission can only review the appropriateness of 

the amount of time that lapsed between the end of the MSHA 36-month investigation of the 

miners and the agency’s proposal of penalties against them. Because he found that the Secretary 

had failed to provide a justification for such a lengthy investigation and that the Secretary had 

failed to demonstrate that the notices of civil penalty were issued within a reasonable time as 

contemplated by the Mine Act, the Judge dismissed the proceedings. 41 FMSHRC at 565-66. 

The Commission granted the Secretary’s subsequent petition for discretionary review of 

the dismissal order. 

II.

Disposition 

This case involves an issue that flows from the dual enforcement scheme of the Mine 

Act. The Secretary is charged with, among other things, inspecting mines, investigating health 

and safety violations that are discovered, and proposing penalties for those violations. When an 

operator or miner contests an alleged violation or the penalty proposed for it, the Commission is 

then tasked with reviewing the proffered violation and proposed penalty, including assuring due 

process in adjudicating the matter and the ultimate assessment of any penalty. 

42 FMSHRC Page 483
A. Applicable Law

Section 105(a) of the Mine Act sets out the Secretary’s obligations regarding the proposal

of penalties, including the timeliness of their proposal, as well as the finality of a penalty not 

contested.3 Section 105(d) then explains the role that the Commission is to play in the event of a 

timely contest of any enforcement action by the Secretary, including the contest of a proposal of 

a penalty.4

One of the primary reasons the Mine Act was enacted was to greatly improve upon the 

civil penalty assessment, adjudication, and collection procedures of its main predecessor statute, 

the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976) (“Coal 

3

 Section 105(a) states in pertinent part: 

If, after an inspection or investigation, the Secretary issues 

a citation or order under section 104, he shall, within a reasonable 

time after the termination of such inspection or investigation, 

notify the operator by certified mail of the civil penalty proposed 

to be assessed under section 110(a) for the violation cited. . . . . If, 

within 30 days from the receipt of the notification issued by the 

Secretary, the operator fails to notify the Secretary that he intends 

to contest the citation or the proposed assessment of penalty, and 

no notice is filed by any miner or representative of miners under 

subsection (d) of this section within such time, the citation and the 

proposed assessment of penalty shall be deemed a final order of 

the Commission and not subject to review by any court or agency. 

30 U.S.C. § 815(a) (emphasis added). 

4

 Section 105(d) states: 

If, within 30 days of receipt thereof, an operator of a coal or 

other mine notifies the Secretary that he intends to contest the 

issuance or modification of an order issued under section 104, or 

citation or a notification of proposed assessment of a penalty 

issued under subsection (a) or (b) of this section, . . .or any miner 

or representative of miners notifies the Secretary of an intention to 

contest the issuance, modification, or termination or any order 

issued under section 104, . . . the Secretary shall immediately 

advise the Commission of such notification, and the Commission 

shall afford an opportunity for a hearing . . . , and thereafter shall 

issue an order, based on findings of fact, affirming, modifying, or 

vacating the Secretary’s citation, order, or proposed penalty, or 

directing other appropriate relief. . . . . 

30 U.S.C. § 815(d).

42 FMSHRC Page 484
Act”). S. Rep. No. 95-181, at 43-45 (1977), reprinted in Senate Subcomm. on Labor, Comm. on 

Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 631-33 

(1978) (“Legis. Hist.”); see generally Donovan v. Phelps Dodge Corp., 709 F.2d 86, 91 (D.C. 

Cir. 1983). There was no language addressing the timing or timeliness of the assessment process 

in section 109(a)(1) of the Coal Act, pursuant to which MSHA’s immediate predecessor, the 

Mine Enforcement and Safety Administration of the Department of the Interior, proposed 

penalties against mine operators. Nor did the Coal Act demand timely action on the part of the 

predecessor to the Commission, the Board of Mine Operations Appeals, a creation of that same 

Department. Consequently, the Coal Act penalty procedures were “lengthy, and often repetitive,” 

becoming ones which “encourage[d] delaying the ultimate payment of civil penalties.” S. Rep. 

No. 95-181, at 44, Legis. Hist. at 632. 

 In drafting the Mine Act, the responsible Senate Subcommittee stated that “[t]o be 

effective and to induce compliance, civil penalties, once proposed, must be assessed and 

collected with reasonable promptness and efficiency. To achieve this objective S. 717 contains a 

number of significant departures from the present practice under the Coal Act.” S. Rep. No. 

95-181, at 43, Legis. Hist. at 631. Those departures, described as the “means by which the 

method of collecting penalties is streamlined,” included that “civil penalties are to be assessed by 

the . . . Commission rather than by the Secretary as prevails under the Coal Act . . . . Where a 

penalty is contested, the normal proceedings for the hearing of cases by the Commission 

controls.” S. Rep. No. 95-181, at 45-46, Legis. Hist. at 633-34. In creating the Commission, the 

Committee stated that it “strongly believes that it is imperative that the Commission strenuously 

avoid unnecessary delay in acting upon cases.” S. Rep. No. 95-181, at 48, Legis. Hist. at 636. 

 At the same time, the legislative history notes that when circumstances cause prompt 

proposal of a penalty to not be possible, such event should not prevent imposition of a penalty. 

Thus the Senate Report states, “there may be circumstances, although rare, when prompt 

proposal of a penalty may not be possible, . . . the Committee does not expect that the failure to 

propose a penalty with promptness shall vitiate any proposed penalty proceeding.” S. Rep. No. 

95-181, at 34, Legis. Hist. at 622. Congress desired expeditious action but also anticipated that 

speed is not achievable in all circumstances. 

 

In a case interpreting the relevant statutory language, Secretary of Labor v. Twentymile 

Coal Co, 411 F.3d 256 (D.C. Cir. 2005), involving a late-filed penalty proposal, the D.C. Circuit 

focused on a two-pronged inquiry: (1) was the delay in proposing the penalty a reasonable one; 

and (2) did the operator demonstrate prejudice from whatever delay in fact occurred? Id. at 262.

More recently, in Long Branch Energy, 34 FMSHRC 1984, 1990 (Aug. 2012), we explained 

“that Commission enforcement of the filing time limits is a secondary consideration to the 

primary purpose of section 105(d), i.e., ensuring prompt enforcement of the Act’s penalty 

scheme.” See also Salt Lake Cty. Road Dep’t, 3 FMSHRC 1714, 1716 (July 1981) 

(“considerations of procedural fairness to operators must be balanced against the severe impact 

of dismissal of the penalty proposed upon the substantive scheme of the statute and, hence, the 

public interest itself.”). In another case we also stated that “[w]hen reviewing a judge’s pre-trial 

rulings,” such as the one the Judge made here in dismissing the proceedings, “the appropriate 

standard of review to apply . . . is abuse of discretion, though any factual determinations he made 

in arriving at his conclusion are subject to substantial evidence review.” Black Butte Coal Co., 25 

42 FMSHRC Page 485
FMSHRC 457, 459-60 (Aug. 2003). “[T]he Commission cannot merely substitute its judgment 

for that of the . . . [J]udge . . . . The Commission is required, however, to determine whether the 

[J]udge correctly interpreted the law or abused his discretion and whether substantial evidence 

supports his factual findings.” Asarco, Inc., 12 FMSHRC 2548, 2555 (Dec. 1990). 

B. The Judge’s Dismissal for the Alleged Failure to Comply with Section 105(a)

 The Secretary argues that the Judge made numerous legal errors in his order dismissing 

the two section 110(c) cases. He contends that his obligation to propose penalties “within a 

reasonable time” occurs only “after the termination of [an] inspection or investigation.” PDR at 

13 (citing 30 U.S.C. § 815(a)). He thus argues that the relevant time period in this case was eight 

days. The two miners respond that the Judge properly required that the Secretary demonstrate 

“adequate cause” for why it took three years for the penalties against them to be proposed, and 

that substantial evidence supports the Judge’s conclusion that the Secretary failed to make such a 

showing. They allege that the delay of more than three years from the issuance of the citation to 

the operator to the issuance of the section 110(c) penalty proposals has prejudiced them. 

The Judge based his dismissal of proceedings on our statement in Long Branch that “[i]n 

addressing timeliness issues, . . . the Secretary is not free to arbitrarily ignore reasonable time 

constraints that would ‘deny fair play to operators’ by ‘exposing operators to stale claims.’” 41 

FMSHRC at 564 (quoting Long Branch, 34 FMSHRC at 1989). The Judge applied the remainder 

of the Commission’s Long Branch analysis to the facts at hand. Because in the Judge’s view, the 

Secretary failed to provide a justification for not proposing the 110(c) penalties until three years 

after issuing Order No. 8178613, the Judge dismissed the proceedings. Id. at 564-65.5 This case, 

however, does not hinge on application of Commission Procedural Rule 28, 29 C.F.R. § 2700.28. 

The Secretary complied with Rule 28(a). Therefore, Rule 28 was not applicable and does not 

provide a basis for dismissal. 

 The primary issue the Judge raised in his Show Cause Order is the timeliness of the 

Secretary’s initial proposal of the section 110(c) penalties. We review his decision by looking 

first at the statute and then at due process. 

The most obvious statutory provision is section 105(a). As seen, it states that “[i]f, after 

an inspection or investigation, the Secretary issues a citation or order under section 104, he shall, 

within a reasonable time after the termination of such inspection or investigation, notify 

5 Long Branch involved a specific procedural deficiency: a failure by the Secretary to 

file a penalty petition within 45 days of receiving a timely notice of contest. In Long Branch, the 

Commission expanded upon our earlier decision in Salt Lake and held that in such cases, a 

Judge, before permitting proceedings to go further, can require the Secretary to provide 

“adequate cause” for his failure to meet the 45-day time limit. 34 FMSHRC at 1989-91. The 

Commission was careful to point out in Long Branch that it was interpreting and applying its 

own regulation and thus had considerable legal leeway to craft the “adequate cause” standard. Id. 

at 1989.

42 FMSHRC Page 486
the operator by certified mail of the civil penalty proposed to be assessed . . . .” 30 U.S.C. § 

815(a) (emphasis added).6

Regardless of the length of time the Secretary may have taken to investigate the section 

110(c) charges here,7 deference has been accorded the Secretary’s interpretation of section 

105(a) that the time period subject to the reasonableness requirement in that provision begins

only upon the completion of the investigation necessary to support the penalty proposal. See 

Twentymile, 411 F.3d at 261. Consequently, the Secretary explained that his investigations into 

the liability of the two individual miners under section 110(c) for the section 50.10(d) violation 

did not conclude until April 4, 2018. S. Resp. to Order to Show Cause at 1. 

Thus, for present purposes, the period subject to the “reasonable time” requirement of 

section 105(a) began on April 4, 2018 with the conclusion of the section 110(c) investigations 

and ended with MSHA’s proposal of penalties on April 12, 2018 — a period of eight days. PDR 

at 13-14. There is no question that, for purposes of section 105(a), the eight-day period of time 

6

 The Secretary correctly points out that section 105(a) goes on to refer only to penalties 

proposed pursuant to section 110(a), which governs penalties imposed upon operators, not 

individual miners. Given our holding here, we need not resolve the Secretary’s contention that, 

by implication, the terms of section 105(a) do not govern penalties that the Secretary proposes to 

assess against individual miners pursuant to section 110(c). We note, however, that both the 

Secretary and the Commission have continually found it necessary to look to other provisions of 

the Mine Act — such as sections 105(a) and section 105(d) set forth above, along with section 

110 — to give effect to the summary provisions of section 110(c). 

The Secretary also argues that, notwithstanding its “reasonable time” language, section 

105(a) cannot be read to be a statute of limitations, so that by default 28 U.S.C. § 2462 applies to 

all Mine Act civil penalty proceedings. That provision states in pertinent part that “[e]xcept as 

otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any 

civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless 

commenced within five years from the date when the claim first accrued . . . .” See, e.g., 3M Co. 

v. Browner, 17 F.3d 1453, 1455 (D.C. Cir. 1994) (holding 28 U.S.C. § 2462 to apply because 

civil penalty at issue there “contains no provision limiting the time within which the [federal 

agency] must initiate the administrative action.”). Because of our holding here, we leave the 

resolution of this argument to a future case. 

7

 Mine Act investigations are governed by section 103 of the Act, 30 U.S.C. § 813, which 

contains no timeliness provision. Cf. 52 U.S.C. § 30107(a)(9) (providing that the Federal 

Election Commission is “to conduct investigations . . . expeditiously”). Furthermore, an 

investigation into a miner’s individual liability under section 110(c) for a violation is, in 

particular, not perfunctory and thus may take time beyond that that is necessary to investigate the 

operator for the violation. See Sedgman, 28 FMHSRC 322, 341 (June 2006) (Commissioners 

Suboleski and Young) (characterizing as reasonable under section 105(a) the less than 11 months 

of time between citation issuance and penalty proposal to the operator, given the section 110(c) 

investigation that was also conducted). 

42 FMSHRC Page 487
qualifies as “reasonable” for purposes of proposing a penalty. See Long Branch, 34 FMHSHRC 

at 1991 n.11 (“Commission presumes that the Secretary’s agents generally act in good faith . . . 

.”). Consequently, the Judge’s order dismissing these proceedings cannot be affirmed at this 

juncture on the basis of section 105(a).8

Turning to the due process issue, the Commission has recognized that the “[t]he 

fundamental requirement of procedural due process is the opportunity to be heard ‘at a 

meaningful time and in a meaningful manner’ appropriate to the nature of the case.” Capitol 

Cement Corp., 21 FMSHRC 883, 893 (Aug. 1999) (emphasis added) (quoting Mathews v. 

Eldridge, 424 U.S. 319, 333 (1976). We note that the circumstances the miners’ cases present are 

undoubtedly unusual.9 Cases against operators and related cases against individual miners “are 

often consolidated for reasons of judicial efficiency . . . .” S. Resp. to Show Cause Order at 6. 

Moreover, the Commission has recognized that there are common elements to operator and 

individual miner liability cases, such as gravity. See Sunny Ridge Mining Co., 19 FMSHRC 254, 

272 (Feb. 1997); see also Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1764 (Aug. 2012) 

(Judge’s “finding that the [operator’s] violation was not unwarrantable sufficiently explains why 

in her view no penalties against the individuals should be assessed . . . .”). Should the miners 

have suffered actual prejudice attributable to the unusual procedural path this case has traveled to 

date, it is possible they have been denied due process. We remand this case back to the judge, 

8

 Chairman Rajkovich and Commissioner Althen note, separately, the following 

observations. The only record of the conduct of the investigation after December 2015 presently 

before us is the Secretary’s statement that MSHA issued the assessment eight days after the 

Technical Compliance and Investigation Office sent a letter requesting proposal of assessments. 

Thus, the current record precludes our determination of a number of issues. Those include: 

whether section 105(a) applies to section 110(c) assessments; whether an investigation 

terminates in MSHA’s absolute discretion; whether any person of interest, or the Commission, 

may inquire as to when an investigation was concluded for purposes of section 105(a); and, 

whether (or how) Long Branch may affect our evaluation of prejudice versus “reasonable time” 

in the conduct of investigations pursuant to section 110(c). The fact that we have not addressed 

those issues, here, has no bearing on their consideration by the Judge on remand or by the 

Commission in future cases. 

9

 Chairman Rajkovich and Commissioner Althen note, separately, the undoubtedly 

unusual aspect of these cases with the following observations. On October 27, 2015, notification 

was given to the miners of the intention to propose penalties against them. The violation under 

investigation was for failing to notify MSHA within 15 minutes of the occurrence of an accident. 

This would not appear to be a complex matter for investigation; yet the investigation was not 

reported as completed until more than two years later, on April 4, 2018. In proposing the 

settlement in the operator’s case, the Secretary proffered that the resolution would “conserve 

scarce resources” such as “inspectors spending time preparing for and appearing at trial.” E-mail 

from Office of Solicitor attorneys to Judge’s clerk (July 27, 2016). In the Preliminary Statements 

in these cases, however, the Secretary identified as potential witnesses the two inspectors who 

had issued the citations and orders against Mill Branch in the operator’s case. Further, there is no 

evidence that the Judge in the proceeding against the operator was informed that Scott and 

Thomas were the subjects of an investigation. 

42 FMSHRC Page 488
where the miners will have the opportunity to provide argument and evidence that they have 

been denied due process. 

 We do not find a statute bars the filing in this case, and in the absence of such a finding, 

the length of time, standing alone, does not bar the assessments. To establish a due process 

violation, the miners would have to submit on remand evidence of actual prejudice, not just 

allegations of potential or inherent prejudice.10 See Long Branch, 34 FMSHRC at 1991-93; see 

also Twentymile, 411 F.3d at 262; Valley Camp Coal Co., 1 FMSHRC 791, 792 (July 1979) 

(reversing Judge’s decision dismissing penalty contest for failure to timely answer penalty 

petition because there was no showing that the Secretary had been prejudiced by the delay). The 

Secretary would then have the opportunity to submit rebuttal evidence to the assigned Judge. 

10 To date, the miners’ prejudice arguments have been made solely through argument of 

counsel, with no supporting evidence, such as affidavits.

42 FMSHRC Page 489
III. 

Conclusion 

 For the foregoing reasons we vacate the Judge’s order dismissing the proceedings and 

remand these cases to the Chief Administrative Law Judge for reassignment. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

 Michael G. Young, Commissioner 

/s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 490
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

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

WASHINGTON, DC 20004-1710

August 17, 2020 

 BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners 

DECISION 

BY: Rajkovich, Chairman; Young, and Althen, Commissioners 

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

§ 801 et seq. (2018) (“Mine Act”). At issue is Order No. 9104295, issued to M-Class Mining,

LLC (“M-Class”) on February 24, 2018 by the Department of Labor’s Mine Safety and Health

Administration (“MSHA”). MSHA issued the order under section 103(k) of the Mine Act, 30

U.S.C. § 813(k),1

 after receiving a verbal report from the local police department that a doctor

had called reporting that a miner had suffered carbon monoxide poisoning in the mine.

The operator contested the validity of the order after it was terminated, but not vacated, 

by MSHA. The Secretary argued that the order was valid. The Secretary further argued that 

because MSHA terminated the order prior to the hearing on the contest, the issue of the validity 

of the order was moot. 

 The Judge first determined that the issue was not moot. The Judge then concluded that 

an “accident” had occurred and affirmed the validity of the section 103(k) order. 41 FMSHRC 1, 

11 (Jan. 2019) (ALJ). The operator challenges the Judge’s decision that an “accident” had 

occurred. 

Upon review, we affirm the finding that this case is not moot. We further determine that 

the Judge erred in finding that an accident had occurred, and therefore, we vacate the order. 

1

 30 U.S.C. § 813(k) states that: 

In the event of any accident occurring in a coal or other mine, an 

authorized representative of the Secretary, when present, may issue 

such orders as he deems appropriate to insure the safety of any 

person in the coal or other mine, and the operator of such mine 

shall obtain the approval of such representative, in consultation 

with appropriate State representatives, when feasible, of any plan 

to recover any person in such mine or to recover the coal or other 

mine or return affected areas of such mine to normal.

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

M-CLASS MINING, LLC

Docket No. LAKE 2018-0188-R 

42 FMSHRC Page 491
I. 

Background 

A. Factual Background 

On February 24, 2018, miner Mitchell Mullins began his shift at the M-Class #1 

underground coal mine in Macedonia, Illinois. Mullins was part of a crew of 14 miners tasked 

with closing a gap in the mine roof, the result of a roof fall at the Headgate # 6 section of the MC 

portal of the mine. The miners erected a steel archway to support the roof before using a diesel 

air compressor to pump foam into the gap in the roof. Gas detectors were mounted in the area, 

and eight to ten of the miners, including Mullins, carried hand-held gas “spotters” to track the 

levels of carbon monoxide in the mine.1

 

Mullins arrived underground at 8:00 a.m. Between 9:00 a.m. and 9:30 a.m., he began to 

suffer from dizziness and a light headache. Later, between 10:00 a.m. and 11:00 a.m., the 

operator started using the compressor, which was located in proximity to Mullins. Between 

11:15 a.m. and 11:30 a.m., Mullins started experiencing chest pains and difficulty breathing. At 

approximately 3:00 p.m., Mine Superintendent Demitrios Macropoulos transported Mullins from 

the section. Macropoulos testified that, on his way out of the mine, Mullins “said something 

about how the flu had been going around his home, and he had it the previous week, and it's 

probably not all the way out of his system.” Tr. 227-28. Mullins also stated he was feeling 

better while enroute out of the mine.2 Nevertheless, Mullins was transported to the emergency 

room at a nearby hospital. 

At approximately 6:50 p.m., Dr. Dean Bosley, a physician at the hospital, called the local 

police, reported that Mullins had suffered carbon monoxide poisoning while working at the 

mine, and further recommended that the mine be shut down. The police called an MSHA hotline to report Dr. Bosley’s diagnosis and recommendation. The MSHA hot-line employees used 

this information to create an escalation report that was then sent to the local MSHA field office. 

After receiving the escalation report, the MSHA field office supervisor, Bob Bretzman, 

called Parker Phipps, a senior management official at the mine. Phipps informed Bretzman that 

he had worked with Mullins in the same area that day, and had not detected any elevated levels 

of carbon monoxide with his gas spotter. Bretzman did not issue an order to evacuate the mine, 

but informed Phipps that he was sending an inspector out to investigate. Phipps then sent a 

miner to inspect the area at issue. The miner did not detect any elevated carbon monoxide levels. 

1

 The handheld gas spotters can record data of carbon monoxide levels throughout a shift 

or merely the highest (“peak”) levels of carbon monoxide detected during a shift. Combined 

with a tracking system used to locate miners, it is possible to identify where a miner was located 

during each recording of carbon monoxide levels. Tr. 43, 46-47. 

2

 Mullins provided that observation in an interview directly to MSHA field office 

supervisor Bob Bretzman. 

42 FMSHRC Page 492
Inspector Brandon Naas was dispatched to the mine. He reviewed the escalation report at 

the MSHA field office before leaving for the mine. Naas arrived at the mine at 10:43 p.m. Upon 

his arrival, relying upon the escalation report generated by the doctor’s call, Naas immediately 

issued Order No. 9104295 under section 103(k) of the Mine Act at 10:55 p.m. to suspend 

operations in the area at issue. While Naas was still on the surface, he reviewed a report from 

the mounted gas detectors (the monitors) and checked the data from a hand-held gas spotter. In 

neither case was there any indication of elevated carbon monoxide levels in any area where 

Mullins had been working. At about midnight, Naas went underground to Headgate # 6 to 

investigate the area at issue. While he was underground, he used a gas spotter and did not detect 

any elevated levels of carbon monoxide. He was unable to locate, and therefore check, Mullins’ 

own hand-held gas spotter. 

By 1:25 a.m. Naas had completed his investigation. Having not found any high levels of 

carbon monoxide, he modified his order to release the area for resumption of normal mining 

operations. Naas then started the air compressor to determine if he could detect an exhaust of 

carbon monoxide. He did not detect any elevated levels of carbon monoxide from the 

compressor. Sec’y Ex. 2 at 6-7.3

 

The next day, at 8:15 a.m., Naas again modified the order. The second modification 

removed the compressor from service pending further investigation. MSHA stated that this 

modification was made because of a need for further investigation into whether the compressor 

was a source of elevated carbon monoxide. Sec’y Ex. 1 at 1-3. 

Between February 26 and February 28, Naas interviewed Mullins and other miners who 

had worked with Mullins on February 24. Again, he did not find any evidence that any miners 

had detected elevated levels of carbon monoxide on the day in question. Naas also did not find 

any evidence that any other miner who had worked in the area that day had suffered chest pains 

or breathing difficulties. 

 

Despite the lack of findings, MSHA subsequently required the operator to submit an 

action plan to prevent exposure to elevated levels of carbon monoxide. On March 1, 2018, the 

operator submitted its proposed action plan. MSHA rejected this plan on March 7, 2018. The 

operator responded by proposing another action plan on March 8, 2018. However, the parties 

were again unable to reach agreement. 

Thereafter, on March 15, 2018 the operator filed this action. Over one month later, on 

April 4, 2018, although the parties had not reached an agreement on a proposed action plan, 

MSHA terminated the order and returned the compressor to the operator. MSHA never 

identified elevated levels of carbon monoxide in the area nor any source that would cause 

elevated levels of carbon monoxide. MSHA never issued a citation related to the order. 41 

FMSHRC at 5. 

3

 State inspectors took bottle samples of the air to check for carbon monoxide. The 

results of those bottle samples were negative, showing 5 ppm, an amount significantly below the 

regulatory threshold. Tr. 66. 

42 FMSHRC Page 493
B. Procedural Background 

M-Class not only contested the order on March 15, it also filed a motion for an expedited 

hearing on the order. On March 30, the presiding Judge denied M-Class’s motion for an 

expedited hearing. The operator continued to challenge this order, contending that no accident 

had occurred. 

On July 18, the Judge concluded that the case was not moot. 40 FMSHRC 1288 (July 

2018) (ALJ). On September 20, the Secretary filed a petition for interlocutory review of the 

Judge’s order asking the Commissioners to find that the matter was moot. Due to the absence of 

a quorum, the Commission was unable to consider this petition.4

 

On October 3-4, the Judge held a hearing in this matter. Neither Mullins, the allegedly 

affected miner, nor Dr. Bosley, the physician who initially phoned the local police 

recommending that the mine be shut down, testified during the hearing. On January 14, 2019, 

the Judge determined that an “accident” had occurred on February 24, 2018 and affirmed the 

order. 41 FMSHRC at 10-11. Subsequently, the operator filed a timely petition for review, 

which the Commission granted on February 25, 2019. 

II. 

Judge’s Decision 

The Judge’s order of July 18, 2018, held that the section 103(k) order was not moot, 

despite having been terminated, because the order posed continuing consequences for the 

operator. Specifically, the Judge found that the order could impact the operator’s reputation. 

Alternatively, the Judge found that the order fell within the capable-of-repetition-yet-evadingreview exception to mootness. 40 FMSHRC at 1291-92. 

 

The Judge went on to decide the case on the merits. In the decision, the Judge held an 

“accident” had occurred and affirmed the section 103(k) order. 41 FMSHRC at 11. 

The Judge reasoned that the event involving Mullins was an “accident” because it was a 

sudden event which required quick action to ensure safe mining conditions, making it similar in 

nature to a mine inundation – an event which constitutes an “accident” under section 3(k) of the 

Mine Act. Aluminum Co. of America (“Alcoa”), 15 FMSHRC 1821, 1824 (Sept. 1993). In 

relevant part, the Judge determined that “Mullins’ diagnosis and the rapid response of all 

involved parties demonstrate that his injury was a sudden event . . . [The] evacuation and 

hospitalization of a miner positively diagnosed with carbon monoxide poisoning constitutes an 

injury that requires quick action to ensure the safety of other miners.” 41 FMSHRC at 7-8. 

4

 The Commission may grant interlocutory review only by “a majority vote of the full 

Commission or a majority vote of a duly constituted panel of the Commission.” 29 C.F.R. § 

2700.76(a)(2). Therefore, in the absence of a quorum the Commission may not undertake 

interlocutory review. 

42 FMSHRC Page 494
Alternatively, the Judge found that Mullins’ hospitalization was an injury which constituted an 

independent basis for an accident. Id. at 8. 

The Judge implicitly acknowledged that Mullins’ harm might not have been caused by 

mining conditions. He stated that “M-Class presented credible evidence demonstrating that no 

elevated carbon monoxide levels were detected . . . and that Mullins’ original diagnosis may not 

have risen to the level of carbon monoxide poisoning.” Id. at 9. The Judge’s focus, however, 

was on MSHA’s issuance of the order “in response to the information it possessed at the time,” 

finding that the agency reasonably relied on the escalation report, which “rationally connect[ed] 

Mullins’ injury to a potential . . . elevation of carbon monoxide at the mine.” Id. at 8. 

Consequently, the Judge’s determination of an “accident” was based upon what MSHA thought 

at the time of the issuance of the order rather than whether an “accident” had actually occurred. 

 

In addition, the Judge upheld the second modification to the order, under which the 

inspector removed the air compressor from service. The Judge held that the second modification 

was limited in scope, i.e., it only applied to the air compressor, and the inspector reasonably 

suspected that the compressor was a source of elevated carbon monoxide because the compressor 

was the only equipment to which the miner was not normally exposed. Id. at 10-11. 

III. 

Disposition 

In its Petition for Discretionary Review, the operator lists three assignments of error. 

First, the operator claims that the Judge erred in finding that an “accident” had occurred under 

the Mine Act because MSHA was unable to show that “there was carbon monoxide present in 

the underground mine which injured or sickened a miner.” PDR at 13. Second, the operator 

claims that the Judge erred in finding that the section 103(k) order, which was modified twice, 

was reasonably tailored in scope. Third, the operator claims that the Judge, by failing to grant 

the operator’s request for an expedited hearing, erroneously denied the operator an appropriate 

remedy for MSHA’s removal of a valuable compressor from service for an extended period. 

The Secretary argues on appeal that the section 103(k) order is moot because it has been 

terminated and therefore does not pose any legal consequences under the Mine Act. In addition, 

the Secretary claims that the order does not fall within the capable-of-repetition-yet-evadingreview exception to mootness.5

 

 

5

 The Secretary also claims that the Judge erred in using the operator’s reputational 

concerns to find that this matter was not moot. However, as set forth below, the operator has a 

legally cognizable interest, separate from its reputational concerns, in having the order vacated. 

42 FMSHRC Page 495
A. The Section 103(k) Order is Not Moot 

In North American Drillers, we addressed the mootness doctrine as applied to the 

Commission: 

[W]hile the article III constitutional requirement of “case or 

controversy” does not literally apply to federal administrative 

agencies like the Commission, “an agency receives guidance from 

the policies that underlie the ‘case or controversy’ requirement of 

article III .... An agency acts within its discretion in refusing to 

hear a case that would be considered moot if tested under the 

article III ‘case or controversy’ requirement” . . . A case is moot 

when the issues presented no longer exist or the parties no longer 

have a legally cognizable interest in the outcome. 

34 FMSHRC 352, 358 (Feb. 2012). In that case, we determined that the Secretary’s vacation of 

the citation combined with the Judge’s dismissal of the civil penalty with prejudice meant that 

the parties no longer had a legally cognizable interest in the outcome. In contrast, here, Order 

No. 9104295 has been terminated, but not vacated. 

In Wyoming Fuel Co., 14 FMSHRC 1282, 1288-89 (Aug. 1992), we determined that 

termination of a citation/order “is a common administrative function of the Secretary . . . meant 

only to convey that a violative condition has been abated.” Notably, we determined that a 

terminated order continues to exist for other legal purposes besides abatement, which in turn 

permits the terminated enforcement action to be contested in subsequent civil proceedings. In 

contrast, vacation of an order means that the order no longer exists for legal purposes. In this 

case, the order outlives its termination and continues to indicate on the record that an accident 

occurred at the mine. 

Therefore, we must examine whether the terminated order at issue can pose any legal 

consequences for the operator. If so, the operator retains a legally cognizable interest in having 

the order vacated. 

We note that the subject section 103(k) order does not currently allege the violation of 

any health or safety standard. Nevertheless, as noted above, it remains an order finding the 

occurrence of an “accident.” The issuance of any section 103(k) order necessarily initiates an 

investigation at a mine, which is what occurred in this case. Accident investigations have 

multiple purposes, including the finding of facts to support allegations of violations, both civil 

and criminal. 

The mere listing of an “accident,” in the form of a section 103(k) order, in the compliance 

history of a mine, is a clear implication to the public that something occurred at that mine that 

affected the health and safety of miners. That has a diminishing effect on the operator’s 

compliance history. Thus, there is legislative legal precedent and reputation is far from a hollow 

concern. 

42 FMSHRC Page 496
Moreover, section 103(k) orders can be modified, as was the case here. Such 

modifications, in general, could allege the violation of a health or safety standard. Our case-law 

permits the Secretary to make such a modification, even though the order at issue has been 

terminated, and despite the fact that the order does not currently allege a violation of any 

standard. First, in Wyoming Fuel, 14 FMSHRC at 1288-89, we found that termination of a 

citation only meant that the violative condition had been abated and did not preclude the citation 

from subsequently being modified. We have recognized that this principle – that terminated 

citations can be modified – also applies to withdrawal orders such as those issued under section 

103(k) of the Mine Act. See Ten-A-Coal Co., 14 FMSHRC 1296, 1298 (Aug. 1992). Second, 

we have determined that a withdrawal order which did not allege a violation of a standard could 

be modified to allege such a violation. Westmoreland Coal Co., 8 FMSHRC 1317, 1328 (Sept. 

1986).6

 

 

Our dissenting colleagues accept that an inspector must issue a citation if a violation is 

discovered. That requirement reinforces the valid premise that section 103(k) orders can lead to 

the issuance of one or more citations for violations discovered during the course of the 

investigation. Therefore, if an order is not vacated, the Secretary retains the ability to modify the 

order to allege a violation of a safety or health standard, which could in turn affect the operator’s 

repeat violation history. In contrast, if the order is vacated, it may not serve as a basis for a 

citation that would appear in the operator’s repeat violation history or affect future penalties 

assessed against the operator. 

Thus, the operator retains a legally cognizable interest in having the terminated order 

vacated. Accordingly, we find that Order No. 9104295 is not moot 

 We further find that the order is also within the capable-of-repetition-but-evadingreview exception to mootness. In Performance Coal Co., 642 F.3d 234, 237-38 (D.C. Cir. 

2011), the Court explained that this exception applies when there is a reasonable expectation that 

the party seeking to avoid mootness will be subjected to the same action again and the duration 

of the challenged action is too short for the action to be litigated fully before the action expires. 

The Court explained that when applying this exception, courts should focus on whether the 

alleged legal wrong is likely to recur, not whether the precise historical facts are likely to recur. 

Id.

In this case, the Secretary does not dispute that the duration of the order was too short for 

the order to be litigated fully, i.e. the Secretary does not contest that the order would evade 

review. Instead, the Secretary argues that the operator has not shown that it is likely to contest 

terminated section 103(k) orders and their modifications in the future. 

However, under Performance, 642 F.3d at 237-38, the relevant issue is whether the 

general legal wrong, not the precise historical facts, is likely to recur. Furthermore, it is 

6

 Despite these precedents our dissenting colleagues apparently disregard stare decisis on 

this point, querying “[w]hether MSHA would have the legal authority to do so is unclear.” Slip 

op. at 21. 

42 FMSHRC Page 497
sufficient for a party, when claiming the recurrence of a general legal wrong, to assert that it will 

challenge the same action in the future. Id. 

Here, the general legal wrong concerns the harmful impact of section 103(k) orders on 

the operator’s ability to use equipment at a mine. This order, as modified on February 26, 2018, 

prevented the operator from using a diesel air compressor from February 26 until April 4. In 

other words, the order, as modified, removed a compressor from service for the entire month of 

March. MSHA does not dispute that in the future, it might issue similar orders under section 

103(k). M-Class’s contest of the terminated order suggests that the operator will challenge such 

agency actions in the future, even if they are later terminated, because they restrict the operator’s 

ability to use equipment. 

More importantly in this case, the operator was required to comply with the order 

mandating the lengthy loss of use of equipment as though there had been an accident until it 

raised a legal challenge to the Secretary’s actions. Only at that point did MSHA capitulate and 

terminate the order. Commissioner Jordan would hold this case moot, and Commissioner 

Traynor would require that we uphold the continued fiction that an “accident” had occurred (in 

the absence of any evidence of such), despite the fact that section 103(k) operates prospectively 

as a limit on the operator’s activities. Here, despite the fact that the agency had apparently 

conducted all of the investigation it intended to undertake and had found no evidence of any 

“accident,” the operator required MSHA approval to regain control of its property and return, 

formally, to “normal” mining. 

In addition to the particular and ongoing harm suffered by the operator, which has been 

forced to undertake significant trouble and expense to vindicate its constitutional right to 

maintain control over its property and resume its lawful activities (absent an important 

government need to prevent it from doing so), there is a general harm. If the agency is not 

countered here, it may be presumed that it will operate similarly in the future, because there is no 

means of holding the agency accountable, absent threatening or commencing litigation – at 

which point the agency will again withdraw and await the next opportunity to act with temporal 

impunity. 

 

This is the classic paradigm for the exception, in which a government agency terminates 

an enforcement action when challenged, but retains the ability to file subsequent actions because 

its enforcement action has not been adjudicated as improper. See S. Pac. Terminal Co. v. ICC, 

219 U.S. 498, 515 (1911) (establishing the exception to mootness where a parties’ rights, 

“capable of repetition yet evading review,” could be determined by the agency’s short-term 

orders without a chance of redress); Spencer v. Kemna, 523 U.S. 1, 17 (1998) (the capable-ofrepetition exception to mootness applies where “(1) the challenged action [is] in its duration too 

short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable 

expectation that the same complaining party [will] be subject to the same action again” 

(emphasis added; internal quotation marks omitted)); U.S. v. Concentrated Phosphate Export 

Assn., Inc., 393 U.S. 199, 203 (1968) (party whose actions threaten to moot a case must make 

“absolutely clear that the allegedly wrongful behavior could not reasonably be expected to 

recur”); U.S. v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953) (voluntary cessation of illegal 

42 FMSHRC Page 498
activity will not render case moot unless there is “no reasonable expectation that the wrong will 

be repeated” (internal quotation marks omitted)). 

Therefore, we find there was a continuing existence of an official and potentially legally 

harmful order finding that an “accident” had occurred at the operator’s mine. The general legal 

wrong posed by Order No. 9104295 is likely to recur, i.e. is capable of repetition. Thus, the 

exception to mootness applies to this case. 

 

B. The Judge’s Accident Determination Is Vacated.7

 

Section 103(k) of the Mine Act provides that “[i]n the event of any accident occurring in 

a . . . mine, [an MSHA inspector], when present, may issue such orders as he deems appropriate 

to insure the safety of any person in the . . . mine.” 30 U.S.C. § 813(k). Therefore, an accident is 

a prerequisite for a section 103(k) order, as stated in Aluminum Co. of America (“Alcoa”), 15 

FMSHRC 1821, 1824 (Sept. 1993). Section 3(k) of the Mine Act defines an “accident” as 

including “a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death 

of, any person.” 30 U.S.C. § 802(k). We have recognized that the definition of “accident” in 

section 3(k) applies to the entire Mine Act. Revelation Energy, LLC, 35 FMSHRC 3333, 3339 

(Nov. 2013); Big Ridge, Inc., 37 FMSHRC 1860, 1866 (Sept. 2015). 

The federal courts have followed our determination that the term “accident” as used in 

section 103(k) encompasses events that are similar in nature to or that have a similar potential to 

cause injury as a mine ignition, mine inundation, mine fire or mine explosion. See Pattison Sand 

Co., 688 F.3d 507, 513 (8th Cir. 2012) (citing Alcoa, 15 FMSHRC at 1825-26). In Alcoa, the 

Commission stated, “Mine explosions, ignitions, fires and inundations typically are sudden 

events that pose an immediate hazard to miners and require emergency action.” 15 FMSHRC at 

1826. Therefore, in Alcoa, the Commission found the predicate for an accident must be an 

incident, occurrence, or condition in a mine.8

 

7

 Commissioner Jordan confined her dissent to the mootness issue. Therefore, our 

references to the dissent in the following text refer only to Commissioner Traynor. 

8

 Curiously, our dissenting colleague finds fault with this logical conclusion drawn from 

Alcoa. In Alcoa, the Commission acknowledged that “a mercury release that involves injury to, 

or causes the death of any person,” would qualify as an accident, by the express terms of section 

3(k) of the Act. 15 FMSHRC at 1824. We also agreed that “an event . . . ‘similar in nature or 

present[ing] a similar potential for injury or death as a mine explosion, ignition, fire or 

inundation’” might qualify as an “accident.” Id. at 1825-26. However, we noted that this 

determination must be made on a case-by-case basis. Thus, we expressly rejected the limitless 

scope he would have us impose through this case, in favor of an evidentiary determination 

grounded on a question of similarity to “events” – “mine explosions, ignitions, fires, and 

inundations” – that must be recognized as incidents, occurrences or conditions in the mine. 

Alcoa is, in fact, the obverse of the case before us. There, the Secretary presented evidence of a 

contaminant, but no evidence of any illness resulting from exposure. Here, of course, there is 

 

 (continued...) 

42 FMSHRC Page 499
Our dissenting colleague urges upholding the order on the basis of an expansive 

construction of the term “accident.” Slip op. at 29. But such a construction cannot exceed the 

boundaries of the Mine Act. MSHA and the Commission have limited jurisdiction over the areas 

delegated by Congress to our respective stewardship. As such, the Supreme Court’s approval of 

broad, sweeping powers over the activities of persons engaged in mining activities, Donovan v. 

Dewey, 452 U.S. 594, 602-06 (1981), must be limited to the activities within the scope of that 

authority. Thus, our colleague’s suggestion that any “injury” – including any illness from any 

cause, mining-related or not – may be subject to MSHA’s plenary control under Section 103(k) 

is erroneous. See Sec’y of Labor v. National Cement Co. of California, 573 F.3d 788, 795 (D.C. 

Cir. 2009) (Mine Act cannot be interpreted in a way that extends its coverage to matters which 

are not within operator's control or supervision). 

This erroneous interpretation not only distorts the meaning of the term “accident,” it 

departs from the stated purpose of Section 103(k), which is “to insure the safety of any person in 

the coal or other mine.” It thus entirely misses the point of designating any incident as an 

“accident.” A fundamental purpose of examining an “accident” is to protect other miners in the 

mine from whatever harmed the injured. See 30 U.S.C. § 813(k) (Secretary’s representative 

“may issue such orders as he deems appropriate to insure [sic] the safety of any person in a coal 

or other mine, and the operator of such mine shall obtain the approval of such representative” of 

any plan to recover persons or coal or return affected areas of the mine to normal). It is 

prospective, in that a Section 103(k) investigation of an “accident” is aimed at preventing the 

same consequence to other miners post-incident 

Such a limitless interpretation of the term “accident” would encompass incidents totally 

unrelated to mining—for example, complications from diabetes or a bout of influenza. Indeed, 

our dissenting colleague concludes that, given Mullins’ symptoms here while at the mine, 

“[s]ubstantial evidence supports a finding that Mullins suffered an injury.” Slip op. at 29. Thus, 

our colleague would broaden the term “accident” to encompass illness while at work—perhaps 

even including an upset stomach or an allergic reaction. The clear meaning of Section 103(k) 

binds the Commission as clear authority in this and future enforcement proceedings. 

In analyzing the reactions to Mullins’ illness underground, the Judge notes that “Mullins’ 

diagnosis and the rapid response of all involved parties demonstrate that his injury was a sudden 

event similar in nature to those requiring quick action under § 3(k).” 41 FMSHRC at 7. The 

“sudden event” posited by the Judge in this case was Mullins’ feeling ill, not an inundation of 

carbon monoxide—which was never found. The only rapid event in this incident was the 

transportation of Mullins off the section when he complained of chest pains. Hopefully the 

illness of any miner, for any reason, would be met with a rapid response. There is no evidence of 

 8 (...continued) 

evidence of an illness, but none whatsoever of any contaminant, or any other incident, 

occurrence, or condition similar to an explosion, fire, ignition, or inundation. In both cases, the 

causal nexus between a predicate “event” and a resulting “injury” fails on evidentiary grounds. 

Our decision today is therefore entirely consistent with Alcoa and the terms of the Act as we 

have interpreted them in our precedents. 

42 FMSHRC Page 500
any mining event adversely affecting the health or safety of miners on the section. No 

immediate action was or could be taken on the section to remedy any condition affecting miners 

because no hazard was found. No citations were ever issued for lack of an appropriate response 

to any conditions in the mine. Moreover, the section 103(k) order was not issued until nearly 

eight hours after Mullins got sick on the section. Nothing in the statute equates response time of 

reactions to a miner’s illness as being the determining factor of an “accident.” 

In Pattison, 688 F.3d at 513, the Eighth Circuit recognized that the accident 

determination should focus on the presence of dangerous mining conditions. In other words, the 

predicate for an accident as defined by the Mine Act is an event in or condition of the mine. 

Under Pattison, Id. at 512-14, the Judge’s determination that an incident in a mine constituted an 

“accident” must be supported by substantial evidence.9

 The Eighth Circuit found that neither the 

Mine Act nor our case-law had specified a standard of review for orders issued by MSHA under 

section 103(k) of the Mine Act. Therefore, the Eighth Circuit held that the Judge should apply 

the arbitrary and capricious test for any non-factual agency determinations related to a section 

103(k) order, 688 F.3d at 513, but noted that the substantial evidence test applied to factual 

determinations, a point overlooked by our dissenting colleague. Id. at 514. Similarly, in Alcoa, 

15 FMSHRC at 1824, we suggested that the accident determination was “evidentiary in nature” 

(in this context, we reviewed whether the evidence established that miners were overexposed to 

mercury vapor or had come into contact with liquid mercury). Id. 

Our colleague misses and misstates the issue before the Commission. The issue, 

therefore, is not whether the issuance of the 103(k) order was an abuse of discretion. When a 

Judge does not find substantial evidence to support a finding that an accident has occurred, the 

Judge must vacate any such order. In our colleague’s line of reasoning, any time a miner gets 

sick in a mine it would prove an “accident” has occurred regardless of the nature or cause of the 

sickness. That, of course, is wholly at odds with the plain meaning of accident and the statutory 

definition.10

When reviewing a Judge’s factual determination, we are bound by the terms of the Mine 

Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). We have defined 

substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to 

support [the Judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 

(Nov. 1989)(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 

9

 In Friends of Richards-Gebaur Airport, 251 F.3d 1178, 1184-85 (8th Cir. 2001), the 

Eighth Circuit distinguished an agency’s non-factual determination, which the court reviewed 

under the arbitrary and capricious standard, from an agency’s factual finding, which the court 

reviewed under the substantial evidence test. Both the Mine Act and the statute at issue in 

Friends of RGA specify that the substantial evidence standard shall be used to evaluate findings 

of fact. 

10 Our dissenting colleague states that, because in his estimation our interpretation of 

section 103(k) is plainly wrong, it is not binding precedent and need not be followed. Slip op. at 

29. A unanimous decision is no prerequisite for binding precedent. 

42 FMSHRC Page 501
Accordingly, the proper test for the existence of an “accident,” here, is the substantial evidence 

test. 

In his decision, the Judge recognized that “M-Class presented credible evidence 

demonstrating that no elevated carbon monoxide levels were detected.” 41 FMSHRC at 9. 

Rather than ruling on this basis, the Judge essentially found there was an accident because the 

inspector had reason to believe there was an accident when he arrived at the mine.11 Thus, the 

Judge found that the inspector’s belief, however unfounded, that there was an accident could 

validate a section 103(k) order even if the evidence showed no accident actually occurred. 

Therefore, the case raises two questions. First, did the event involving Mullins constitute 

an accident? If so, that would be the end of the matter. If not, the second question arises - is a 

section 103(k) order valid when an inspector issues the order with a good faith belief that an 

accident occurred when, in actuality, an accident did not occur? 

1. The Event Involving Mullins was Not an Accident within the Meaning of 

the Mine Act. 

In his determination of an “accident,” the Judge found the event could be classified as an 

“inundation” of carbon monoxide or as an “injury.”12 Regardless of whether such an event were 

called an injury, illness, or sickness, the gravamen of an “accident” is that it must arise from a 

condition, practice or occurrence in the mine. 

The one item of evidence—the escalation report (Sec’y Ex. 7)—purportedly supporting 

an allegation of carbon monoxide poisoning is seriously problematic. That report contains 

hearsay of a purported telephone call from Dr. Bosley reporting that Mullins suffered carbon 

monoxide poisoning. A police dispatcher took the call from Dr. Bosley. A police dispatcher 

named “Amos Abbot,” without it being clear whether Mr. Abbot was the same dispatcher who 

spoke with the doctor, called an unidentified person on the MSHA hotline who, in turn, called 

the district office. None of this evidence purports to be quoting Dr. Bosley directly. Although 

11 The Judge determined that an accident had occurred because when the inspector issued 

the order, he relied on the escalation report, which “rationally connect[ed] Mullins’ injury to a 

potential . . . elevation of carbon monoxide at the mine.” 41 FMSHRC at 8-10. Our colleague 

would hold that Mullins felt sick and that this is sufficient under the Act. Of course, that entirely 

misses the point of section 103(k) and the definition of an accident. A miner who enters the 

mine with a broken bone most definitely has suffered an “injury” at some point in the miner’s 

life. However, it would be nonsense to say that when a miner enters the mine with a previously 

broken bone such entry constitutes an accident within the meaning of section 103(k) justifying 

closure of a section of the mine. 

12 While section 3(k) of the Mine Act states an “accident includes a mine explosion, 

mine ignition, mine fire, or mine inundation, or injury to, or death of, any person,” we need not 

discuss whether carbon monoxide poisoning would constitute an “injury” or would fit within 

section 3(k) by virtue of Congress’ use of the word “includes” in defining an accident because 

there is no evidence of excess carbon monoxide in the mine at any relevant time. 

42 FMSHRC Page 502
the gist of what the doctor said may be accurate, there is no certainty that the message passed 

through four calls accurately reflects Dr. Bosley’s statement. 

In fact, there is no verification of Dr. Bosley’s statement whatsoever. Dr. Bosley was 

never interviewed by the inspector. The Secretary failed to call Dr. Bosley as a witness. 

Therefore, the only evidence of a carbon monoxide inundation is quadruple hearsay from a 

witness who did not testify at the trial and whom MSHA did not interview. Further, as noted, 

Mullins himself did not testify. 

 All the other evidence rebuts any indication that Mullins was poisoned by an inundation 

of carbon monoxide while working in the mine. 

• There is no evidence that any other miner who worked with Mullins that day was 

exposed to any elevated level of carbon monoxide. For example, Parker Phipps used 

a gas spotter to measure levels of carbon monoxide while he worked with Mullins that 

day. Phipps did not detect any elevated levels of carbon monoxide, as he informed 

Bob Bretzman, a MSHA field office supervisor, during a phone call later that 

evening. 

• There is no evidence that any other miner who worked with Mullins on February 24 

suffered chest pains, breathing difficulties, or any other symptoms consistent with 

exposure to excessive carbon monoxide. 

• After speaking with Bretzman on that February 24 evening call, Phipps sent a miner 

to inspect the area where Mullins had been working. The miner reported back to 

Phipps that he did not detect any elevated levels of carbon monoxide in the area. 

• On the night of the event, shortly after arriving at the mine, Inspector Naas reviewed 

the records of the monitoring system and of a gas spotter. The inspector reviewed 

these records before proceeding underground. He did not find any evidence of 

elevated carbon monoxide for the time and area at issue. 

• During his underground inspection that immediately followed, the inspector used a 

gas spotter to measure the levels of carbon monoxide in the area at issue. He did not 

detect any elevated levels of carbon monoxide. 

• In the early morning hours of February 25, Inspector Naas started the air compressor, 

the only machine that was even a possible source of carbon monoxide, to check it 

while it was running. There was no evidence of carbon monoxide emissions during 

the inspector’s test, or any other evidence indicating that the compressor may have 

exposed miners to elevated levels of carbon monoxide. 

• Mullins carried a gas spotter to measure the levels of carbon monoxide during his 

work on February 24. Although his gas spotter was not found following the accident, 

our dissenting colleague fails to observe that Mullins did inform the inspector that he 

did not detect any elevated levels of carbon monoxide with his spotter. 

• The state enforcement agency took bottle samples of the air in the mine area where 

Mullins worked. The results were well within permissible limits for carbon 

monoxide. 

• No witness identified any other possible source of carbon monoxide. 

42 FMSHRC Page 503
• During the hearing, Dr. Michael Mullins,13 an expert toxicologist, testified as to his 

review of Mitchell Mullins’ medical records while he was hospitalized from February 

24 through February 27, particularly regarding the levels of carbon monoxide in the 

miner’s blood following his evacuation from the mine. 

o Mitchell Mullins’ initial carboxyhemoglobin concentration, measured at 

around 4:24 p.m. on February 24, was 4.8%. The next morning, at around 

6:18 a.m. on February 25, it had decreased to 3.4%. However, the following 

morning, at around 5:45 a.m. on February 26, it had increased to 4.2%. 

o Dr. Michael Mullins’ testimony was that symptoms of carbon monoxide 

poisoning occur when the carboxyhemoglobin concentration is above 15%. 

o Mitchell Mullins’ initial carboxyhemoglobin measurement at the hospital was 

only 4.8% – a level too low to cause symptoms. 

o Dr. Michael Mullins also testified that the increased carboxyhemoglobin 

concentration during the hospital stay suggested that the level of carbon 

monoxide in Mitchell Mullins’ blood was caused by a condition unrelated to 

the mine, such as a smoking habit. 

Dr. Mullins’ testimony and interpretation of the carboxyhemoglobin data was not 

rebutted by any other witness. Consequently, not only was there no corroboration whatsoever of 

the hearsay statement attributed to Dr. Bosley, upon which the Secretary premises an “accident” 

occurred, but indeed, there is mountainous unrebutted evidence to the contrary. The Judge’s 

finding that there was an inundation of carbon monoxide sickening Mullins is not merely 

unsupported by substantial evidence. It is rebutted by virtually all the evidence in the case. 

 In light of this mountainous evidence, our dissenting colleague refrains from making a 

finding that substantial evidence supports a view that Mullins suffered carbon monoxide 

poisoning in the mine. That would be clearly erroneous, given the established facts. Instead, a 

different equally erroneous suggestion is offered—that, whatever the cause, Mullins felt sick, 

and so an “accident” has occurred. It is our duty to follow the law—it is not our job to expand 

the law beyond the intent of Congress and common sense. 

 Moreover, our colleague’s dissent contains a number of errors, and statements counter to 

his position. First, our colleague states that Mullins was working near a compressor and that 

“[n]o other potential cause of the injuries was identified during the investigation” Slip op. at 28 

(emphasis added). We agree. Testing by MSHA and the State agency demonstrated that the 

compressor was not emitting any consequential, much less sickening, levels of carbon monoxide. 

Consequently, those tests eliminate the compressor as a potential source of injury. It follows, 

therefore, that there was no potential cause of carbon monoxide poisoning to Mullins in the 

mine. 

 Our colleague states that “M-Class failed to produce Mullins’ gas spotter to 

investigators.” Id. Use of the word “failed” leaves an implication that M-Class may have been 

less than forthcoming. There is no support for such an implication in the record and the 

13 Dr. Michael Mullins is unrelated to Mitchell Mullins, the miner at issue. 

42 FMSHRC Page 504
Administrative Law Judge did not draw such implication. Again, the Judge found that “Mullins 

acknowledged that his spotter did not go off while he was working.” 41 FMSHRC at 5. Nor 

did any other miner’s spotter alert at any time. Id. There is no basis for drawing an adverse 

inference here, because there is no close evidentiary question at issue. There is no evidence at 

all, from any source, supporting excessive carbon monoxide at any relevant time. Mullins was 

transported rapidly from the mine during what was perceived as a medical emergency. A 

reasonable conclusion from the evidence suggests that Mullins’ spotter may have been lost in 

transit, which is probably why the Judge found the absence of the spotter to be unremarkable. 

In a footnote, our colleague states that our opinion may lead to an absurd finding that an 

“accident” may not arise from an injury or death due to an “unknown origin.” Slip op. at 29 n.6. 

Again, he mischaracterizes our holding and misses the point. The gravamen of an “accident” is 

that it must arise from a condition, practice or occurrence in the mine. That is the qualification 

for determination of an accident attributed to any death or injury. 

2. A Valid Section 103(k) Order Requires the Occurrence of an Accident 

 The Judge found the inspector had a reasonable basis to believe an accident occurred 

when he issued the section 103(k) order. This leads us to our second question. Is a section 

103(k) order valid when an inspector issues the order with a good faith belief that an accident 

occurred when, in actuality, an accident did not occur? 

 The Commission follows the cardinal rule of statutory interpretation and application. We 

apply the statute as written, looking first to the ordinary meaning of the words and remaining 

faithful to the plain words of the statute. Schindler Elevator Corp. v. United States ex rel. Kirk, 

563 U.S. 401, 407 (2011); see also Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 

U.S. 246, 253 (2004) (“Statutory construction must begin with the language employed by 

Congress and the assumption that the ordinary meaning of that language accurately expresses the 

legislative purpose”)(quoting Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 

(1985)); Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995)(“When terms used in a 

statute are undefined, we give them their ordinary meaning”)(citing FDIC v. Meyer, 510 U.S. 

471, 476 (1994)). If the words are clear, we may not make any further inquiry. Schindler 

Elevator Corp., 563 U.S. at 412 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). 

Section 103(k) could not be clearer. It states in relevant part that, 

In the event of any accident occurring in a coal or other mine, an 

authorized representative of the Secretary, when present, may issue 

such orders as he deems appropriate . . . . 

30 U.S.C. § 813(k) (emphasis added). 

The Mine Act authorizes issuances of orders under section 103(k) “in the event of an 

accident . . . .” It does not say “if the inspector thinks there is an accident,” or “if there might 

have been an accident.” It says plainly and without room for doubt that a section 103(k) order 

may be issued in the event of an occurrence of an “accident.” Few legal principles match the 

clarity of our obligation to apply the words of the Mine Act as they appear in the statute and the 

42 FMSHRC Page 505
Mine Act clearly and unequivocally authorizes a section 103(k) order “in the event of an 

accident.” Turning again to Pattison, the Eighth Circuit found, “Because the Act only provides 

for issuance of a § 103(k) order ‘[i]n the event of an[ ] accident,’ 30 U.S.C. § 813(k), the 

Secretary lacked authority to issue the order if the roof fall was not an accident.” Pattison, 

688 F.3d at 513. This holding accords completely with the command that we apply the Mine Act 

as written and are holding today. We find no basis to suggest that MSHA may issue a valid 

order when it clearly lacked the authority to do so. 

In a footnote, our colleague suggests that our opinion would “narrow the broad discretion 

Congress intended to provide MSHA to investigate injuries in mines and protect the life and 

safety of miners.” Slip op. at 29 n.6. That is not our holding. When an inspector arriving at a 

mine has sufficient information to form a good faith belief that an accident has occurred, he may 

issue an appropriate section 103(k) order. Neither the inspector nor MSHA will suffer any 

adverse repercussions from an inspector’s exercise of a reasonable, good faith judgment, albeit 

erroneous, in the interest of miner safety. 

However, such actions do not sustain an order or a citation when the statutory 

requirements for issuance of an order or citation do not exist. For example, inspectors issue 

citations based upon a belief that a violation has occurred. Sometimes the inspector is wrong. 

No violation has occurred. It would be nonsensical to argue that an erroneous citation must be 

affirmed because the inspector reasonably thought he was right at the time even though the 

evidence shows no violation occurred. There would be little purpose to providing a right to 

contest the government’s action. Government edicts issued outside the bounds of statutory 

authority must be vacated.14 

Moreover, history tells us that there is no chilling effect to the vacation of erroneously 

issued citations—inspectors continue to issue them. Likewise, there is no chilling effect from the 

vacation of an erroneously issued section 103(k) order. 

Thus, when an initial belief turns out to be incorrect and an accident did not occur, it 

behooves MSHA to vacate the order rapidly to permit resumption of operations. When MSHA 

fails to do so, the operator has a right to contest the validity of the order. Further, when the 

interruption is significant, an operator should be able to rely upon the availability of an expedited 

hearing to obtain a speedy adjudication of its right to continue mining.15 

14 Our colleague seems to believe that a 103(k) order must be upheld in the absence of an 

accident, or that substantial evidence supports a finding of an “accident” in this case. Neither 

premise is valid, and our reference to citations for violations is intended simply to illustrate the 

fallacy of his suggestion that a challenged government action may be sustained as “valid” in the 

absence of a necessary element or substantial evidentiary support. 

15 Commission rules provide for the filing of motions to expedite. 29 C.F.R. § 2700.52. 

The availability of a motion for expedited hearing provides the route for expedited consideration 

of orders that may cause significant damage to the operator during their duration. If MSHA 

insists upon claiming an accident occurred when, as here, substantial evidence does not support 

such an event, the Commission provides the only source of redress for the operator.

42 FMSHRC Page 506
When it turns out the inspector was wrong and an accident did not occur, we cannot 

affirm an invalid section 103(k) order because the inspector’s belief was a good faith mistake. 

Contrary to Commissioner Jordan’s comment, Slip op. at 21, evidentiary questions, such as those 

raised and unresolved in this case, are relevant in subsequent section 103(k) proceedings. In this 

case, not only is there not substantial evidence of an accident but the evidence compellingly 

demonstrates the absence of an accident. That being the case, there was no “event of an 

accident” upon which to base a section 103(k) order, and the issued section 103(k) order must be 

vacated.16

 

C. We Need Not Consider the Second Modification to the Order 

On February 25, Inspector Naas modified the section 103(k) order, releasing the area at 

issue for normal operations. However, on February 26, Inspector Naas made a second 

modification to the order, removing the air compressor from service. On March 15, the operator 

requested an expedited hearing on the section 103(k) order, a request the Judge denied on March 

30. Throughout this period, MSHA continued to hold the compressor. A few days later, on 

April 4, MSHA decided to terminate the order. Therefore, the second modification, which 

removed a compressor from service, remained in effect from February 26 to April 4. There is no 

evidence in the record regarding whether MHSA did any testing of the compressor after it took 

control of it, let alone evidence of findings of such testing.17

The operator claims that the Judge erred in finding that the second modification to the 

order was reasonably tailored to the circumstances at issue. In addition, the operator contends 

that, by denying its request for an expedited hearing, the Judge failed to provide a remedy for 

MSHA’s failure to release the compressor. 

The second modification was limited to the removal of a specific piece of equipment, and 

was subsequently modified permitting the equipment’s return to service without restriction prior 

to the adjudication of the section 103(k) order. Hence, the operator’s arguments regarding the 

modification are subsumed in the general issue of whether the section 103(k) order is valid. For 

16 M-Class obeyed the order throughout its duration. Therefore, we need not consider 

application of penalties for disobeying a section 103(k) order while it is in force if the order is 

later vacated. Case law provides a strong caution to any operator contemplating such ill-advised 

action. DQ Fire & Explosion Consultants, Inc., 36 FMSHRC 3090 (Dec. 2014) (finding that a 

citation issued for an operator’s non-compliance with a section 103(k) order should be 

designated high negligence) aff’d by 632 Fed.Appx. 622 (D.C. Cir. 2015) (upholding our 

determination of high negligence). In Wyoming Fuel, 14 FMSHRC at 1293, we also found that 

an invalid imminent danger order did not excuse non-compliance/ disobedience with that order 

(“we find no indication in the Mine Act . . . that the validity of an imminent danger order is a 

prerequisite to finding failure to comply with that order”). 

17 Of course, a section 103(k) order may not be used improperly to allow MSHA to 

pursue matters beyond the regular administration of the Mine Act as applied to a specific 

operator. Misuse of a section 103(k) order would be a serious abuse. 

42 FMSHRC Page 507
those reasons, and since we have vacated the specific order, we need not address arguments 

related to the second modification and decline to do so. 

IV. 

Conclusion 

 For the foregoing reasons, the Judge’s decision finding an accident is reversed, and Order 

No. 9104295 is vacated. 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner

42 FMSHRC Page 508
Commissioner Jordan, dissenting: 

The section 103(k) order at issue here has been terminated.1

 Nothing the Commission 

can say or do will have any concrete effect on the operator or its use of the air compressor. 

Accordingly, this case is moot, and thus the Commission is without jurisdiction to decide it. 

A. This Case is Moot 

A case is moot when “the issues presented no longer exist or the parties no longer have a 

legally cognizable interest in the outcome.” North American Drillers, LLC, 34 FMSHRC 352, 

358 (Feb. 2012), citing Climax Molybdenum Co., 703 F.2d 4476, 451-52 (10th Cir. 1983). Here, 

because the initial section 103(k) order was terminated and the air compressor was subsequently 

released back into service with no restrictions on its use, the order does not affect any activities 

at the mine. In fact, the mine has the right to continue to operate as if the section 103(k) order 

never existed. The operator’s financial interests are not at stake because no penalty was issued. 

There is simply no justiciable controversy at issue, as the operator has no tangible interest in the 

outcome. Despite the contentions of my colleagues, even if the Commission were to vacate the 

order, this would have no practical impact on M-Class. 

Nevertheless, the majority claims that the operator has a “legally cognizable interest” in 

having the terminated 103(k) order vacated. Slip op. at 6-7. But they fail to identify any but the 

most speculative of legal consequences. 

My colleagues acknowledge that the section 103(k) order does not allege a violation of 

any health or safety standard. Slip op. at 6. Furthermore, the Secretary does not factor the 

issuance of a section 103(k) order into any of the progressive enforcement mechanisms under the 

Mine Act, e.g. penalty proposals pursuant to section 110, 30 U.S.C. § 820, or pattern of 

violations under section 104(e), 30 U.S.C. § 814(e). In addition, because neither this type of 

order nor an accident that triggers it constitutes a violation, the issuance of such an order is not 

considered in a mine’s history of violations for purposes of MSHA’s future proposed penalty 

assessments. 

1

 Section 103(k) of the Mine Act states: 

In the event of any accident occurring in a coal or other mine, an 

authorized representative of the Secretary, when present, may issue 

such orders as he deems appropriate to insure the safety of any 

person in the coal or other mine, and the operator of such mine 

shall obtain the approval of such representative, in consultation 

with appropriate State representatives, when feasible, of any plan 

to recover any person in such mine or to recover the coal or other 

mine or return affected areas of such mine to normal. 

30 U.S.C. § 813(k). 

42 FMSHRC Page 509
Nonetheless, the majority makes the vague assertion that “[t]he mere listing of an 

‘accident,” in the form of a section 103(k) order, in the compliance history of a mine, is a clear 

implication to the public that something occurred at that mine that affected the health and safety 

of miners.” Slip op at 6. My colleagues appear to be suggesting that the Commission should use 

its resources to decide this case so that M-Class will have the opportunity to vindicate its 

reputation. However, they fail to persuasively explain what economic, psychic or other harm 

will befall an operator whose record indicates that it was subject to a section 103(k) order.2

 

Members of the mining community are well aware that, while perhaps not welcome, such 

orders are not uncommon.3

 They are not a per se black mark against an operator’s reputation. 

Even if they were, the majority points to no legal precedent supporting the view that reputational 

harm is a cognizable interest under the Mine Act. As the D.C. Circuit has cautioned, “[a]t some 

point . . . claims of reputational injury can be too vague and unsubstantiated to preserve a case 

from mootness.” McBryde v. Comm. to Review Circuit Council Conduct and Disability Orders 

of the Judicial Conference of the United States, 264 F.3d 52, 57 (D.C. Cir. 2001). This is an apt 

description of the majority’s assertions here. 

Also speculative is the majority’s supposition that MSHA might modify the terminated 

section 103(k) order to allege a violation of a health or safety standard, which would then 

adversely affect the operator’s repeat violation history. Slip op. at 7. Why MSHA would do so 

more than two years after this incident occurred is mystifying. Whether MSHA would have the 

legal authority to do so is unclear. My colleagues cite to no precedent in which, after a hearing 

and an appeal to the Commission, MSHA has attempted to modify a section 103(k) order to 

charge a violation.4

2

 As a threshold matter, they also fail to substantiate their implicit premise that members 

of the public would either be motivated to research M-Class’s safety record, or would be 

scrolling through the Mine Safety and Health Administration’s extensive Data Retrieval System 

(where this information is displayed), and would thereupon determine that M-Class had been 

subject to a section 103(k) order. 

3

 According to the MSHA Mine Data Retrieval System, M-Class received 14 section 

103(k) orders in 2018 and 10 in 2019. That system also reveals that approximately 40 accidents 

occurred at the mine in 2018, but the events of February 24 that led to the section 103(k) order at 

issue here are not included among them. 

4

 The cases they rely on, slip op. at 7, do not even mention the modification of such 

orders. Rather, in Wyoming Fuel Co., 14 FMSHRC 1282, 1288-89 (Aug. 1992), the 

Commission held that modification of a citation to a different safety standard was not precluded. 

In Ten-A Coal Co., 14 FMSHRC 1296, 1298 (Aug. 1992), we permitted a modification of a 

citation to a section 104(d) withdrawal order 24 hours after the termination of the original 

citation. Finally, we recognized the Secretary’s right to modify a section 107(d) imminent 

danger order to allege a violation in Westmoreland Coal Co., 8 FMSHRC 1317, 1328 (Sept. 

1986) because the Mine Act explicitly states that the issuance of an imminent danger order shall 

not preclude the issuance of a citation under section 104. 30 U.S.C. § 817(a). 

42 FMSHRC Page 510
They also fail to take into account that a mine inspector has no choice but to issue a 

citation whenever the inspector observes a violation of a mandatory safety standard. 30 U.S.C. 

§ 814(a) (“If, upon inspection or investigation, the Secretary or his authorized representative 

believes that an operator of a coal or other mine . . . has violated this Act, or any mandatory 

health or safety standard, rule, order, or regulation promulgated pursuant to this Act, he shall, 

with reasonable promptness, issue a citation to the operator.”) (emphasis added). Thus the 

Secretary must issue a citation upon discovery of any violation of a mandatory standard. Thus, 

operators are cited whenever an inspector finds a violative condition, whether or not a section 

103(k) order is in place. Hence, the majority’s concern regarding a possible modification of the 

section 103(k) order to a citation is completely unfounded. 

B. The “Capable of Repetition yet Evading Review” Exception to the Mootness 

Doctrine Does Not Apply in this Case 

My colleagues also rely on a frequently-used exception to claims of mootness, 

concluding that this issue is capable of repetition yet evading review. Slip op. at 7-8. However, 

a careful examination of the purpose of this exception and the case-law interpreting it 

demonstrates that it does not apply to this case. 

The courts have sensibly carved out this exception in cases where a dispute between the 

parties is resolved before a ruling can be handed down, and when there is a substantial likelihood 

that the question will recur. North American Drillers, 34 FMSHRC at 358. There is a sound 

rationale for this doctrine: if a party can establish that the duration of a challenged action is too 

short to be litigated before it expires and there is a reasonable expectation that the party will be 

subjected to the same action again, a legal ruling relevant to that future action is a justifiable use 

of a court’s resources. This is so because the ruling will be relevant in subsequent proceedings 

where the same issue appears. Here though, it is unlikely that the majority’s opinion, which is 

based almost entirely on its analysis of the singular circumstances presented in this proceeding, 

will be the basis of a ruling in a future case. 

Although the majority attempts to characterize this controversy as a legal one, infra at 6-

7, its ruling is clearly based on my colleagues’ view of the evidentiary record. See Slip op. at 12-

15. The fact-based controversy before us involves specific inquiries such as (1) whether the 

miner in fact had carbon monoxide poisoning; (2) if he did, was it caused by something in the 

mine; (3) could the air compressor have caused his illness? Resolution of these questions will in 

all probability be irrelevant in subsequent section 103(k) proceedings.5

5

 Nonetheless, the majority relies on the concept that a case is not moot when an “agency 

terminates an enforcement action when challenged, but retains the ability to file subsequent 

actions because its enforcement action has not been adjudicated as improper.” Slip op. at 8. But 

the only enforcement action the majority adjudicates as “improper” in this case is the Secretary’s 

decision to issue an order under section 103(k) when a miner was hospitalized for carbon 

monoxide poisoning. I daresay that the chances of this unique situation being repeated in 

subsequent cases are slim, and even if this fact pattern occurs again, the specific circumstances 

might lead to a different legal result. 

42 FMSHRC Page 511
In this regard, this case is similar to North American Drillers, 34 FMSHRC at 352. In 

North American Drillers, the operator was charged with violating its shaft plan because it used 

non-permissible equipment. The Secretary subsequently vacated the citation and the Judge 

dismissed the proceedings as moot. North American argued that this was erroneous because it 

faced recurrent harm, given that the Secretary allegedly declared that he would continue to 

enforce the permissibility regulation against the operator in the future under identical 

circumstances. The Commission disagreed, stating: 

Shaft plans are mine-specific and are thus designed to address the 

unique conditions of a particular mine. . . . Therefore, whether 

North American is cited in the future for use of a non-permissible 

pump below the shaft collar will have to be considered in the 

context of the specific language of the plan in question. . . . Thus 

there is not a substantial likelihood that the question before us will 

reoccur, causing North American additional harm. Hence, 

resolution of whether North American violated the shaft plan . . . is 

not determinative of whether North American will violate some 

other plan for failure to use permissible equipment. 

Id. at 359. See also Spivey v. Barry, 665 F.2d 1222, 1234-35 (D.C. Cir. 1981) (concluding that 

case was moot because “[a] legal controversy so sharply focused on a unique factual context 

does not present ‘a reasonable expectation that the same complaining party would be subjected to 

the same actions again”). 

Clearly the series of events here that led to the initial section 103(k) order and the 

subsequent removal of the air compressor were “idiosyncratic and highly unlikely to recur.” See 

Marek v. Rhode Island, 702 F.3d 650, 654 (1st Cir. 2012) (concluding that the exception did not 

apply in a case in which an opponent of a planned development appealed the issuance of a permit 

but the permit expired and the development proposal was abandoned); see also Hamilton v. 

Bromley, 862 F.3d 329, 336 (3rd Cir. 2017) (ruling that the case was moot because the ‘“conduct 

complained of was . . . necessarily predicated on the unique features of [a] particular series of 

[events]’ and ‘[n]othing on this record apprises us of the likelihood of a similar chain of events.’” 

(citation omitted)); Fund for Animals, Inc. v. U.S. Bureau of Land Management, 460 F.3d 13, 

23 (D.C. Cir. 2006) (case could not be saved from mootness because it was “highly dependent 

upon a series of facts unlikely to be duplicated in the future”); PETA v. Gittens, 396 F.3d 416, 

424 (D.C. Cir. 2005) (finding a First Amendment challenge moot because “[t]o conclude that a 

dispute like this would arise in the future requires us to imagine a sequence of coincidences too 

long to credit. . . . The essential point is that the case before us is highly dependent upon a series 

of facts unlikely to be duplicated in the future”). Thus a Commission decision as to whether 

MSHA erred in closing a portion of this mine for a finite period of time will in all likelihood not 

inform future controversies regarding section 103(k) orders. See Public Utilities Comm. of the 

State of Cal. v. FERC, 100 F.3d 1451, 1460 (9th Cir. 1996) (“When resolution of a controversy 

depends on facts that are unique or unlikely to be repeated, the action is not capable of repetition 

and hence is moot”). 

42 FMSHRC Page 512
Perhaps mindful of the one-of-a-kind fact pattern underlying this case, my colleagues 

repeatedly invoke the potential reoccurrence of a “general legal wrong,” Slip op. at 8, as a 

rationale for going forward with this matter. They characterize such wrong as “the harmful 

impact of section 103(k) orders on the operator’s ability to use equipment at a mine,” and cite to 

the removal of the air compressor as justifying the adjudication of this matter. Slip op. at 8. 

Ironically, although they rely on its removal as a reason to go forward with this case, Slip op. at 

8, they ultimately conclude that they need not address this issue. Slip op. at 17. 

As the D.C. Circuit has cautioned, when defining “the injury that is capable of 

repetition”: 

[t]he opportunities for manipulation are great. The more broadly 

we define the wrongful conduct, the more numerous are the 

possible examples, and the greater the likelihood of repetition. . . 

.[W]here plaintiffs are resisting a mootness claim we think they 

must be estopped to assert a broader notion of their injury than the 

one on which they originally sought relief. Cf. Tallahassee 

Memorial Regional Med. Ctr. v. Bowen, 815 F.2d 1435, 1449-50 & 

n. 28 (11th Cir. 1987) (looking to complaint to determine scope of 

plaintiff’s alleged injury). 

Clarke v. U.S., 915 F.2d 699, 703 (D.C. Cir. 1990) (en banc). 

 

My colleagues’ reliance on Performance Coal Co., 642 F.3d 234 (D.C. Cir. 2011) is also 

unavailing. That case, which the Court held was not moot, involved the Secretary’s modification 

of a section 103(k) order. The operator sought temporary relief from the restrictions pursuant to 

section 105(b)(2) of the Mine Act. 30 U.S.C. § 815(b)(2). Before the Court could rule, the 

Secretary removed the offending protocols. The issue before the Court was one of classic 

statutory interpretation: does section 105(b) of the Mine Act permit an operator to seek 

temporary relief from a section 103(k) order? Resolution of this question clearly had 

ramifications for future cases in which temporary relief is requested under similar circumstances. 

 

Unlike the instant case, in Performance Coal, the legitimacy of the section 103(k) order 

was not at issue. In ruling on the mootness question, the Court made this clear, stating that “[t]he 

question then is not whether Performance Coal will again be subjected to the precise protocols at 

issue, but whether it will be subjected to further modifications from which it will seek temporary 

relief.” Id. at 237. 

In analyzing the “capable of repetition yet evading review” exception, the First Circuit 

has noted: 

the exception is not a juju, capable of dispelling mootness by mere 

invocation. Rather, the exception applies only if there is “a 

‘reasonable expectation’ or a ‘demonstrated probability’ that the 

same controversy will recur involving the same complaining 

party.” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1184, 

42 FMSHRC Page 513
71 L.Ed.2d 353 (1982) (quoting Weinstein v. Bradford, 423 U.S. 

147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975)). 

Oakville Dev. Corp. v. F.D.I.C., 986 F.2d 611, 614–15 (1st Cir. 1993). Because this test has not 

been met here, this exception to the mootness doctrine does not apply. 

 

In sum, because the adjudication of this case will provide no tangible legal benefit to the 

operator, and because it does not meet the standard for the exception to the mootness doctrine, I 

conclude that the matter is moot. Consequently, the Commission has no jurisdiction to hear this 

case. Accordingly, I respectfully dissent. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

42 FMSHRC Page 514
Commissioner Traynor concurring in part and dissenting in part: 

 I join my colleague Commissioner Jordan to conclude M-Class’s contest of the section 

103(k) “control order” is moot. However, I join the majority’s decision to review the order 

under an exception to the mootness doctrine. But the majority’s misapplication of the incorrect 

standard of review leaves me no choice but to strongly dissent from their judgment. My 

colleagues ignore that our review of the issuance or modification of a section 103(k) order looks 

to whether the agency’s discretionary decision was reasonable based on the facts known to the 

inspector at the time the decision was made. We do not engage in a retrospective secondguessing of the issuance of a section 103(k) order using information the decision-maker only 

knew or could have known after the decision was made. I also dissent from the majority’s 

attempt to limit the issuance of section 103(k) orders to “accidents” where the Secretary is able 

to prove the specific cause of the injury by a preponderance of the evidence. 

 On February 24, 2018, MSHA Inspector Brandon Naas arrived at the M-Class No. 1 

underground mine to conduct an investigation into the injuries that hospitalized miner Mitchell 

Mullins. Naas issued an order pursuant to section 103(k) of the Mine Act to suspend operations 

at the Headgate #6 section.1 Naas started his investigation by reviewing pertinent records, 

including those of the mine’s carbon monoxide monitoring system. Naas was not able to locate 

the injured miner’s gas spotter, which would have indicated if he had been personally exposed to 

elevated levels of carbon monoxide. The inspector proceeded underground and took carbon 

monoxide measurements around Headgate #6. Naas did not find any evidence of elevated levels 

of carbon monoxide or any other dangerous conditions and, accordingly, modified the 103(k) 

order to permit M-Class to resume normal mining operations in the area. 

On February 26, Naas returned and interviewed other miners who had worked with 

Mullins on February 24. He learned that Mullins had been operating and working around the 

diesel air compressor prior to falling ill and this was the only piece of equipment in use to which 

Mullins was not regularly exposed. Naas modified the section 103(k) order to prohibit further 

use of the compressor pending an investigation into whether it was defective. On March 1, MClass submitted a proposed action plan to prevent exposure to carbon monoxide. MSHA 

determined that the proposal was insufficient. On March 15, M-Class contested the order with 

the Commission. On April 4, MSHA terminated the order. 

A. M-Class’s Contest of the Order is Moot, but Review is Appropriate under an 

Exception to the Mootness Doctrine. 

 I join Part A of Commissioner Jordan’s dissenting opinion, finding the operator’s case is 

entirely moot. Slip op. at 19-21. 

However, I join my colleagues in the majority taking review of the decision below under 

the ‘capable of repetition but evading review’ exception to the mootness doctrine. The exception 

1

 Section 103(k) of the Mine Act provides in pertinent part that “[in] the event of any 

accident occurring in a coal or other mine, an authorized representative of the Secretary, when 

present, may issue such orders as he deems appropriate to insure the safety of any person . . . .” 

30 U.S.C. § 813(k) (emphasis added). 

42 FMSHRC Page 515
applies when “(1) the challenged action [is] in its duration too short to be fully litigated prior to 

its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining 

party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149 

(1975). When examining whether the action at issue is likely to repeat, “it is not whether the 

precise historical facts that spawned the plaintiff's claims are likely to recur, but instead whether 

the legal wrong complained of by the plaintiff is reasonably likely to recur.” Performance Coal 

Co. v. FMSHRC, 642 F.3d 234, 237 (D.C. Cir. 2011) (quoting DelMonte Fresh Produce v. 

United States, 570 F.3d 316, 324 (D.C. Cir. 2009)). 

 

I find that a condition imposed during the pendency of the order – the restriction against 

using certain equipment – is a putative harm capable of repetition, but otherwise evading review 

because the pendency of a 103(k) order is often too short to be fully litigated. Slip op. at 7-9. 

Therefore, I agree it is appropriate here to take review of the otherwise moot question of whether 

the challenged decisions to issue and modify the now terminated 103(k) order were an abuse of 

discretion. 

B. The MSHA Inspector Did Not Abuse his Discretion in Issuing and Modifying the 

section 103(k) order. 

Section 103(k) provides an MSHA inspector the authority to “assume control of the mine 

in the event of an accident.” Jim Walter Res., Inc., 37 FMSHRC 1868, 1868 n.1 (Sep. 2015); see 

e.g., DQ Fire & Explosion Consultants, Inc., 36 FMSHRC 3090, 3091 (Dec. 2014) (section 

103(k) order issued following an explosion that killed 29 miners at a coal mine). It provides the 

inspector the “plenary power to make post-accident orders for the protection and safety of all 

persons.” Miller Mining Co., v. FMSHRC, 713 F.2d 487, 490 (9th Cir. 1983). 

The Commission reviews the issuance of a section 103(k) order, the scope of the order 

and any subsequent modification for an abuse of discretion.2

 See Jim Walters, 37 FMSHRC at 

1871; see also Pattison Sand Co. v FMSHRC, 688 F.3d 507, 513 (8th Cir. 2012). “Given the 

broad discretion afforded the Secretary, her issuance of a 103(k) order, or subsequent 

modification, is reviewable for an abuse of discretion.” Clintwood Elkhorn Mining Co., 32 

FMSHRC 1880, 1893-94 (Dec. 2010). Under the abuse of discretion standard, the Judge 

considers whether “the agency examine[d] the relevant data and articulate[d] a satisfactory 

explanation for its actions including a rational connection between the facts found and the choice 

made.” Id. at 1893-94. 

Consistent with the purpose and nature of abuse of discretion review, a reviewing court 

looks to whether the challenged decision bears a rational connection to the facts and information 

available to the decision-maker at the time the relevant discretionary decision was made. See

PBGC v. LTV Corp., 496 U.S. 633, 654 (1990) (under an abuse of discretion standard the court 

2

 A mine operator that contests issuance or modification of a section 103(k) order may 

move for expedited consideration of its contest pursuant to Commission Procedural Rule 52, 20 

C.F.R. § 2700.52. The grant or denial of a motion for expedited review is within the discretion 

of the Judge, but exercise of the discretion should take into consideration the parties’ positions as 

to the likelihood expedited review would prevent substantial harm. 

42 FMSHRC Page 516
evaluates “the agency’s rationale at the time of decision.”). “When examining whether an 

agency decision "was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law,’ as specified in 5 U.S.C. § 706(2) (A) . . . the focal point for judicial 

review should be the administrative record already in existence, not some new record made 

initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973); see, e.g. Golden Oak 

Mining, 12 FMSHRC 1360, 1365 (June 1990) (ALJ) (“In determining whether [a District 

Manager] abused his discretion, I have to look to the facts and circumstances which were made 

known to him at the time. Subsequent developments or changes in the mine situation cannot be 

used to show an abuse of discretion.”) 

Thus, Commission Judges review a decision to issue, modify, continue or terminate a 

section 103(k) order by looking to whether the decision was rationally connected to the facts 

before the decision-maker, and not whether such facts were supported by substantial evidence.3

 

The Commission in turn gives de novo review to our Judges’ determinations as to whether 

agency action is arbitrary and capricious, and we review our Judges’ findings of fact for 

substantial evidence. Pattison Sand, 688 F.3d at 514 (holding that a judge’s findings of fact - not

the factual predicates for the inspector’s discretionary decision-making - are subject to 

substantial evidence review). 

Here, the MSHA inspector’s decision to issue the section 103(k) order was rationally 

based on the information available to him. He determined that a miner was working in the mine, 

experienced a headache, dizziness, chest pains, a rapid heart rate, and difficulty breathing. The 

miner – Mitchell Mullins - was administered oxygen and evacuated by ambulance to the local 

hospital where the treating physician diagnosed him with carbon monoxide poisoning.4 Mullins 

had been working in close proximity to a diesel motor exhausting carbon monoxide. On the 

basis of this information, the inspector reasonably concluded there had been an “injury to . . . [a] 

person” at the mine and thus an “accident” according to section 3(k). Accordingly, I would 

affirm the Judge’s conclusion that the inspector did not abuse his discretion in issuing the order. 

Furthermore, I would affirm the Judge’s conclusion that the inspector did not abuse his 

discretion in modifying the order based upon his belief that a miner suffered carbon monoxide 

poisoning. See Miller Mining Co. v. FMSHRC, 713 F.2d 487, 490 (9th Cir. 1983) (requiring 

modifications of section 103(k) orders to be “reasonably tailored to the situation.”). First, 

Inspector Naas quickly modified the order to allow the return of normal mining after concluding 

that there was no present danger to miners in the Headgate #6 section. Naas later modified the 

order to prevent the return of the air compressor to service pending further investigation for a 

3

 The “substantial evidence” test can be applied to set aside agency action only in 

“certain narrow, specifically limited situations.” Citizens to Preserve Overton Park, Inc. v. 

Volpe, 401 U.S. 402, 414 (1971) (overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 

105 (1977)). “Review under the substantial-evidence test is authorized only when the agency 

action is taken pursuant to a rulemaking provision of the Administrative Procedure Act itself, or 

when the agency action is based on a public adjudicatory hearing.” Citizens to Preserve Overton 

Park, 401 U.S. at 414. 

4

 Mullins went on to spend 72 hours in the hospital on 100% oxygen. 

42 FMSHRC Page 517
defect. Mullins had operated the compressor immediately before his hospitalization. No other 

potential cause of the injuries was identified during the investigation. M-Class failed to produce 

Mullins’ gas spotter to investigators. I conclude that substantial evidence supports a finding that 

the modification to the order was rationally connected to the facts then available to MSHA and 

the temporary removal of the diesel air compressor was reasonably tailored to the situation. The 

record evidence fully supports a finding that the inspector did not abuse his discretion. 

C. The Majority Errs in their Interpretation of the term “Accident.” 

 Section 103(k) provides the Secretary the authority to issue a control order “in the event 

of an accident.” According to the statutory text at section 3(k) of the Act, an “‘accident’ includes

a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any 

person.” 30 U.S.C. § 802(k) (emphasis added).5 In Pattison Sand, 688 F.3d at 512-13, the Court 

held that the term “accident” should be interpreted expansively and section 3(k)’s use of the term 

“includes” indicates that the enumerated list of types of accidents was not intended to be 

exclusive. The Eighth Circuit held that it was appropriate to defer to the Secretary’s reasonable 

interpretation of an “accident” and affirmed the Judge’s finding that a roof fall was an accident. 

Id. at 513-14 (citing Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003)). 

My colleagues ignore the Eight Circuit’s analysis in their majority opinion, including our 

own precedents the Court relied upon to conclude that section 3(k) should be construed 

expansively and in deference to the Secretary’s reasonable interpretation. Moreover, my 

colleagues ignore that the plain language of section 3(k) provides that an “accident” includes an 

“injury to . . . any person.” Misconstruing section 3(k), the majority fabricates a requirement 

that for an “injury to . . . any person” to constitute an “accident” the Secretary must also provide 

proof as to how the injury occurred. Slip op. at 9 (“the predicate for an accident must be an 

incident or occurrence, or condition in a mine”). Because this interpretation is inconsistent with 

 

5

 We have held that an accident is “a necessary precondition to the issuance of a section 

103(k) order.” Aluminum Co. of America, 15 FMSHRC 1821, 1824 (Sep. 1993) (“Alcoa”). 

Thus, an MSHA agent may only issue a section 103(k) order where the decision to do so is 

rationally connected to facts available to him or her indicating an “accident” under section 3(k) 

has occurred. My colleagues claim that Alcoa also establishes that an “accident” must have a 

predicate “incident, occurrence or condition in a mine.” Slip op. at 9. It does not. Alcoa

involved a section 103(k) order issued after an MSHA inspector observed evidence of mercury 

contamination at a plant. The record contained no evidence of any resulting “injury” to any 

miner. Accordingly, the Judge found that the Secretary failed to demonstrate the occurrence of 

an “accident.” The Commission affirmed the Judge, stating that “[o]ur conclusion in this case is 

based solely on the record developed before the judge” and that it did “not disagree with the 

Secretary’s broad interpretation of section 103(k) of the Act.” 15 FMSHRC at 1828. 

42 FMSHRC Page 518
the plain language of the Mine Act and produces absurd results, it is unlikely to be easily applied 

in future enforcement proceedings.6

I would affirm the Judge’s finding of fact that an accident occurred. Substantial evidence 

supports a finding that Mullins suffered an injury, subsequently diagnosed by a doctor as carbon 

monoxide poisoning. Though reasonable minds may differ as to whether the balance of medical 

and other evidence developed at hearing supports a conclusion that Mullins suffered an injury, 

the Judge’s conclusion is supported by substantial evidence. And I have no hesitation deferring 

to an interpretation of the term “injury” in section 103(k) as covering a doctor’s diagnosis of 

carbon monoxide poisoning following the onset of physical symptoms that first manifested in 

close proximity to a potential source of carbon monoxide and prompted his emergency 

evacuation. 

Nothing in the majority opinion should discourage MSHA inspectors from readily issuing 

control orders under section 103(k) upon reaching a reasonable conclusion that an accident has 

occurred when a miner has suffered an injury, even if it manifests only as an illness of 

indeterminate etiology. Though the majority opines that the inspector did not have a statutory 

basis for issuing the section 103(k) order, it must be emphasized that the majority agrees that the 

issuance of the control order in this case was not an abuse of the inspector’s discretion. In 

reality, it was the only reasonable course of action. 

 

6

 The majority’s interpretation is not only inconsistent with the plain text of the statute 

and our precedents, it would lead to absurd results; an injury or death that resulted from an 

unknown origin would not qualify as an “accident” and the Secretary would lack the authority 

under section 103(k) to remove the remaining miners from the potential danger. 

In addition, the majority’s requirement that the Secretary demonstrate the cause of the 

injury in order to validly issue a section 103(k) order would narrow the broad discretion 

Congress intended to provide MSHA to investigate injuries in mines and protect the life and 

safety of miners. See slip op. at 9-10 n.9; S. Rep. No. 95-181, at 29 (1977), reprinted in Senate 

Subcomm. on Labor, Comm. On Human Res., Legislative History of the Federal Mine Safety 

and Health Act of 1977, at 617 (1978) (“The unpredictability of accidents in mines and 

uncertainty as to the circumstances surrounding them requires that the Secretary . . . be permitted 

to exercise broad discretion in order to protect the life or to insure the safety of any person.”). 

42 FMSHRC Page 519
Substantial evidence supports the Judge’s finding that an “accident” occurred in this case. 

Were that not so, and the order not already terminated (rendering any further contest moot), the 

majority is correct that it would at that point need to be vacated. But that is neither the posture 

nor the factual record before us, and because I find that the control order was validly issued and 

modified, I would affirm. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 520
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

August 24, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket Nos. CENT 2015-0318-RM 

CENT 2015-0319-RM 

v. CENT 2015-0441-M 

CENT 2016-0055-M 

THE DOE RUN COMPANY 

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen and Traynor, Commissioners 

DECISION 

BY: Rajkovich, Chairman; Young and Althen, Commissioners 

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”). At issue is whether the Administrative Law 

Judge erred in affirming two citations issued by the Department of Labor’s Mine Safety and 

Health Administration (“MSHA”) to The Doe Run Company (“Doe Run”) at its Fletcher Mine, 

an underground lead, copper, and zinc mine in Missouri. 

Both citations arise from the fatality of a scaler operator, John Hoodenpyle. One citation 

alleges that Doe Run failed to design and install an adequate support system to control the 

ground in an area where miners worked or traveled in performing their assigned tasks, in 

violation of 30 C.F.R. § 57.3360.1

 The other citation alleges that Hoodenpyle was operating a 

scaling machine from a location that exposed him to falling material, causing the fatality in 

violation of 30 C.F.R. § 57.3201.2 Both violations were designated as significant and substantial

1

 Section 57.3360 provides in pertinent part: 

Ground support shall be used where ground conditions, or mining 

experience in similar ground conditions in the mine, indicate that it 

is necessary. When ground support is necessary, the support system 

shall be designed, installed, and maintained to control the ground in 

places where persons work or travel in performing their assigned 

tasks. 

30 C.F.R. § 57.3360. 

2

 Section 57.3201 states that “[s]caling shall be performed from a location which will not 

expose persons to injury from falling material, or other protection from falling material shall be 

provided.” 30 C.F.R. § 57.3201. 

42 FMSHRC Page 521
(“S&S”).3

 The ground support violation was alleged to be the result of high negligence and the 

scaling violation designated as the result of moderate negligence. 

In affirming both citations,4 the Judge concluded that the fatal roof fall5 established a 

violation of both standards. 40 FMSHRC 1165, 1205-10 (July 2018) (ALJ). The Judge also 

vacated the S&S designations and reduced both negligence designations to “low.” 

Doe Run and the Secretary of Labor each filed a petition seeking discretionary review of 

the Judge’s decision, both of which the Commission granted. As set forth below, we conclude 

that the Judge erroneously failed to apply the “reasonably prudent person” test to the alleged 

violations of the broadly-worded standards cited by the Secretary. Further, the cited standards 

did not provide the operator with fair notice of the obligations the Secretary seeks to impose in 

this enforcement action. Accordingly, we reverse the Judge’s findings of violation and vacate 

the citations. 

 

I. 

Factual and Procedural Background 

A. Factual Background 

Doe Run is a large mine operator in Missouri with six underground mines in what is 

geologically known as the new Viburnum Trend (“The Trend”). The Trend is a 32.5 mile-long 

lead, copper, zinc and ore deposit. The host rock in the Trend, including the Fletcher mine,6 

is dolomitic limestone, or “dolomite,” an altered limestone that is very high in strength and 

3

 The S&S terminology is taken from section 104(d)(l) of the Act, which distinguishes as 

more serious any violation that “could significantly and substantially contribute to the cause and 

effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(l). 

4

 The Judge also vacated a third citation, Citation No. 8680902, which had alleged that 

the operator had failed to conduct required workplace examination training, in violation of 30 

C.F.R. § 48.7(a). 40 FMSHRC 1165, 1214-16 (July 2018) (ALJ). The Judge vacated the 

citation on the basis that the Secretary had unduly prejudiced Doe Run by modifying the citation 

in an untimely manner. Id. The Secretary does not seek review of this ruling. 

5

 This decision uses the terms “roof” and “back” interchangeably to refer to the roof of 

the mine. Similarly, the decision uses the terms “roof fall” and “ground fall” interchangeably to 

refer to roof falls. 

6

 The Fletcher Mine is designed in a modified room and pillar format, meaning that 

pillars are left to support the roof as working headings are advanced. Mine drifts, or tunnels, are 

typically 28 to 32 feet wide while the pillar widths average between 30 and 32 feet. The roof 

height generally ranges from 16 to 120 feet. Fletcher’s typical mine cycle consists of (1) face 

drilling of holes; (2) hole charging and blasting; (3) post-blast muck and rock loading and 

haulage; (4) scaling (both mechanical and high boom hand scaling); and (5) roof bolting. 

42 FMSHRC Page 522
stability. Consequently, the ground conditions at Fletcher and throughout the Trend were 

described by witnesses from both sides as generally “stable” (Tr. 217-18), and “competent,” 

with no significant issues in the stability of the host rock. Tr. 424-25. 

Despite these general conditions, a fatal roof fall occurred on January 21, 2015. 

About 175 tons of rock – a section 55 feet long by 20 feet wide by 6 feet deep – collapsed onto a 

mechanical scaling machine that Hoodenpyle was operating.7

 Tr. 73, 647. He was inside the 

scaler’s reinforced cab about 60 feet from the face. Tr. 206-07. The roof fall crushed and killed 

him. The cab was under the bolted area when the roof fell. Tr. 311. 

Approximately 75% of the fall area was unbolted, and 25% was bolted with six-foot Split 

Set friction stabilizer bolts. Tr. 114, 195, 252. The scaler had a reinforced cab with a falling 

object protection system (“FOPS”). In addition to the reinforced cab, the scaler also had a 

rollover protection system (“ROPS”). During an MSHA inspection the day before the accident, 

both the scaler and the ROPS/FOPS operator’s compartment were found to be in good 

operational condition with no damage. 

Before the accident, another miner working in the area, Thomas Welch, heard 

Hoodenpyle start and begin to use the scaler around 10:00 pm. Tr. 513; S. Ex. 8 at 3. 

Welch recalled seeing the roof bolts in that area and testified that “everything looked fine.” 

Tr. 519. Hoodenpyle scaled for about 15 minutes before Welch heard the loud sound of a roof 

collapse. “It sound[ed] like a lot of rock.” Tr. 513-14. He could no longer hear the scaler after 

the collapse. 

Vern Roark, a roof bolter with 18 years of roof bolting experience, testified that on 

January 5, 2015, he had installed Split Set bolts in the area of the accident. He had examined the 

area on arrival and said everything “looked perfectly fine.” Tr. 466. Roark testified that 

“[t]he back was fine. There was no loose on it. It was in good color, solid, no voids in it.” 

Tr. 467. Roark also drilled a hole and sounded the back once he set his bolting machine up. He 

testified that the back was solid with no “drumminess” indicating a hollow area or void above the 

roof. Tr. 467. 

7

 Blasting often creates the need for scaling the unstable or loose material from the roof 

and sidewalls, which may be done by hand or by the use of specialized equipment such as a 

mechanical scaler. Tr. 429-30. This machine was a Getman S330 Mechanical Scaler with a roof 

scaling coverage range of 9.8 feet to 29.5 feet and a rib scaling coverage ranging up to 29.5 feet. 

Sec. Ex. 8, at 6 (MSHA’s accident investigation report). The single extension boom allowed for 

an advancement of over 13.1 feet from a single setup, allowing the operator to stay in a 

reinforced cab while extending the reach. The scaler with the boom was approximately 40 feet 

long and 8 feet high. Id. The scaler’s operator cab was located at the extreme rear of the 

machine and was designed to keep the operator at the farthest point away from the scaling work, 

as the material is removed. Tr. 434-35. 

42 FMSHRC Page 523
MSHA Inspector Jeremy Kennedy8

 had conducted an inspection of the mine about eight 

hours before the January 21 accident. According to Inspector Kennedy, the active faces and 

active roadway in the area had all been free of adverse conditions. Kennedy performed a visual 

inspection of the back and ribs and walked up to the face between pillars 7517 and 7561, the area 

of the eventual fall. He testified that he had not noticed anything unusual on the face and had not 

observed any “change” that would have indicated the existence of adverse ground conditions. 

Tr. 105. The pillars had appeared to be adequately sized, with nothing out of the ordinary, and 

the widths of the drifts and crosscuts had been normal. In addition, regarding the entire area 

inspected, Kennedy had written “no loose noted” and “ok” in his General Field Notes. Tr. 101; 

DR Ex. AA at 3. 

Kennedy had not observed “anything that was not typical” when he walked directly under 

the back that would fall later that evening. Tr. 57, 102. He testified that the back had looked 

smooth and “didn’t seem to have any unusual features to it.” Tr. 59-60, 102. He further testified 

that he had not recalled seeing any churned or disrupted rock in the area and had not noticed any 

loose ground. He had also inspected the ground support in the area and testified that everything 

had appeared accurate. He had inspected the last two rows of bolts between pillars 7508 and 

7516 (the bolts that would later fall) and they appeared adequately installed and flush to the 

back. Kennedy also had not noticed any abnormal noises such as popping or cracking. 

In sum, he observed nothing abnormal and nothing that would cause him concern about 

hazardous ground conditions. 

MSHA Inspector Michael Van Dorn led the agency’s investigation into the accident, 

joined by inspector Kennedy, geologist James Vadnal, and engineer Gregory Rumbaugh from 

MSHA Technical Support. On June 10, 2015, MSHA issued its accident investigation report. 

The report did not identify the precise geological cause of the roof fall, nor did any of the 

witnesses do so definitively at the hearing. The report concluded that Doe Run should have 

drilled test holes before drilling holes for blasting to identify hazardous roof conditions and that 

there should have been a more effective way for miners to communicate hazards to management. 

S. Ex. 8 at 6-7. The report found that the roof fall occurred because the roof was not adequately 

supported, and that resin bolts should have been used. Id. In addition, the report concluded that 

the resin bolts should have been installed no more than 30 feet back from the face. S. Ex. 8 at 6. 

On March 11, 2015, Van Dorn issued both citations. S. Ex. 1; S. Ex. 2. 

At the time of the accident, Doe Run was complying with its internal ground control 

policy. The policy contained several requirements with respect to scaling, bolting and test holes. 

It required, among other things, workplace examinations, scaling to begin no less than 60 feet 

back from the face, and a 5x5 standard roof bolt pattern for intersections. The policy also 

required one test hole per completed tunnel intersection. Tr. 429, 446, 449-50; DR Ex. F. The 

area where the January 21, 2015 roof fall occurred was not a completed intersection. There had 

been no unplanned reportable roof falls at Fletcher between the establishment of the revised 

8

 Inspector Kennedy worked at Doe Run for eight and a half years prior to going to work 

for MSHA in 2009. He had previously worked underground at Doe Run’s Brushy Creek, 

Sweetwater, and Fletcher mines, the last of which where he spent four years as a surveyor. 

As an MSHA inspector, he had inspected Fletcher at least eight times. 

42 FMSHRC Page 524
ground control policy in 19989

 and the 2015 roof fall. According to the recollection of the 

mine’s operations manager, Randall Hanning, MSHA repeatedly had the opportunity to review 

Doe Run’s ground control policy and had never raised any objections to it before the accident 

occurred. 

B. The Judge’s Decision 

The Judge affirmed the violations of sections 57.3201 and 57.3360, holding that “where 

there is an accidental roof fall causing death . . . the fact of the fatal accident itself, by reason of 

strict liability, demonstrates a per se violation of the safety standard.” 40 FMSHRC at 1209 

(emphasis omitted). In concluding that the facts of the case here constituted per se violations of 

both those metal-nonmetal standards as he interpreted them, the Judge relied exclusively on the 

Commission’s interpretation of the general roof control standard applicable to underground coal

mines, 30 C.F.R. § 75.202. Id. at 1207-09 (citing Jim Walter Res., Inc., 37 FMSHRC 493 (Mar. 

2015) (“JWR”)). 

In affirmatively holding that such an interpretative approach should be extended to the 

non-nonmetal roof control standards at issue here, the Judge “intentionally decline[d] to address” 

arguments made by both parties that the standards at issue instead be interpreted, and the 

violations be determined, pursuant to the application of the Commission’s “reasonably prudent 

person test.” Id. at 1209. The Judge conceded that “[s]uffice it to say that, given the plethora of 

questions raised and unresolved, a prudent person test would have made the Secretary’s case as 

to the fact of violation much more problematic.” Id. 

The Judge went on to delete the S&S designations associated with both citations, finding 

that the Secretary failed to provide “compelling indicia surrounding the instant violations that 

would have suggested the reasonable likelihood of” a roof fall on Hoodenpyle while he scaled. 

Id. at 1210. With specific reference to the S&S findings, the Judge rejected the Secretary’s 

evidence of disrupted rock and found that the geologic features in the area would not have 

indicated a reasonable likelihood of a roof fall. Id. at 1211. The Judge found that the scaler’s 

position 60 feet from the face, its position under bolted roof, and its reinforced cab did not 

“contribute[] to the reasonable likelihood of an injurious roof fall onto Hoodenpyle.” Id. at 1212. 

The Judge also rejected the Secretary’s contention that Doe Run’s use of Split Set bolts, 

rather than resin bolts, made a roof fall more likely. Id. at 1212-13. He noted that the Secretary 

presented hearsay evidence of prior roof falls but appeared to reject that evidence. Id. at 1213-

14. The Judge opined that “the etiological mystery at the heart of this accident,” i.e., the fact that 

no one could definitively identify the precise geological cause of the roof fall, was relevant to the 

S&S analysis. Id. at 1214. 

9

 The policy was revised in 1998 in response to the fatal roof fall at a separate Doe Run 

mine (referred to in the transcripts as the “Casteel Mine”). Tr. 611, 633-34. There were no 

section 57.3360 violations found in Fletcher Mine’s ten-year citation history. Tr. 528-29; 

see generally DR Ex. O. There was one citation for a violation of section 57.3201, six years 

prior, in 2009. Tr. 529; DR Ex. O at 29. 

42 FMSHRC Page 525
Finally, in one sentence, without explanation (other than in a very brief footnote that only 

addressed the scaling standard citation), the Judge reduced the negligence associated with both 

citations to “low.” Id. at 1212 n.72.

II. 

Disposition 

A. Summary of Relevant Law

In contests of citations and orders under the Mine Act, the Secretary bears the burden of 

proving each element of the Mine Act standard allegedly violated. See, e.g., Stillwater Mining 

Co. v. FMSHRC, 142 F.3d 1179, 1184 (9th Cir. 1998); Miller Mining Co. v. FMSHRC, 713 F.2d 

487, 490 (9th Cir. 1983); Sims Crane, 41 FMSHRC 393, 396 (July 2019); Asarco, Inc., 14 

FMSHRC 941, 950 (June 1992); Allied Chemical Corp., 6 FMSHRC 1854, 1857-59 (Aug. 

1984). 

In some instances, standards are written in such a way that the basic facts may 

demonstrate that the conditions or practices prescribed or proscribed by a standard have been 

violated. Such instances, wherein the bare facts may demonstrate a violation, are often referred 

to as sufficient to constitute “per se” violations of the standard at issue. See, e.g., Cougar Coal 

Co., 25 FMSHRC 513, 520 (Sept. 2003) (holding that miner’s electric shock, 18-foot fall, and 

head injury “per se” met the requirement that an “accident” had occurred at the mine under the 

cited standards). In those instances of such narrowly written standards, the facts of the alleged 

violation, standing alone, prove the violation. The operator may be found “strictly liable” under 

the standard, given that the facts, standing alone, show a violative practice or condition clearly 

satisfying all the terms of the standard.10 

In contrast, there are many Mine Act health and safety standards that are “simple and 

brief[,] in order to be broadly adaptable to myriad circumstances.” Kerr-McGee Corp., 

3 FMSHRC 2496, 2497 (Nov. 1981); see also Alabama By-Products Corp., 4 FMSHRC 2128, 

2130 (Dec. 1982). In those instances, as with any law or regulation, the standard must “give the 

10 See, e.g., Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct. 1979) (finding that 

operator could not escape liability due to its lack of prior knowledge of the violative condition of 

the equipment where it met neither of two duties imposed upon it by equipment standard that did 

not require such knowledge); El Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-39 (Jan. 1981) 

(finding operator strictly liable, even absent knowledge of equipment defect, because “unless the 

standard itself so requires, an operator’s negligence has no bearing on the issue of whether a 

violation occurred”); Clintwood Elkhorn Mining Co., 35 FMSHRC 635, 370 (Feb. 2013) 

(upholding strict liability under the standard because the Secretary met his burden of establishing 

a violation of section 77.1607(b) merely by demonstrating that the equipment operator failed to 

maintain full control of equipment while it was in motion, and “[n]othing in the language of the 

standard requires the Secretary to prove a causal or contributing factor for the loss of control”); 

Wake Stone Corp., 36 FMSHRC 825, 826 (Apr. 2014) (imposing strict liability because a defect 

in equipment established a violation of the terms of the standard). 

42 FMSHRC Page 526
person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he 

may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); see also Phelps 

Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193 (9th Cir. 1982) (refusing to apply a regulation 

that “inadequately expresses an intention to reach the activities to which MSHA applied it”). 

Consequently, a Mine Act standard must provide reasonable notice of what it requires or 

proscribes. U.S. Steel Corp., 5 FMSHRC 3, 4 (Jan. 1983); see also Amax Chem. Corp., 8 

FMSHRC 1146, 1149 (Aug. 1986) (rejecting finding a per se violation of a ground control 

standard in the metal-nonmetal context and instead holding that “all relevant factors and 

circumstances must be taken into account.”). 

As a result, in interpreting and applying broadly worded mine safety and health standards 

that pertain to a host of possible conditions and practices, the Commission, with the widespread 

approval of the courts of appeals,11 has applied the “reasonably prudent person test” to determine 

whether a violation has occurred. In other words, the inquiry is whether the standard prescribed 

the obligation with sufficient specificity to provide an operator with adequate notice of the 

requirements for compliance under the facts of the case. Then, the analysis turns on whether the 

facts demonstrate noncompliance with the standard. See, e.g., Alabama By-Products, 4 

FMSHRC at 2129-30; Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990) (requiring that 

the Secretary establish that “a reasonably prudent person familiar with the mining industry and 

the protective purposes of the standard would have recognized the specific prohibition or 

requirement of the standard”); U.S. Steel, 5 FMSHRC at 5 (stating that in order to prove a 

violation of a broadly-worded standard regulating mine safety, the Secretary must demonstrate 

that the allegedly violative condition “do[es] not measure up to the kind that a reasonably 

prudent person would provide under the circumstances. This evidence could include accepted 

safety standards in the field of road construction . . . , considerations unique to the mining 

industry, and the circumstances at the operator’s mine.”). Consequently, the standard must 

describe the conditions or practices required or forbidden with sufficient specificity to provide 

the operator with fair notice of the obligation. When a standard uses broad language, the 

operator must act as a reasonably prudent person in meeting the obligation. If the operator acted 

as a reasonably prudent operator, then no violation occurs and there is no liability. 

 

11 See, e.g., Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362 (D.C. Cir. 

1997) (“[R]egulations will be found to satisfy due process so long as they are sufficiently 

specific that a reasonably prudent person, familiar with the conditions the regulations are meant 

to address and the objectives the regulations are meant to achieve, would have fair warning of 

what the regulations require.”); Walker Stone Co. v. Sec’y of Labor, 156 F.3d 1076, 1083 (10th 

Cir. 1998) (quoting Freeman United, 108 F.3d at 362); Stillwater Mining Co. v. FMSHRC, 142 

F.3d 1179, 1182 (9th Cir. 1998). Our dissenting colleague, Commissioner Traynor (slip op. at 

40-41 n.12) is thus mistaken in relying on a 2011 decision from the D.C. District Court to argue 

that under the Mine Act the reasonably prudent person test is only relevant with respect to the 

imposition of penalties, and not the initial question of whether a violation occurred. See Black 

Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 558 (D.C. Cir. 2012) (“An accumulation exists if a 

reasonably prudent person, familiar with the mining industry and the protective purpose of the 

standard, would have recognized the hazardous condition that the regulation seeks to prevent.”) 

(citation omitted). 

42 FMSHRC Page 527
B. The Judge Erred in Not Applying the Reasonably Prudent Person Test. 

 

 We must reverse the Judge’s findings of violations here because he committed basic legal 

errors when analyzing the issues presented by the two citations. The Judge made little attempt to 

evaluate the ample evidence proffered to determine Doe Run’s obligations under the cited 

standards and whether Doe Run had failed to meet those obligations – the primary judicial 

decisional rubric in any administrative adjudication. Tellingly, the Secretary here does not 

support affirmance based on the Judge’s analysis. 

 

 1. Mine Act Strict Liability Cannot Be Used as the Sole Justification to Find a 

Per Se Violation of a Mine Act Standard.

We begin by addressing the Judge’s view, offered sua sponte, that strict liability under 

the Mine Act frames the initial question of violations here. See 40 FMSHRC at 1205 (“Given 

that the Mine Act is a strict liability statute and . . . that a miner was killed due to the fall of roof 

material . . . were there per se violations . . . ?”). The Secretary’s post-hearing brief mentioned 

strict liability only once and then only in a pro forma opening sentence of the argument. 

Thereafter, he sought to sustain the alleged violations using only the “reasonably prudent person” 

standard—the correct standard. See S. Post Hearing Br. at 20, 24-28. In fact, the Judge 

explicitly recognized that both parties argued the merits under the reasonably prudent person test. 

40 FMSHRC at 1205, 1207. He eventually concluded that strict liability dictated that “per se” 

violations of the standards at issue here had been established by the fatality suffered. Id. at 1209-

10.12

 Such an approach was plain analytical error. Every determination of whether a Mine Act 

standard was violated begins with addressing the specific terms of the standard in question. 

See, e.g., Peabody Twentymile Mining, LLC, 931 F.3d 992, 996 (10th Cir. 2019). Here though, 

the Judge’s discussion of the terms of the standards was only in passing, and even then was 

either non-existent or perfunctory. 

 

 In finding that a per se violation of 30 C.F.R. § 57.3360 occurred, the Judge stated that 

the standard “provides in pertinent part that the ground ‘support system be designed, installed, 

and maintained to control ground in places where people work.’” 40 FMSHRC at 1209 

(emphasis added). In so doing, the Judge failed to set forth the relevant terms of section 57.3360 

in their full context. The relevant language of the standard actually states: 

Ground support shall be used where ground conditions, or mining 

experience in similar ground conditions in the mine, indicate that it 

is necessary. When ground support is necessary, the support system 

shall be designed, installed, and maintained to control the ground in 

12 While the wording of his opinion suggests that the Judge might have intended his per 

se analysis to be confined to fatalities caused by roof falls, his failure to consider the text of the 

regulations does not support consideration for such a limitation.

42 FMSHRC Page 528
places where persons work or travel in performing their assigned 

tasks. 

30 C.F.R. § 57.3360. In purporting to interpret and apply the primary standard at issue in the 

case, the Judge completely ignored the terms of the entire first, and thus prefatory, sentence of 

the standard. That sentence requires the operator to apply ground support where the mining 

conditions or experience in similar ground conditions indicate that it is necessary. The cardinal 

principle of interpretation is to give effect, if possible, to every clause or word. See TRW Inc. v. 

Andrews, 534 U.S. 19, 31 (2001). Regulatory interpretation cannot be properly undertaken in 

any other manner. Again, it is the site-specific location that dictates the application of ground 

support. That is precisely what Doe Run did here – apply ground support in the location where it 

was necessary. 

 Regarding the other standard at issue here, 30 C.F.R. § 57.3201, in concluding that a per 

se violation of it had been established, the Judge similarly truncated it. The standard provides 

that “[s]caling shall be performed from a location which will not expose persons to injury from 

falling material, or other protection from falling material shall be provided.” 30 C.F.R. 

§ 57.3201 (emphasis added). The Judge, however, made no effort to interpret it, simply 

concluding that that “[t]he operative language . . . is that ‘scaling shall be performed from a 

location which will not expose persons to injury from falling material . . . .” 40 FMSHRC 

at 1209 (emphasis added). In short, he impermissibly read out of the standard its entire second 

prong. 

The Judge confused the strict liability the Mine Act imposes for violations with an 

entirely separate and different legal concept – common law strict liability for activities,

conditions or practices. See, e.g., Western Fuels-Utah, Inc. v. FMSHRC, 870 F.2d 711, 713 

(D.C. Cir. 1989) (discussing the difference between Mine Act strict liability for an undisputed 

violation of a coal mine roof control standard and strict liability under common law for the 

consequences of ultrahazardous activities); see also Indiana Harbor Belt R. Co. v. Am. 

Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990) (applying Illinois law to determine whether there 

was strict liability in tort for accident). In so doing, the Judge wholly disregarded the reasonably 

prudent person test that is fundamental to interpretation of Mine Act standards such as the ones 

at issue in this case. 

There is operator liability for a mining condition or practice only if the condition or 

practice is found to constitute a violation of the Mine Act or its standards. See Western FuelsUtah, 870 F.2d at 715; see also 30 U.S.C. §§ 814(a), 815(d). No “general duty clause” was 

included in the Mine Act, unlike with section 5(a)(1) of the Occupational Safety and Health Act 

of 1970. See 29 U.S.C. § 654(a)(1). Indeed, such a provision was specifically excluded from the 

Mine Act. See S. Rep. No. 95-461, at 38-39 (1977), reprinted in Senate Subcomm. on Labor, 

Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, 

at 1316-17 (1978) (“Mine Act Legis. Hist.”).13

13 Immediately after invoking Mine Act strict liability as a basis for determining whether 

the violations had been established, the Judge veered into a condemnatory denunciation of the 

 (continued...) 

42 FMSHRC Page 529
 The Judge’s error regarding the application of strict liability can be seen from his own 

direct quote to the legislative history of the Mine Act’s predecessor statute, the Federal Coal 

Mine Health and Safety Act of 1969 (“Coal Act”). See 40 FMSHRC at 1206 (“confirm[ing]” 

that under section 109 of the Coal Act, the precursor to section 110 of the Mine Act, there was 

“congressional intent that there should be ‘liability for violations of the standards against the 

operator without regard to fault’”) (quoting H.R. Rep. No. 91-761, at 71 (1969), reprinted in 

Senate Subcomm. on Labor, Comm. on Labor and Public Welfare, Part I Legislative History of 

the Federal Coal Mine Health and Safety Act of 1969, at 1515 (1975) (emphasis added). 

 Further, both of the cases cited by the Judge as support for his strict liability analysis 

(40 FMSHRC at 1205-06) were cases in which strict liability attached only after the entirely 

separate question of whether a violation had been established was resolved on an entirely 

independent basis. See Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1070-71(4th Cir. 1982) 

(rejecting contention that, due to an ongoing strike by some miners, operator should not be liable 

for mine conditions that constituted undisputed violations of MSHA standards); Spartan Mining 

Co., 30 FMSHRC 699, 706 (Aug. 2008) (“The Mine Act is a strict liability statute, such that an 

operator will be held liable if a violation of a mandatory standard occurs regardless of the level 

of fault.”) (emphasis added). 

 

13 (...continued) 

history of mining, excoriating “mine operators” and “lawyers, constabulary, and biased judicial 

donees.” 40 FMSHRC at 1206-07. This diatribe, which the Judge included in a context where 

he himself acknowledged its irrelevance, is completely out of line and detracts from the analysis. 

Commission Judges should bear in mind that they are officers of the Commission. While Judges 

are entitled to hold and express their own opinions privately, and while we do not suggest that 

Judges should refrain from appropriate citations to history in rendering their decisions, irrelevant 

dicta must be avoided. Ironically, the Judge, albeit by footnote, absolves the operator from 

acting “reprehensibly.” Id. at 1206 n.61. 

42 FMSHRC Page 530
Our colleagues, in their separate dissents in support of affirming the Judge’s erroneous 

analysis, similarly misapply Mine Act precedent. They cite Sewell, Western Fuels-Utah, 

Spartan, and a host of other court and Commission cases, which, while certainly speaking to an 

operator’s liability once a violation is found, are far less relevant to the initial task of interpreting 

a Mine Act standard to determine an operator’s obligations under it and whether a violation even 

occurred. See slip op. at 25-27; 34, 36, 44-45 n.20.14 Simply put, strict liability under the Mine 

Act is not a concept by which a mine operator can be found liable for an activity, condition or 

practice for which it did not have sufficient notice to otherwise properly find the condition or 

practice to constitute a violation of a health or safety standard. 

2. Neither Section 75.202(a) Nor JWR Govern the Interpretation of Sections 

57.3360 and 57.3321. 

The Judge’s misuse of the concept of strict liability was compounded by his improper 

focus, in interpreting the standards at issue here, on Commission case law involving a 

significantly different standard. The Judge looked to 30 C.F.R. § 75.202(a), and concluded that 

both of “the mandatory safety standards at issue are essentially identical” to it in their “plain 

meaning.” 40 FMSHRC at 1209 (emphasis added) (citing JWR, 37 FMSHRC at 495). They are 

not identical. Section 75.202(a), the general ground control standard for underground coal 

mines, simply reads “[t]he roof, face and ribs of areas where persons work or travel shall be 

supported or otherwise controlled to protect persons from hazards related to falls of the roof, face 

or ribs and coal or rock bursts.” 30 C.F.R. § 75.202(a). 

 It is, of course, correct that all three regulations are directed at preventing roof falls. 

But any similarity ends there. Comparing the terms of section 75.202(a) to the terms of the two 

standards at issue here, the language employed in the coal and metal-nonmetal standards is 

strikingly different in both instances. Properly reviewed, there is virtually no commonality 

14 See, e.g., Allied Prod. Co. v. FMSHRC, 666 F.2d 890, 893 (5th Cir. 1982) (after 

upholding that equipment conditions constituted violation, rejecting contention that evidence of 

significant employee misconduct should be taken into account in deciding whether to hold 

operator liable for the violation); Miller Mining Co., 713 F.2d at 491 (describing strict liability as 

holding an operator liable for “any failure to comply with a regulation under the Act [that] 

result[s] in a citation”) (emphasis added); Northwestern Mining Dep’t v. FMSHRC, 868 F.2d 

1195, 1197 (D.C. Cir. 1989) (upholding Commission’s finding that “once it was determined that 

. . . a miner employed by Asarco[] violated a mandatory safety standard in Asarco’s . . . [m]ine, 

Asarco, under the Mine Act, was subject to a civil penalty . . . and that the fact that Asarco’s 

supervising employees were not at fault was not a defense to the citation”) (emphases added); 

Ames Constr., Inc. v. FMSHRC, 676 F.3d 1109, 1110-12 (D.C. Cir. 2012) (rejecting productionoperator’s claim that strict liability for truck driver’s violation of the standard should not attach 

to it); Musser Eng’g, Inc., 32 FMSHRC 1257, 1272 (Oct. 2010) (finding that an operator is 

strictly liable “if a violation of a mandatory safety standard occurs”) (emphasis added); Nally & 

Hamilton Enter., 38 FMSHRC 1644, 1651 (July 2016) (“[W]hen a miner fails to wear a seat belt 

when operating a vehicle covered by [30 C.F.R. §] 77.1710(i), he violates th[at] standard. Then, 

as required by [the Mine Act], the operator is liable for the violation.”) (emphasis added). 

42 FMSHRC Page 531
between the short and direct obligation under section 75.202 and the broader language of the 

subject regulations. 

 In reaching his decision, the Judge did not discuss any of these distinctions in language 

between section 75.202(a) and the subject standards. As noted, he entirely omitted quoting the 

prefatory sentence in section 57.3360, which, as discussed below, is crucial to understanding the 

obligations the standard imposes upon operators. Commonality of any sort, including subject 

matter, does not relieve the Commission or the Judge from the duty to examine the actual words 

of the regulations. It is simply impossible to conclude that the terms of two or more standards 

are “essentially identical” without analyzing all of the terms of those standards. 

 The difference in language in the standards leads us to also reject the claim that 

Commission precedent, with respect to violations of section 75.202(a), controls interpretations of 

the standards at issue here, and thus the findings of violations in this case. This includes the 

Commission majority’s decision in the JWR roof fall fatality case, which largely focused on the 

particular language of that standard in reaching its conclusion. Of course, that language did not 

include anything remotely similar to the first sentence of section 57.3360 nor to any part of 

section 57.3321.15

The significant difference between the language of the specific coal standard that 

governed in JWR and the language of the metal-nonmetal regulations at issue here is not the only 

reason to reject JWR are as controlling in this case. There is also a substantial distinction 

between the regulation of roof control for coal mines and the regulation of ground control for 

metal-nonmetal mines. The coal regulations, as shown in subpart C in Part 75 devoted to roof 

 

 15 In JWR, the Secretary urged an interpretation of section 75.202(a) under which a 

fatality due to a roof fall in an underground coal mine would result in a finding of a per se 

violation of that standard. 37 FMSHRC at 494-95. The Commission majority instead, 

acknowledging strict liability under the Mine Act, chose to simply apply the specific terms of 

section 75.202(a) to the facts. It ultimately held that, as to “the issue of whether the operator 

failed to support the roof ‘to protect persons from hazards related to falls,’” a miner was found 

. . . lying fatally injured beneath a large roof fall. Accordingly, the 

only conclusion to be reached is that the roof was not supported to 

protect the miner from a roof fall. . . . [T]he Mine Act is a strict 

liability statute, and this fatality resulting from a fall of roof 

material where persons work or travel unquestionably 

demonstrates a violation of section 75.202(a). The roof fall . . . 

amply demonstrates that the roof was not supported in a manner to 

protect him from hazards related to falls. 

Id. at 496. The miner had entered the area despite a large roof fall having occurred nearby. Id. 

at 494. 

42 FMSHRC Page 532
control, include specific requirements for detailed roof control plans. See generally 30 C.F.R. 

Subpart C.16

 In contrast, the underground metal-nonmetal regulations impose no specific roof control 

parameters, and that is for good reason. See generally 30 C.F.R. Part 57. Metal-nonmetal 

operators deal with diverse conditions, such as varied rock types and material structures, and 

they have many different ways to handle those types of conditions. In short, these are sitespecific regulations. This inherent difference in the nature of metal-nonmetal mining conditions 

mandates that metal-nonmetal operators must have flexibility to deal with the conditions as they 

see fit, at the immediate site, on a case-by-case basis. 

Similar to the Judge, Commissioner Jordan interprets the standards at issue largely 

without addressing the exact terms of the standards and the differences between the regulatory 

contexts of coal and metal-nonmetal mines. Instead, she too relies on JWR (as does 

Commissioner Traynor), along with other cases in which, based on the application of the facts to 

the simple terms of different regulatory standards, violations of those standards were found. See

slip op. at 25-30, 39. Like JWR, their cited cases provide little to no guidance for how the more 

complex standards at issue here are to be interpreted and applied, and do not stand for the 

proposition that strict liability under the Mine Act can be substituted for determining whether a 

violation was established.17

In addition, Commissioner Jordan would go so far as to read the legislative history of the 

Mine Act as sufficient authority, by itself, for the Commission to rewrite by interpretation any 

metal-nonmetal standard so that it is functionally equivalent to a coal standard. See slip op. at 

27-28 (quoting S. Rep. No. 95-181, at 12-13 (1977), Mine Act Legis. Hist. at 600-01). We 

decline to do so. In a 16-month period, approximately ten years after the passage of the Mine 

Act, MSHA issued revised ground control regulations for both coal and metal-nonmetal contexts. 

Despite the legislative history’s belief in the “essential[ity] of a common regulatory program for 

all operators,” MSHA nevertheless adopted the significantly different ground control standards 

set forth above. Compare Safety Standards for Ground Conrol at Metal and Non-Metal Mines, 

16 This distinction flows from the language and structure of the Act itself. Coal mining 

roof and rib control requirements are addressed directly in section 302 of the statute, 30 U.S.C. § 

862, along with the rest of Title III that imposed interim safety standards on the coal mining 

industry. See 30 U.S.C. § 861, enacted Dec. 30, 1969, Pub. L. No. 91-173, § 301, 83 Stat. 765; 

amended Nov. 9, 1977, Pub. L. No. 95-164, § 203, 91 Stat 1317. By contrast, metal-nonmetal 

ground control is not explicitly in the Act. 

17 See Stillwater, 142 F.3d at 1183-84 (finding load of ore that operator permitted to flow 

in chute exceeded design capacity of bolts on chute gate shown by failure of gate, and thus 

operator violated general safety regulation prohibiting use of equipment beyond its design 

capacity); Clintwood Elkhorn, 35 FMSHRC at 370 (finding that truck leaving the road violated 

standard requiring full control of equipment while it is in motion); Nally & Hamilton, 36 

FMSHRC at 1648-51 (after interpreting key term “required” in context of standard imposing 

obligation that seat belt be worn, finding violation solely based on equipment operator’s failure 

to wear seat belt). 

42 FMSHRC Page 533
51 Fed. Reg. 36,192 (Oct. 8, 1986); Safety Standards for Roof, Face and Rib Support [in 

Underground Coal Mines], 53 Fed. Reg. 2343 (Jan. 27, 1988). It is not the role of the 

Commission, through case law, to attempt to satisfy legislative history while implying that the 

Secretary himself has clearly ignored that history in carrying out his standard-setting function 

under section 101 of the Mine Act, 30 U.S.C. § 811.18

3. The Reasonably Prudent Person Test Applies to the Standards Here. 

a. The Standards’ Broad Terms Require That the Commission’s 

Reasonably Prudent Person Test Be Applied Here. 

Turning to the terms of the standards that the Judge omitted, it is significant that section 

57.3360 begins by stating that “[g]round support shall be used where ground conditions, or 

mining experience in similar ground conditions in the mine, indicate that it is necessary.” 

30 C.F.R. § 57.3360 (emphases added). The terms “experience,” “similar,” “indicate,” and 

“necessary” are clearly indicative of a “judgment call” on when and what ground control is 

needed, based on all the relevant ground conditions in the mine. The actions required by section 

57.3360 – choice of ground support under the first sentence of the standard, and the resulting 

design, installation and maintenance of that support under the second sentence – thus rest upon 

the experience of the operator in the particular mining conditions to indicate appropriate ground 

control measures. Because the regulation explicitly directs the mine operator to base its 

judgment upon experience in similar ground conditions and knowledge of the ground conditions, 

determining whether this standard was violated clearly negates a strict liability application and 

calls for application of the Commission’s reasonably prudent person test. See BHP Minerals 

Int’l Inc., 18 FMSHRC 1342, 1345 (Aug. 1996) (recognizing that factors bearing upon the 

application of the reasonably prudent person standard include accepted safety standards and 

circumstances at the operator’s mine).19

 Separately, even when we find the actions of the operator would violate a standard, 

orders have nonetheless been vacated when the reasonably prudent operator did not have fair 

notice of a requirement through the wording of the standard. We apply the “reasonably prudent 

person” test in deciding whether an operator had fair notice. See, e.g., Hecla Ltd., 38 FMSHRC 

2117, 2125 (Aug. 2016) (“[W]e hold that a reasonably prudent person familiar with the mining 

industry would not have known that the examination and testing requirement in section 57.3401 

might demand a geomechanical or engineering analysis. [Although] we consider the Secretary’s 

interpretation to be a permissible one . . . it would not be an obvious reading of the standard to a 

18 We further note that, in contrast, in Nally & Hamilton, the case cited by our colleague 

in support of her argument for a harmonious interpretation of similar MSHA safety standards, 

the standard at issue, 30 C.F.R. § 77.1710(i), was promulgated prior to the passage of the Mine 

Act. 

19 Contrary to Commissioner Traynor’s arguments (slip op. at 42 n.15, 44), our reliance 

on the terms of the standard in our analysis, such as the term “experience,” does not inject 

“negligence” concepts into this case. It is the key terms of the standard that dictate whether the 

reasonably prudent person test applies, and we cannot ignore such terms. 

42 FMSHRC Page 534
person familiar with the mining industry.”). The reason is simple – the constitutional principles 

of due process and fair notice apply prior to a finding of a violation that results in a civil penalty. 

 Here, for example, the operator could not have had “fair notice” of a supposed obligation 

to install the type and extent of roof support measures that could have prevented the magnitude 

of roof failure that occurred in this situation. The evidence demonstrates, unequivocally, that the 

operator’s prior years of mining experience in similar ground conditions in the same and other 

mines did not indicate that it was necessary. To the contrary, the experience indicated that it was 

not necessary. See Consol Buchanan Mining Co. v. Sec’y of Labor, 841 F.3d 642, 650 (4th Cir. 

2016) (agreeing with the Commission and other federal circuits that MSHA regulations 

permitting a reasonably prudent person standard provides sufficient notice to satisfy due process 

and supports potential sanctions).20

 This case illustrates the importance of the language of section 57.3360. Here, the 

operator had long operated six mines in the Trend, the host rock being dolomitic limestone, 

which is very high in strength and stability. There was no evidence of any prior roof fall even 

vaguely approaching the calamitous nature of the fall that occurred in this case.21 MSHA 

inspected the area just hours before the fall and did not see or note any ground condition giving 

rise to fear of any roof fall, let alone one of catastrophic proportions. Although there was post 

hoc speculation about breakage along the ribs by one MSHA witness based upon post-accident 

views, the evidence does not establish the existence of any ground conditions that could have 

foreshadowed the massive fall that occurred. 

 Under Commissioner Traynor’s interpretation of section 57.3360, an operator is strictly 

liable for any failure of ground in a part of a mine regardless of where the operator has decided 

that some measure of ground control is necessary, on the rationale that such failure means the 

operator has violated one or more of the design, installation, or maintenance terms of the second 

sentence. Thus, in any metal-nonmetal mine where an operator has recognized the necessity for 

ground control in a specific location, our dissenting colleagues would, in essence, read section 

57.3360 identically to how section 75.202(a) applies in coal mines. Aside from being an 

erroneous comparison, such an approach would obviously ignore the many cases requiring fair 

notice of the obligations of a standard and a level of clairvoyance far removed from the terms of 

the standard. 

 In light of the terms of the first sentence of the standard and as the standard has been 

interpreted by the Secretary, we do not agree that an operator’s liability under the second 

20 Commissioner Traynor, again, misses the point by his comment that our finding here 

is “directly contradicted by counsel for Doe Run.” Slip op. at 37, n.6. We agree with counsel for 

Doe Run that “ground support is necessary.” It is a matter of where that ground support is used 

as necessary. 

21 There was limited testimony that some unidentified person may have heard of a roof 

fall of undescribed dimensions in some unidentified part of the mine; however, we find it 

implausible that there could have been a previous fall, in this mine, approaching this magnitude 

with no witness able to testify to it in any detail. 

42 FMSHRC Page 535
sentence of section 57.3360 can or should be expanded by such an interpretative approach and 

default to strict liability. It would, in essence, render irrelevant the operator’s compliance with 

the obligations the first sentence of the standard imposes. 

 The other regulation at issue, section 57.3201, is a classically general standard. As with 

section 57.3360, the standard’s language is broadly-worded, stating that “[s]caling shall be 

performed from a location which will not expose persons to injury from falling material or other

protection from falling material shall be provided.” 30 C.F.R. § 57.3201 (emphases added). 

The key words here are “location” and the phrase “other protection.” It is important that the 

standard permits alternative means of compliance, i.e., the operator may ensure scaling is done 

from a location that does not expose miners to hazards or it may provide protection to them. 

 Additionally, as with section 75.3360 again, and reading it in pari materia with that more 

general control standard – as we should, because they both appear in Subpart B of MSHA’s Part 

57 regulations addressing ground control – section 57.3201 does not require operators to foresee 

and provide protection against a wholly unexpected and unprecedented collapse of an enormous 

section of stable, hardened limestone. There are no details in the standard as to where that 

“location” ought to be, and there are no details as to what “other protection” ought to be applied 

here. Thus, as with section 57.3360, judgment calls are required to be made by the operator, 

based on its experience with ground conditions in the mine, with respect to both the “location” 

from which scaling is performed and the type of “protection . . . provided.” 

 That is understandable because section 57.3201 applies to a wide variety of 

circumstances. Metal-nonmetal mines involve diverse ground conditions in a variety of unique 

mining environments that call for numerous scaling procedures. MSHA openly acknowledged in 

its final rule promulgating section 57.3201 that, in metal-nonmetal mines, the “[c]ontrol of 

ground is made uniquely difficult because of the variety of conditions encountered and the 

changing nature of the forces affecting ground stability at any given operation.” 51 Fed. Reg. 

at 36,192. 

 This is a different context than underground coal mine operations, where mine plans and 

roof conditions, albeit varying, are often very similar within a given type of underground mine, 

and have been subject to more stringent and uniform regulation from the Mine Act’s inception. 

Section 57.3201, on the other hand, must account for the broad variety of materials extracted, 

the diversity of mining types and geographic areas represented, and the multiple methods of 

scaling possible, depending on the type of mine and environment.22 Various conditions in a 

mine affect scaling and the type of scaling utilized.23 Each one of these diverse factors impacts 

what equates to a safe “location” for performing scaling.24

22 These include, but are not limited to, ground hand-scaling, rock pile scaling, 

high-boom hand-scaling, mechanical scaling, front-end loader scaling, bolter scaling, and jumbo 

drill scaling. 

23 These include, but are not limited to, host rock stability, mineralization, layered back, 

thick shale seams, brecciated ground, sandstone, existence or non-existence of ground support, 

water penetration, active faults, and mud seams. 

42 FMSHRC Page 536
 As such, the standard, like section 57.3360, requires the application of the “reasonably 

prudent person” test. If the operator, informed of the requirements of those regulations with 

ascertainable certainty, failed to act with respect to either as a reasonably prudent person, then a 

violation occurred. On the other hand, if the operator acted with reasonable prudence, there can 

be no violation. 

 Our dissenting colleague, Commissioner Traynor, would affirm the Judge’s findings of 

violations here, citing unassailable “plain meanings” to the standards at issue, and that thus the 

reasonably prudent person test cannot be used. Slip op. at 36-44. However, he himself 

disregards the plain language of section 57.3201, which provides that, as an alternative to scaling 

from a location which will not expose persons to injury from falling material, “other protection 

against falling material shall be provided.” 30 C.F.R. § 57.3201. Here, the operator used both – 

a belt-and-suspenders approach. It positioned the miner beneath supported roof, where even the 

inspector testified it would not have been a violation absent a roof fall, and used a specialized 

piece of equipment featuring a long boom to permit the miner to remain under protected roof 

while scaling from within a strong, reinforced cab. Clearly, therefore, the operator used other 

protection as required. The key point is that the standard requires the operator to use its 

experience and judgment in providing alternative fall protection that a reasonably prudent 

operator would provide under the mining conditions. 

b. Application of the Reasonably Prudent Person Test to the Two MetalNonmetal Ground Control Standards is Amply Supported by 

Established Commission Precedent. 

 Applying the reasonably prudent person test to determine whether the alleged violations 

of sections 57.3360 and 57.3201 occurred is supported by no less than four Commission cases. 

Nevertheless, the Judge rejected applying the test in favor of interpreting the standards solely in 

light of an interpretation of a coal mine ground control standard. See 40 FMSHRC at 1209. In 

so doing the Judge failed to follow Commission precedent in recognizing and according 

significance to the difference between regulations under Part 57 and Part 75, as noted earlier. 

We have consistently recognized this distinction when interpreting the metal-nonmetal standards. 

 In Asarco, Inc., 14 FMSHRC 941, 942-43, 952 (June 1992), all four metal-nonmetal 

ground control violations cited were in connection with a fatality resulting from a roof fall 

24 Again, our dissenting colleagues would read the standard in question as requiring 

much less in the way of evidence, and affirm the Judge’s analysis that the facts here establish a 

per se violation of section 57.3201. They would find the scaler’s location under the roof fall 

entirely dispositive on the question of whether the standard was violated, regardless of how 

objectively reasonable that location might be at the time given the operator’s ground control 

experience in the mine. Slip op. at 30-31, 43-47. Similarly, they would ignore that the operator 

provided “other protection” in the form of a reinforced cab thereby clearly complying with the 

obligations of the standard. As discussed infra, Commission precedent in interpreting 

predecessor and similar metal-nonmetal ground control standards does not support such an 

interpretation, neither with respect to section 57.3360 nor with regard to section 57.3201.

42 FMSHRC Page 537
which, similar to the case at bar, was considered to have been “unpredictable.” In determining 

whether the Secretary had established violations of both metal-nonmetal ground control 

standards at issue, the Commission employed the reasonably prudent person test. See id. at 947-

50 (reversing finding of violation of 30 C.F.R. § 57.3401), 952 (in reversing finding of violation 

of 30 C.F.R. § 57.3200, rejecting “[t]he Secretary[’s] premis[ing] her case on the assumption that 

the rock that fell had been loose and could have been detected by proper testing,” because “[a]s 

we have concluded, a reasonably prudent person familiar with the mining industry would not 

have recognized that” the testing measure employed did not fulfill the requirements of section 

57.3401). 

In Asarco, the Secretary, like the Judge and our dissenting colleagues in this case, relied 

on the fact of the accident to establish that the operator per se violated one of the standards in 

question: section 57.3200. 14 FMSHRC at 950-51; see also 30 C.F.R. § 57.3200 (providing in 

pertinent part that “[g]round conditions that create a hazard to persons shall be taken down or 

supported before other work or travel is permitted in the affected area.”) (emphasis added). The 

Commission expressly rejected that idea. Instead, we interpreted and applied the standard, cast 

in the foregoing broad, judgment-call terms, to conclude that “[t]he fact that there was a ground 

fall is not by itself sufficient to sustain a violation.” Asarco, 14 FMSHRC at 951 (emphasis 

added). 

Rather, the Commission held that the hazardous ground must be “detectable before,” not 

just “after” the accident, and determined that, through an application of the “reasonably prudent” 

miner test, that the operator’s pre-fall detection efforts were reasonable under the circumstances. 

Id. at 951-52. We further note that, in addition to the Commission in Asarco expressly rejecting 

the premise upon which the Judge here based his findings of violations, the similarity in the 

language used to circumscribe metal-nonmetal operators’ ground control obligations in sections 

57.3201, 57.3360 and section 57.3200 at issue in Asarco is much greater than the similarity in 

language between section 75.202(a) and sections 57.3201 and 57.3360 that the Judge found to 

“essentially identical.” See 40 FMSHRC at 1209. 

The Commission in Asarco viewed its interpretation of the metal-nonmetal ground 

control standard at issue to be compelled by its earlier decision in Amax. See Asarco, 14 

FMSHRC at 952-53 (citing Amax Chemical Company, 8 FMSHRC 1146, 1149 (August 1986). 

In Amax, the Commission had also explicitly rejected a similar attempt by the Secretary to 

establish a per se test for violations of 30 C.F.R. § 57.3-22 (1984), a predecessor standard to 30 

C.F.R. § 57.3401. Particularly emphasizing that the mine at issue was a “potash mine,” the 

Commission in Amax specifically noted that: 

 . . . [u]nlike the regulatory scheme that obtains with respect to 

underground coal mines, approved roof control plans are not 

required in underground metal-nonmetal mining operations. 

Rather, “[g]round support shall be used if the operating experience 

of the mine, or any particular area of the mine, indicates that it is 

required.” (30 C.F.R. § 57.3020 (1985) (formally numbered as 30 

C.F.R. § 57.3-20 (1984)). 

8 FMSHRC at 1149 (citing White Pine Copper Div., 5 FMSHRC 825, 835-37 (May 1983)). 

42 FMSHRC Page 538
Amax’s citation to White Pine is particularly significant. In White Pine, we concluded 

that the terms of 30 C.F.R. § 57.3-20, the predecessor to 30 C.F.R. § 57.3360, required the 

Commission to evaluate the current conditions as well as the operating experience of the mine. 

Similar to what is now section 57.3360, section 57.3-20 stated that “[g]round support shall be 

used if the operating experience of the mine . . . indicates that it is required.” 30 C.F.R. 

§ 57.3-20 (1982); 5 FMSHRC at 825 (emphasis added). 

 

We did so after finding that “experience” includes “practical wisdom” and “broadly 

encompasses all relevant facts tending to show the condition of the mine roof in question and 

whether, in light of the roof condition, roof support is necessary.” 5 FMSHRC at 836 & n.23. 

We ultimately held that the requisite determination under the standard 

takes into account the operating history of the mine, (i.e., its past 

mining practice) geological conditions, scientific test or monitoring 

data and any other relevant facts tending to show the condition of 

the mine roof in question and whether in light of those factors roof 

support is required in order to protect the miners from potential 

roof fall. 

Id. at 838. In other words, the Commission interpreted the standard according to the “reasonably 

prudent person” test.25

Lastly, the Commission’s decision in Canon Coal Co., 9 FMSHRC 667 (Apr. 1987), 

although it involved a former coal mine ground control standard, is instructive with regard to the 

circumstances in which the reasonably prudent person standard applies to ground control 

standards like the ones at issue here, particularly section 57.3360. Former 30 C.F. R. § 75.200, 

the predecessor to what is now 30 C.F. R. § 75.202(a), provided in pertinent part: 

 

Each operator shall undertake to carry out on a continuing basis a 

program to improve the roof control system of each coal mine and 

the means and measures to accomplish such system. The roof and 

ribs of all active underground roadways, travelways, and working 

 

25 Unlike Commissioner Traynor, we put no stock in the fact that, in some of the older 

cases, the Commission did not specifically state that it was applying the reasonably prudent 

person test. See slip op. at 41. The Commission had already started interpreting broad standards 

using such an approach before it first stated the specific “reasonably prudent person” 

terminology in Alabama By-Products, 4 FMSHRC 2128, 2129 (Dec. 1982). See, e.g., Lone Star 

Indus., Inc., 3 FMSHRC 2526, 2530 (Nov. 1981) (“[s]ection 56.9-41 is the kind of standard 

made simple and brief in order to be broadly adaptable to myriad circumstances. The relevant 

variables affecting safe position are numerous, may differ from plant to plant, and may change 

from day to day in any particular operation.”). 

42 FMSHRC Page 539
places shall be supported or otherwise controlled adequately to 

protect persons from falls of the roof or ribs. 

30 C.F. R. § 75.200 (1984); 9 FMSHRC at 667 n.1. Thus, a continually developing groundcontrol program was required on a mine-specific basis, analogous to the requirement of the first 

sentence of section 57.3360. In Canon Coal, a case in which a roof fall resulted in a fatality, the 

Commission, faced with an allegation that a violation of former section 75.200 had occurred, 

did not hesitate to apply the reasonably prudent person test, even in light of the language in the 

second sentence of the standard that it emphasized. See 9 FMSHRC at 667-68 & n.1. 

 Of course, as we have seen, former section 75.200’s successor standard, section 

75.202(a), no longer includes that first sentence. Accordingly, we view the Judge here as having 

erred when he treated the Commission majority’s finding in JWR with regard to the newer, 

different coal mine ground control standard as having overruled the Commission’s application of 

the reasonably prudent person test in Canon Coal (see 40 FMSHRC at 1207-09),26 as that was a 

case in which a ground control standard written in much broader terms was at issue. 

Based upon the foregoing established case law and principles, we hold that the 

“reasonably prudent person” test applies to the alleged violations of section 57.3360 and section 

57.3201 here. The Commission has consistently applied this test for nearly four decades. 

White Pine and Canon Coal establish beyond peradventure that section 57.3360 is to be 

interpreted and applied as a “reasonably prudent person standard.” Likewise, and in accord with 

our decisions interpreting ground control standards in the metal-nonmetal context, the 

determinations under section 57.3201 of whether the scaling “location” was proper or, in the 

alternative, that “protection” was “provided,” can only be made under the “reasonably prudent 

person” test. 

C. Application of the Reasonably Prudent Person Test 

1. The Record Compels the Conclusion that Ground Support at the Accident 

Location was Properly “Designed, Installed and Maintained” Based on the 

“Ground Conditions” Known to Doe Run Prior to the Ground Fall and its 

Mining Experience in “Similar Ground Conditions.”

With respect to the section 57.3360 violation, the Secretary urged that the Judge be given 

the opportunity to apply the reasonably prudent person test in the first instance after having 

originally rejected it (S. Br. at 24-26). We now examine the record to determine whether there is 

any need to do so, given the Secretary’s burden of proof on the question. With regard to that 

burden, we consider it significant that, in sua sponte rejecting the test in this case, the Judge 

concluded that “[s]uffice it to say that given the plethora of questions raised and unresolved, 

26 The Judge appears to have been strongly influenced by the claim in the concurrence in 

JWR that the majority opinion effectively overruled Canon Coal. See 40 FMSHRC at 1207 

(citing 37 FMSHRC at 498). We need only observe that Commissioners Nakamura and Althen, 

who comprised the majority in JWR, certainly knew how to overrule Canon Coal if they wished 

to do so, and chose not to overrule that case. See 37 FMSHRC at 496 n.7.

42 FMSHRC Page 540
a prudent person test would have made the Secretary’s case as to the fact of violation much more 

problematic.” 40 FMSHRC at 1209. 

The Secretary argued below and on appeal that the operator should have known from 

conditions evident before the accident that additional ground control measures were necessary. 

He asserts that the operator should have drilled test holes to determine if there were voids above 

the roof. He also asserts that the operator should have known of shaley conditions, and that these 

conditions required the use of resin bolts instead of the Split Set bolts. 

 In his decision, the Judge rejected those arguments in addressing the S&S issue (which he 

reached after finding a violation of section 57.3360). Substantial evidence supports the Judge’s 

conclusions on those issues. His conclusions, and the evidence upon which they rest, compel an 

overall finding of no violation. See Sims Crane, 41 FMSHRC at 399-400.

 As recognized in the Judge’s analysis deleting the S&S designations (40 FMSHRC at 

1165, 1210-1214), the record contains abundant evidence, including testimony from the 

Secretary’s own witnesses, establishing that nothing with respect to the ground conditions or 

ground support in the area of the accident put Doe Run on notice that any form of additional 

support was needed.27 

 Prior to January 21, 2015, the mine had never experienced any unplanned ground falls 

where Split Set roof bolts failed in ground conditions similar to those in the area of the accident. 

Likewise, Doe Run had used Split Set roof bolts for decades to support brecciated ground. 

Those bolts were effective without a history of failure. There is no evidence that the use of resin 

bolts instead of Split Set bolts would have made any difference. 

 Moreover, the opinion of every witness who worked at the location of the accident prior 

to the January 21, 2015 ground fall was that the ground conditions and ground support in the 

area, including the conditions in the fall cavity, were typical and good. This includes the 

Secretary’s own witness, Inspector Kennedy, who conducted an inspection of the mine eight 

hours before the roof fell.28 Kennedy’s testimony and the other evidence – all of which the 

Judge credited in his S&S analysis – demonstrate that there was nothing that should have put the 

27 Notwithstanding Commissioner Traynor’s argument to the contrary (slip op. at 37 

n.7), our discussion of the record evidence on the “judgment calls” and decisions made by Doe 

Run based on its experience and past practice does not convert our analysis of what a reasonably 

prudent miner would have “objectively” done into a “subjective” analysis. 

28 Kennedy testified that he did not notice anything unusual on the face and did not 

observe any “change” that would have indicated the existence of adverse ground conditions. 

Tr. 104-05. The pillars appeared to be sized adequately with nothing out of the ordinary. 

Likewise, the widths of the drifts and crosscuts were normal. In fact, Kennedy wrote “no loose 

noted” and “ok” in his General Field Notes with respect to the RC3PO stope. Tr. 101; 

DR Ex. AA, at 3. Kennedy had not noticed any abnormal noises such as popping or cracking. 

He testified that he had observed nothing abnormal that would cause him concern about 

hazardous ground conditions. 

42 FMSHRC Page 541
operator on notice that the ground support or ground conditions in the area were insufficient or 

hazardous. 

The Secretary’s evidence fails to detract from this conclusion. Despite Vadnal’s post-hoc 

testimony that he thought “shaley conditions” existed prior to the roof fall, the Judge found that 

Kennedy’s testimony contradicted Vadnal’s opinion and diminished its probative weight. 

The Judge also took into account that Vadnal had never visited the mine prior to the accident, 

and had not personally observed the area before the roof fell. Vadnal was merely assuming that 

the changes he had observed in the fall cavity area were observable prior to the accident. 

Furthermore, Van Dorn conceded that his reason for concluding that test holes had not 

been drilled was based on a single statement by one driller, Sam McCabe. However, McCabe 

had also made a conflicting statement saying that he had previously drilled a test hole. 

Tr. 386-89. Van Dorn failed to elicit any other statements that test holes had not been drilled. 

Moreover, despite the Secretary’s argument that the operator had created an unsafe work 

environment by using bonuses to reward productivity for roof bolters, the Judge found that the 

Secretary failed to establish that the bolters had performed their duties in an unduly speedy 

manner. 40 FMSHRC at 1213. Finally, the fact that there was no place on the mine’s work area 

inspection cards to record when test holes were drilled raises the inference that the operator 

could have drilled test holes without noting them. The Secretary has failed to prove otherwise or 

bring forth any other evidence to show that the operator was on notice of insufficient ground 

control. 

In summary, we conclude that, after applying the reasonably prudent person standard to 

the facts the Judge found, substantial evidence does not support a finding of a violation of 

section 57.3360. Accordingly, we vacate that citation. 

2. The Record Establishes That Under the Reasonably Prudent Person Test 

Doe Run Did Not Violate 30 C.F.R. § 57.3201. 

 

As shown in the Judge’s factual findings regarding whether this violation was S&S, the 

record contains abundant evidence regarding Hoodenpyle’s “location.” The scaler’s position 60 

feet from the face, under bolted roof, with a reinforced cab did not “contribute[] to the reasonable 

likelihood of an injurious roof fall onto Hoodenpyle.” Id. at 1212. Applying the “reasonably 

prudent person” test, we vacate the citation alleging that Hoodenpyle performed the scaling at an 

improper location without protection from falling material. 

 

The Judge found that routine practice had demonstrated that Hoodenpyle’s position in the 

cab was a safe location. He found that there was no prior indication of any imminent roof 

failure, that there was no prior indication of any unsafe location for this scaling process, and that 

there was no prior indication of any other locations the operator should have picked. Again, we 

reject the notion (see slip op. at 44-45) that any discussion of the record evidence on the safe past 

practices that led Hoodenpyle to make the decisions he did thereby converts the analysis of what 

a reasonably prudent miner would have “objectively” done into a “subjective” analysis. 

42 FMSHRC Page 542
Specifically, Hoodenpyle positioned his scaler where his ROPS/FOPS operator’s 

compartment was approximately 60 feet from the face and directly underneath bolted ground. 

Both Inspectors Kennedy and Van Dorn conceded that they had seen mechanical scalers operate 

in this position before, and that doing so was not a violation. Indeed, Kennedy, who had four 

years of underground experience at the mine prior to joining MSHA, testified that he had 

observed mechanical scalers operate multiple times and that such positioning was normal. 

Likewise, Van Dorn testified that he had seen mechanical scalers operate where the cab of the 

machine was underneath the last row of bolts, and that he had never issued a citation for such an 

occurrence before. Significantly, Van Dorn testified that it is not even a violation for a 

mechanical scaler to be underneath 100% unbolted ground. Tr. 391. 

Prior to January 21, 2015, the operator had never experienced an incident where a miner 

was injured as a result of rock falling on the operator’s compartment in a mechanical scaler. 

Based on the “normal” location of Hoodenpyle’s scaler, as well as the lack of prior similar 

incidents and citations, a reasonably prudent person would have believed that Hoodenpyle’s 

location for performing scaling would have protected him from the hazard of falling material. 

Moreover, prior to January 21, 2015, the mine had never experienced any unplanned 

ground falls where Split Set roof bolts failed in ground conditions similar to those in the area of 

the collapse. Likewise, Split Set roof bolts have been used for decades to support brecciated 

ground at Doe Run, and have proven to be effective without a history of failure. The unanimous 

opinion of every witness who worked in the fall area prior to the roof fall was that the ground 

conditions and ground support were typical and good. There had never been any instance of 

injury to any mechanical scaler operator at the mine due to being crushed by a rock or because 

rock fell on the operator’s compartment. In short, based on both the ground conditions as well as 

the methods of ground control utilized at the mine, a reasonably prudent person would not have 

recognized the hazard of falling material at Hoodenpyle’s scaling location. 

The standard also requires a finding of no violation here because it offers alternative 

means of compliance. The operator did “provide . . . protection” by the use of specialized 

equipment, including a reinforced cab and an extended boom to keep the miner far from the area 

being scaled, and by bolting the area above the scaler cab – which is not required.29 Interpreting 

the standard in this way encourages the adoption of specialized safety equipment and practices. 

As stated above, there are no details in section 57.3201 as to what “other protection” ought to be 

applied here. Thus, another judgment call by the operator was required here. 

Furthermore, as recognized by the Judge in his S&S analysis, the safety features 

equipped in the mechanical scaler, e.g., the stable chassis that did not require stabilizers or 

outriggers, the optimized line of sight to the scaling area improving visibility, the telescopic 

29 We reject the Secretary’s contention that the operator forfeited this argument by 

failing to raise it before the Judge below. S. Br. at 8 n.3 (citing 30 U.S.C. § 823(d)(2)(A)(iii); 29 

C.F.R. § 2700.70(d); Black Beauty Coal Co., 37 FMSHRC 687, 694–95 (Apr. 2015). Doe Run 

explicitly raised this argument before the Judge on pages 59-60 of its post-hearing brief. DR 

Post-Hg. Br. at 59-60. 

42 FMSHRC Page 543
boom, and the ROPS/FOPS protection, demonstrate that a reasonably prudent person would have 

believed that the scaler offered “protection from falling material” on the day of the accident. 

30 C.F.R. § 57.3201.30 The fact is that the operator did everything a reasonable operator would 

have done both in terms of location and in providing other fall protection, and nothing would 

have been cited as a violation but for the unforeseeable roof fall. 

III. 

Conclusion 

For the reasons stated above, we reverse and vacate the Judge’s findings of violations of 

the ground support standard in 30 C.F.R. § 57.3360 and the scaling standard in 30 C.F.R. 

§ 57.3201.31

 /s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ Michael G. Young 

 Michael G. Young, Commissioner 

/s/ William I. Althen 

 William I. Althen, Commissioner 

30 Moreover, the Secretary failed to produce any definitive evidence that the canopy or 

cab of the scaler was not approved by MSHA or used without the proper tags. 

31 Consequently, the Judge’s negligence findings are vacated as well, and we need not 

reach the Secretary’s arguments regarding S&S and negligence. 

42 FMSHRC Page 544
Commissioner Jordan, dissenting: 

 Roof falls have historically been a major cause of injuries and fatalities in our nation’s 

mines. This case involves a mining accident during which 175 tons of rock collapsed onto a 

mechanical scaler which miner John Hoodenpyle was operating.1

 He did not survive. The 

Judge concluded that Doe Run violated the two mandatory safety standards designed to protect 

miners from such tragedies.2

 I would affirm this ruling. 

The Judge, however, erred by failing to conduct separate analyses as to whether each 

violation was significant and substantial (“S&S”) and in ascertaining the level of negligence for 

each violation. He also incorrectly ruled that the operator’s negligence was low without 

supporting analysis. Consequently, I would remand the case on these issues. 

I.

The Judge Correctly Determined that the Fatal Roof Fall established Per Se Violations of 

the Cited Standards. 

A. The Judge Applied the Per Se Analysis the Commission Utilized for Underground 

Coal Mines. 

In Jim Walter Resources, Inc., 37 FMSHRC 493 (Mar. 2015), (“JWR”), the Commission 

considered the validity of a citation issued in the wake of a roof fall fatality in an underground 

coal mine. The cited standard, in pertinent part, required that “[t]he roof, face and ribs of areas 

where persons work or travel shall be supported or otherwise controlled to protect persons from 

hazards related to falls of the roof. . . .” 30 C.F.R. § 75.202. When the inspector arrived on the 

scene, the miner was lying fatally injured beneath a large roof fall. In affirming the citation, the 

1

 Scaling involves knocking loose rock off of the walls and roof of a mine. Tr. 429-30. 

2

 Doe Run was charged with a violation of the following standards: 

30 C.F.R. § 57.3360: 

Ground support shall be used where ground conditions, or mining 

experience in similar ground conditions in the mine, indicate that it 

is necessary. When ground support is necessary, the support 

system shall be designed, installed, and maintained to control the 

ground in places where persons work or travel in performing their 

assigned tasks. 

30 C.F.R. § 57.3201: “Scaling shall be performed from a location which will not 

expose persons to injury from falling material, or other protection from falling 

material shall be provided. 

Both violations were designated as significant and substantial. 

42 FMSHRC Page 545
Commission observed: “the only conclusion to be reached is that the roof was not supported to 

protect the miner from a roof fall.” 37 FMSHRC at 496. 

However, the Judge in JWR had ruled that the Secretary had failed to prove a violation. 

According to the Judge, in order to uphold the citation, the Secretary had to establish the 

existence of objective signs that were present prior to the roof fall, which would have alerted a 

reasonably prudent person that additional roof support was necessary. Id. at 494. In reaching 

this conclusion, the Judge relied on the Commission decisions in Canon Coal Co., 9 FMSHRC 

667 (Apr. 1987) (Canon), and Harlan Cumberland Coal Co., 20 FMSHRC 1275 (Dec. 1998), 

(Harlan), which had applied this “reasonably prudent person” standard to factual scenarios 

involving a roof fall (Canon) and unsafe roof conditions without a fall (Harlan). 

In overturning the Judge, the Commission observed that “the Mine Act is a strict liability 

statute and this fatality resulting from a fall of roof material where persons work or travel 

unquestionably demonstrates a violation of section 75.202(a).” 37 FMSHRC at 496. The 

majority acknowledged the similar factual context between the case before it and the decision in 

Canon, but specifically declined to follow that decision. In his concurring opinion, 

Commissioner Cohen agreed that “[a] roof that falls and kills a miner was obviously not 

supported ‘to protect persons from hazards related to falls of the roof’ as required by the safety 

standard.” Id. at 498. He wrote separately to express his view that the disposition in JWR

effectively overruled the Commission’s decision in Canon. 

B. JWR is Consistent with Commission and Court of Appeals Precedent as Applied to 

Both Coal and Metal/Non-Metal Mines.

The Commission’s decision in JWR is the most recent in a long line of precedents 

holding operators liable when they have failed to achieve the result required by an MSHA safety 

standard, regardless of the effort the operator may have made to comply with the standard, or the 

operator’s ignorance regarding the existence of the violation. A few examples of these cases 

demonstrate that here, to determine liability, one must simply ask: “was the ground controlled” 

or “was the miner exposed to injury from falling material”? 

Clintwood Elkhorn Mining Co. Inc., 35 FMSHRC 365 (Feb. 2013), involved a miner who 

was unable to stop his truck while it rolled down a haul road, crashed through a berm and flipped 

onto its passenger side. The operator was charged with violating the regulation requiring 

equipment operators to “have full control of the equipment while it is in motion.” Id. at 367, 

(citing 30 C.F.R. § 77.1607). In upholding the citation, the Commission stated: 

[t]he Secretary must only demonstrate, by a preponderance of the 

evidence, that the operator failed to maintain full control of a piece 

of equipment while it was in motion. Nothing in the language of 

the standard requires the Secretary to prove a causal or 

contributing factor for the loss of control . . . . We conclude that 

 

42 FMSHRC Page 546
the judge made a finding that is both necessary and sufficient to 

affirm the citation: the driver lost control of his truck. 

Id. at 370. 

In Musser Engineering Inc., and PBS Coals, Inc., 32 FMSHRC 1257, 1271-72 (Oct. 

2010), a serious inundation led to an operator being charged with using an inaccurate mine map.3

The operator argued that the map was prepared based on the best information available to it, and 

that it was not possible to ascertain the boundaries of the adjacent abandoned mine. The 

Commission nevertheless concluded that because the standard requires that the operator maintain 

an “accurate and up-to-date map,” it followed that if the mine map failed to meet these 

requirements, the operator violated the standard, regardless of whether the operator did 

everything possible to locate an accurate historical map of adjacent mine workings. Id. at 1272. 

In addition, when Spartan Mining was charged with failing to prevent damage to trailing 

cables by mobile equipment,4

 the Commission upheld the citation because: “It is undisputed that 

the trailing cable was run over and damaged by the continuous mining machine . . . .” Spartan 

Mining Co., Inc., 30 FMSHRC 699, 706 (Aug. 2008). It explained why Spartan’s arguments 

were unavailing: 

We are not persuaded by Spartan’s defenses that no violation 

should be found because this was the first time the operator had 

run over a cable and that Spartan had a policy in place to protect 

cables. The Mine Act is a strict liability statute, such that an 

operator will be held liable if a violation of a mandatory standard 

occurs regardless of the level of fault. 

Id at 706.

In El Paso Rock Quarries, Inc., 3 FMSHRC 35 (Jan. 1981), the pertinent safety standard 

required an audible back-up alarm when the equipment operator had an obstructed view to the 

rear. The Judge vacated the citation because the Secretary failed to establish that the operator 

knew or should have known that the alarm was inoperative. The Commission reversed, 

reasoning that under the Mine Act, an operator may be held liable for a violation of a safety 

standard regardless of fault. Id. at 38.

3

 The standard at issue, 30 C.F.R. § 75.1200, states: 

The operator of a coal mine shall have in a fireproof repository 

located in an area on the surface of the mine chosen by the mine 

operator to minimize the danger of destruction by fire or other 

hazard, an accurate and up-to-date map of such mine drawn on 

scale. 

 4

 The operator was charged with violating 30 C.F.R. § 75.606, which requires that 

“[t]railing cables shall be adequately protected to prevent damage by mobile equipment.” 

42 FMSHRC Page 547
The Courts of Appeals have upheld the Commission’s strict liability analysis. For 

instance, in Asarco, Inc.-Northwestern Mining Dept. v. FMSHRC, 868 F.2d 1195 (10th Cir. 

1989), a miner in an underground metal mine sustained a broken foot when struck by a falling 

rock while he was drilling. It was uncontested that he had not complied with the standard 

requiring miners to examine and test the back, face, and ribs of their working places. However, 

the operator argued that it had taken all actions necessary to meet the duty of care mandated by 

the statute and that the miner had engaged in “unpredictable and idiosyncratic misconduct” and 

violated his supervisor’s specific instructions. Id. at 1196. The Court nevertheless upheld the 

Commission’s ruling that once it was determined that the miner employed by Asarco had 

violated the safety standard, the operator was subject to a civil penalty, and the fact that 

supervising employees were not at fault was not a defense to the citation. Id. at 1197. 

In Stillwater Mining Co., 142 F.3d 1179 (9th Cir. 1998) (“Stillwater”), the relevant 

standard required that “[m]achinery, equipment, and tools shall not be used beyond the design 

capacity intended by the manufacturer, where such use may create a hazard to persons.” 30 

C.F.R. § 57.14205. After ore being loaded from a chute into a waiting railcar jammed in the 

chute, the gate assembly detached, permitting the ore and muck to flow from the chute, killing a 

miner. Agreeing with the Judge below, the Ninth Circuit held that “[w]hatever load was applied 

to the bolts . . . had to have exceeded the design capacity of the bolts; otherwise the chute would 

not have failed.” 142 F.3d at 1185. In rejecting the operator’s argument that it had no reason to 

believe the design capacity was ever exceeded, the Court emphasized that “knowledge and 

culpability . . . are not relevant to the determination of whether there was a violation. As we 

have observed, the [Mine Act] imposes ‘a kind of strict liability on employers to ensure worker 

safety.’” Id. at 1184 (citations omitted). 

Here, in spite of the roof fall, my colleagues decline to find violations. They find it 

persuasive that the operator had long operated mines in the same ore deposit, that there was no 

evidence of any prior roof fall, that MSHA had inspected the area shortly before the fall and did 

not note any problematic ground conditions, and that the operator had never experienced an 

incident where a miner was injured as a result of rock falling on the operator’s compartment in a 

mechanical scaler. Slip op. at 19-25. But the Stillwater court rejected similar defenses. 

Stillwater pointed out that the chute had been used for over five years without incident during 

which time more than 200,000 tons had flowed through the gate, the chute assembly was 

regularly inspected by workers and MSHA, and no changes or adverse conditions had occurred. 

142 F.3d at 1183. The Ninth Circuit discounted such reasoning, adopting instead a per se 

approach: the chute failed, and thus the design capacity of the bolts must have been exceeded. 

C. The Majority Erroneously Applied A Reasonably Prudent Person Standard to 

Determine Liability.

 

In contrast to the strict liability standard applied to the coal mine roof fall fatality in JWR, 

the majority contends that the distinctive nature of metal mines necessitates a reasonably prudent 

person test. Slip op. at 15-16. My colleagues’ conclusion, however, rests on a faulty analysis. 

In fact, their approach flies in the face of the intent expressed by the drafters of the Mine Act that 

miners in metal/non-metal mines enjoy safety protections equal to those which had been set forth 

42 FMSHRC Page 548
in the Coal Act. The Senate Report made clear the desire to rectify the distinction which existed 

between the two groups of miners: 

[T]he Metal Act does not provide effective protection for miners 

from health and safety hazards and enforcement sanctions under 

that Act are insufficient to encourage compliance by operators . . . . 

The Committee believes that it is essential that there be a common 

regulatory program for all operators and equal protection under the 

law for all miners. Thus a principal feature of the bill is the 

establishment of a single mine safety and health law applicable to 

the entire mining industry. 

S. Rep. No. 95-181, at 12-13, (1977), reprinted in Senate Subcomm. on Labor, Comm. on 

Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 600-01 

(1978) (“Leg. Hist.”) (emphasis added). 

The Commission cited this legislative history when it rejected a construction of the seat 

belt requirement pertaining to coal miners that would have afforded them less protection than 

that afforded to metal/non-metal miners. The case arose when an inspector observed a coal 

miner who was not wearing a seat belt. The relevant standard provided that miners were 

required to wear seatbelts in certain vehicles where conditions pose a danger of overturning. The 

operator argued that liability should not be based solely on the miner’s failure to wear the seat 

belt. Relying on its training regimen, and its enforcement practices, the operator maintained that 

the miners were in fact “required to wear” seatbelts, as the language of the standard mandated. 

Nally & Hamilton Enterprises, 38 FMSHRC 1644 (July 2016). 

Rejecting that argument, the Commission held that the only sensible reading of the 

regulation was that it required miners to use seatbelts. The failure to wear the seatbelt would be 

sufficient to impose liability. In reaching that conclusion, the Commission noted the 

corresponding regulation applicable to metal/non-metal miners, which explicitly required that: 

“Seat belts shall be provided and worn in haulage trucks.” 30 C.F.R § 57.14131(a). Finding “no 

logical reason why coal mines would be subject to a regulation designed to be less protective . . . 

than the regulation governing other mines” and that it “would make little sense for MSHA or its 

predecessor agency to have intended such a result,” Nally & Hamilton, 38 FMSHRC at 1650, the 

Commission concluded that the coal mine standard should be construed “in a manner that 

provides equivalent and harmonized safety protection across different types of mining ventures.” 

Id. at 1649. 

In this case, however, my colleagues have construed the relevant roof control standard in 

a manner that affords metal/non-metal miners with less protection than that afforded to miners 

working in underground coal mines. A mine inspector arriving upon the scene of a roof fall 

fatality in an underground coal mine can issue a citation for a violation of the standard requiring 

the roof to be supported, without the need to determine that operator negligence was a 

contributing factor to the roof fall. JWR, 37 FMSHRC at 496. An inspector arriving upon the 

scene of a roof fall fatality in a metal/non-metal mine would, according to my colleagues, have to 

determine whether there were objective signs present prior to the fall that would have alerted a 

42 FMSHRC Page 549
reasonably prudent operator to install additional roof support. In other words, the inspector 

would have to demonstrate the operator was negligent before the inspector could issue a citation 

to the metal/non-metal operator. There is no logical reason for this distinction. It is contrary to 

Congressional intent and inconsistent with Commission and Court precedent. Moreover, as I 

discuss in greater detail, infra slip op. at 29-31, the language of the comparative regulations do 

not support such a result. 

Although my colleagues acknowledge that the Mine Act encompasses strict liability 

parameters as a general rule, they claim that here they must apply a “reasonably prudent person” 

test to ensure that principles of fair notice to the operator are upheld. I agree that this test is 

appropriate when a standard requires no clear-cut outcome and fails to alert an operator to what it 

must do to avoid a breach of a safety rule. Thus, I have no quarrel with the majority’s recitation 

of the black-letter law principle that “laws [must] give the person of ordinary intelligence a 

reasonable opportunity to know what is prohibited, so that he may act accordingly.” Slip op. at 

6-7, citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). 

However, there is no notice issue in this case, and thus no need to use the test here. The 

requirements of the two standards are clear, and individuals of “common intelligence” have no 

need to guess as to their meaning. See Alabama By-Products, 4 FMSHRC at 2129. To comply, 

an operator must (1) control the ground in places where persons work or travel, and (2) ensure 

that scaling is performed where falling material will not hurt miners or provide protection from 

such material. The obligations are clear. 

Nonetheless, focusing only on the first sentence of section 57.3360, the majority tries to 

shoehorn it into the class of “incomplete, vague, indefinite or uncertain” standards that the 

majority states are appropriate for use of the reasonably prudent person test. Slip op. at 13-17. 

Whether or not the use of that test might be appropriate in cases where this sentence of the 

standard is at issue, the test is clearly not appropriate here. Here, it is undisputed that ground 

support was necessary.5

 Moreover, as discussed with greater specificity, infra slip op. at 31-32, 

section 57.3201 also states straightforward requirements that do not implicate fair notice 

concerns. 6 

D. Doe Run Violated the Ground Control Standard. 

The Judge here properly concluded that the standards at issue “are essentially identical to 

§ 75.202(a) in that the plain meaning of both standards is there should be adequate ground 

control to protect miners from falling materials.” 40 FMSHRC 1165, 1209 (July 2018) (ALJ). 

The majority criticizes him for relying upon the JWR decision because in doing so, the Judge 

5

 Counsel for Doe Run conceded that experience had indicated that roof bolting was 

necessary. Oral Arg. Tr. At 13 (“Doe Run made the decision that ground support is necessary.”). 

And roof bolt ground support was installed in a portion of the fall area. 

6

 As Commissioner Traynor correctly points out, slip op. at 40-41, the majority’s 

reliance on Amax Chemical Co., 8 FMSHRC 1146 (Aug. 1986) and on Asarco, Inc., 14 

FMSHRC 941 (June 1992) is misplaced. 

42 FMSHRC Page 550
disregarded the “substantial distinction between the regulation of roof control for coal mines and 

the regulation of ground control for metal-nonmetal mines.” Slip op. at 12. According to my 

colleagues, the language of the standards “is strikingly different” and they consider there to be 

“virtually no commonality between the short and direct obligation under section 75.202 and the 

broader language of the subject regulations.” Slip op. at 11. I disagree. 

Regarding section 57.3360, although it requires the metal/non-metal operator to make an 

initial judgment call as to whether ground control is needed, once the operator determines that 

such support is necessary (as the operator did here), there is no discretion as to how adequate that 

support must be. Indeed, as I will illustrate, the regulations are quite parallel on this point: the 

support must prevent the roof from falling on miners. This obligation remains the same, no 

matter whether the miner is employed in an underground coal mine or an underground 

metal/non-metal mine. A careful analysis of the language of the relevant regulations confirms 

the correctness of this assertion. 

The relevant standard for coal mines is located at section 75.202(a) and provides in 

pertinent part: “[T]he roof, face and ribs of areas where persons work or travel shall be 

supported or otherwise controlled to protect persons from hazards related to falls of the roof 

. . . .” 30 C.F.R. § 75.202(a) (emphasis added). 

The corresponding standard for metal/non-metal mines states the following: “When 

ground support is necessary, the support system shall be designed, installed and maintained to 

control the ground in places where persons work or travel in performing their assigned tasks.” 

30 C.F.R. § 57.3360 (emphasis added). 

Both regulations require the operator to achieve the same result and each regulation 

provides the operator with ascertainable certainty as to what that result should be: the operator is 

required to support the roof so that it does not fall and injure a miner. A roof fall fatality 

unquestionably demonstrates a failure to achieve the required result. A failure to achieve the 

regulation’s required result equates to a violation of either standard. This is the approach that the 

Commission took in JWR, and this is the approach that the Judge correctly applied here. 

Consequently, I would affirm the finding of a violation.7

E. Doe Run Violated the Scaling Standard.

As previously noted, section 57.3201 provides that: “[s]caling shall be performed from a 

location which will not expose persons to injury from falling material, or other protection from 

falling material shall be provided.” 30 C.F.R. § 57.3201. 

7

 Even were I to adopt the majority’s reasonably prudent person analysis, I agree with 

Commissioner Traynor, slip op. at 42, n.14, that one would be hard-pressed to conclude that the 

record compels the conclusion that no violation occurred, the standard that must be met in order 

to reverse the Judge. Am. Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (remand not 

necessary when record supports no other conclusion). 

42 FMSHRC Page 551
The requirements of this standard are clear: (1) scaling work shall be performed outside 

the zone of danger of any potential fall of ground or (2) adequate protection shall be provided. 

It is beyond dispute that the miner was scaling from a location where he was exposed to injury. 

Similarly, it is tragically incontrovertible that the structures on Mr. Hoodenpyle’s scaler were not 

adequate to protect him from falling material caused by failure of his employer’s ground control 

system. See, e.g., Sunbelt Rentals, Inc., 38 FMSHRC 1619, 1627 (July 2016) (holding that an 

examination of working places, to comply with the examination standard at issue, must be 

“adequate”). 

The majority’s effort to characterize this outcome-based standard as lacking sufficient 

detail and requiring a judgment call by an operator, slip op. at 13, 15, 23, are unavailing. The 

standard clearly protects against one hazard—injury from falling material. It contains no vague 

phrases requiring subjective judgment. An operator can easily discern its legal requirement: 

miners who are scaling must not be exposed to injury from falling material. Hoodenpyle’s death 

from the roof fall constitutes the requisite evidence that he had failed to scale from a safe 

location that would prevent him from being exposed to falling material. It also demonstrates that 

other adequate protection from the roof fall was not provided. 

 My colleagues claim that section 57.3201 “does not require operators to foresee and 

provide protection against a wholly unexpected and unprecedented collapse of an enormous 

section of stable, hardened limestone.” Slip op. at 15. I believe, however, that the Mine Act and 

MSHA safety standards are designed to protect miners from exactly this type of tragic 

occurrence. Accordingly, I would affirm the Judge’s finding of liability. 

II.

The Judge should have Conducted Separate S&S and Negligence Analyses for the Two 

Violations.

 The Judge deleted the S&S designations associated with both citations, but failed to 

conduct separate analyses. In one sentence and without explanation (other than a brief footnote 

addressing the scaling standard) the Judge also reduced the negligence associated with both 

citations to low. This combined analysis constituted legal error. The Judge was obligated to 

separately evaluate whether each violation was S&S, and the negligence level of each. 

Regarding S&S, instead of conducting separate S&S analyses, the Judge framed the issue 

as whether both violations were S&S, and analyzed the same evidence in the same way for both 

violations. 40 FMSHRC at 1210-14. But whether each violation was S&S is an issue for which 

different evidence is relevant, or for which similar evidence may be of varying significance. For 

example, the S&S analysis of the ground support violation considers the likelihood that 

inadequate or absent ground support will result in the hazard of a roof fall, and whether such a 

roof fall is reasonably likely to result in reasonably serious injury. In contrast, the S&S analysis 

of the scaling violation considers the likelihood that, in the event of falling material, the position 

of the mechanical scaler will result in the hazard of that material falling on miners (such as the 

miner operating the scaler). The position of a scaling machine presumably makes a roof fall no 

more and no less likely to occur; the standard focuses on whether any material that falls will fall 

on miners. The Judge’s S&S analysis, however, considered the likelihood that both violations 

42 FMSHRC Page 552
(undifferentiated) would result in “a rock fall that would have injured [Mr.] Hoodenpyle in his 

scaler cab.” Id. at 1211. That was error. 

The Judge’s negligence determination was also inadequate, and not only because it was 

exceedingly terse. As with his S&S discussion, the Judge combined his negligence analyses, 

failing to distinguish between the two violations. When the Secretary alleges violations of 

separate standards, it is well-established that Judges must conduct separate negligence and 

unwarrantable failure analyses for each violation, even if the violations are “factually related.” 

Sierra Rock Products, Inc., 37 FMSHRC 1, 3-4, 6 (Jan. 2015); Consolidation Coal Co., 23 

FMSHRC 588, 597 (June 2001). 

 Because the separate standards impose different obligations, two negligence analyses are 

required. Sierra Rock Products, 37 FMSHRC at 6. For example, an operator may show low 

negligence on a ground control violation in diligently working to control the ground, but high 

negligence on a scaling violation by permitting miners to scale under unsupported roof or in 

adverse conditions. Or an operator may show high negligence by failing to implement basic 

ground control practices, while diligently prohibiting miners from scaling in adverse conditions. 

The evidence of negligence associated with one violation is not necessarily probative of, and is 

certainly not dispositive of, the negligence associated with another. See id. at 4 (“The relative 

significance of a fact or circumstance may change when different violative conduct is at issue”). 

III. 

Conclusion

I would affirm the Judge’s ruling that Doe Run violated the two standards, and I would 

remand the case for a determination regarding whether the violations were S&S, for a ruling on 

the level of negligence for each violation, and for the assessment of penalties. 

/s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

 

42 FMSHRC Page 553
Commissioner Traynor, dissenting: 

The Doe Run Company operated the Fletcher Mine, a lead and zinc mine in Missouri. 

Unlike coal mine operators, who are required to obtain MSHA approval of comprehensive minespecific plans for controlling the roof in their mines, the Doe Run Company mined without an 

MSHA approved roof control plan. MSHA’s regulations gave Doe Run wide discretion to 

determine where in the mine ground support systems were necessary, along with full 

responsibility to ensure such systems are “designed, installed, and maintained to control the 

ground in places where persons work or travel in performing their assigned tasks.” 30 C.F.R. 

§ 57.3360. This is an especially serious responsibility, given “[f]all of ground has historically 

been a leading cause of injuries and deaths in metal and nonmetal mines.” Safety Standards for 

Ground Control at Metal and Nonmetal Mines, 51 Fed. Reg. 36,192, 36,192 (Oct. 8, 1986). 

Unfortunately, on January 21, 2015, miner John Hoodenpyle was operating a mechanical scaler 

when a massive slab of rock fell from the roof of the Fletcher mine and crushed him to death. 

Following the accident, MSHA issued two citations that were adjudicated in the decision 

on review. The Judge below appropriately concluded that because the Mine Act imposes strict 

liability, the tragic failure of Doe Run’s ground control systems to “control the ground” where 

Hoodenpyle was working established a violation of section 57.3360. The Judge also determined 

the accident that killed Hoodenpyle established a violation of the regulation requiring that 

“[s]caling shall be performed from a location which will not expose persons to injury from 

falling material.” 30 C.F.R. § 57.3201. 

The Judge’s decision finding Doe Run violated both standards flows from our 

foundational precedents firmly establishing that Mine Act regulations are promulgated and 

enforced in a strict liability framework. The majority attempts an end-run around this authority 

by misapplying the “reasonably prudent person” test in order to introduce operator fault and 

foreknowledge as additional elements of proof necessary to establish the violations.1

 But in our 

strict liability framework, operator fault, foreknowledge and other inquiries into negligence are 

irrelevant to the question of whether a violation occurred and are only to be considered when 

determining what penalty, if any, shall be assessed for the violation. It is from this fundamental 

error – and particularly the harm it will do to enforcement of ground control obligations in metal 

and nonmetal mines – that I very emphatically dissent. 

1

 The “reasonably prudent person” doctrine is traditionally used by the Commission and 

originated as a tool to determine whether a safety standard provides the objectively reasonable 

mine operator notice of the prohibition or requirement of a safety standard to the extent required 

by due process. Ideal Cement Co., 12 FMSRHC 2409, 2416 (Nov. 1990) (“whether a reasonably 

prudent person familiar with the mining injury and the protective purposes of the standard would 

have recognized the specific prohibition or requirement of the standard.”). The test is rooted in 

the constitutional right to due process in connection with the deprivation of property. See The 

American Coal Co., 38 FMSHRC 2062, 2112 (Aug. 2016) (Comm’r Althen, dissenting 

(explaining “[i]t is elementary that due process requires that a party must receive fair notice 

before being deprived of property.”)). 

42 FMSHRC Page 554
However, I find error in other parts of the Judge’s analysis. For instance, the Judge 

inappropriately comingled his analyses of whether the discrete violations were “significant and 

substantial” (“S&S”). Furthermore, the Judge erred in summarily concluding that the operator 

demonstrated a low level of negligence without providing a supporting rationale. While I would 

affirm that the standards at issue were violated, these errors would require remand. 

I. 

Mine Act Safety Standards Only Function Properly and As Intended If Operators 

Are Held Strictly Liable Without Regard for Fault or Foreknowledge. 

It is well established that mine operators are universally liable for all violations that occur 

at their mine without regard to fault or foreknowledge of the violative conditions. 30 U.S.C. 

§ 820(a); see also Wake Stone Corp., 36 FMSHRC 825, 827 (Apr. 2014) (“Imposing strict 

liability under the Mine Act is not optional — it is mandatory.”); see, e.g., Ames Constr., Inc., 

33 FMSHRC 1607, 1611 (July 2011), aff’d, 676 F.3d 1109 (D.C. Cir. 2012) (holding that the 

Mine Act imposes strict liability for violations which occur at a mine without regard to an 

operator’s fault); Asarco, Inc., NW Mining Dept. v. FMSHRC, 868 F.2d 1195, 1197 (10th Cir. 

1989) (“the plain meaning of . . . section 110(a) is that when a violation of a mandatory safety 

standard occurs in a mine, the operator is automatically assessed a civil penalty”); Allied 

Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 1982) (“it is a common regulatory 

practice to impose a kind of strict liability on [a mining] employer as an incentive for him to take 

all practicable measures to ensure workers’ safety, the idea being that the employer is in a better 

position to make specific rules and to enforce them than the agency is”); Sewell Coal Co. v. 

FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 1982) (affirming operator liability under the Mine Act 

without regard to fault). 

As part of a strict liability framework, every Mine Act regulation “imposes liability upon 

an operator regardless of its knowledge of unsafe conditions. What the operator knew or should 

have known is relevant, if at all, in determining the appropriate penalty, not in determining 

whether a violation of the regulation occurred.” Peabody Coal Co., 1 FMSHRC 1494, 1495 

(Oct. 1979); see also Nally & Hamilton Enter. Inc., 33 FMSHRC 1759, 1764 (Aug. 2011); Rock 

of Ages Corp. v. Sec’y of Labor, 170 F.3d 148, 156 (2d Cir. 1999) (holding that Mine Act 

regulation “imposes strict liability on mine operators . . . regardless of whether the operator has 

knowledge” of hazard); Stillwater Mining Co. v. FMSHRC, 142 F.3d 1179, 1184 (9th Cir. 1998) 

(“[k]nowledge and culpability, however, are not relevant to the determination of whether there 

was a violation. As we have observed, the FMSHA imposes ‘a kind of strict liability on 

employers to ensure worker safety’”) (citation omitted); Allied Products, 666 F.2d at 894 (“If the 

act or its regulations are violated, it is irrelevant whose act precipitated the violation or whether 

or not the violation was found to affect safety; the operator is liable.”). Following Congress, 

courts have reinforced that we have consistently recognized “the inherent danger of mines, and 

held any failure to comply with a regulation under the Act would result in a citation to the 

operator . . . . [T]here are no exceptions for fault, only harsher penalties for willful violations.” 

Miller Mining Co. v. FMSHRC, 713 F.2d 487, 491 (9th Cir. 1983) (citing Allied Products, 666 

F.2d at 893–894). 

42 FMSHRC Page 555
II. 

Exempting the Standards at Issue From Strict Liability Enforcement Dangerously 

Undermines Ground Control Regulation of Metal and Non-Metal Mines. 

The majority’s refusal to apply the regulations at issue in a manner consistent with strict 

liability dangerously undermines regulation of ground control in metal and non-metal mines. In 

order to fully appreciate this danger, it is necessary to understand how the regulatory framework 

requiring ground control in metal and non-metal mines is significantly different than the planbased framework that governs roof control in coal mines. 

Underground coal mine operators are required to mine in accordance with a roof control 

plan approved by the local MSHA district manager – “suitable” to the prevailing geological 

conditions and mining systems – and abide by generally applicable roof support standards in Part 

75. See 30 U.S.C. § 862(a). These comprehensive and specially-tailored coal mine roof control 

plans mandate minimum specifications for ground support systems, e.g., bolt length, bolting 

patterns. “[A] violation of the requirements in the plan constitutes a violation of the Act.” 

UMWA Int’l Union v. Dole, 870 F.2d 662, 667 & n.7 (D.C. Cir. 1989) (“[t]he requirements of 

these plans are enforceable as if they were mandatory standards”) (quoting S. Rep. No. 95-181, 

at 25 (1977) reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 613 (1978)); see e.g., 

Consolidation Coal Co., 39 FMSHRC 1737 (Sept. 2017). 

In contrast, “the Mine Act imposes no similar obligation [to mine in accordance with a 

mandatory mine-specific roof control plan] upon underground metal and non-metal mines.” 

See Hecla Ltd., 38 FMSHRC 2117, 2125 (Aug. 2016). There are no comprehensive plan 

requirements or regulations governing roof control in metal and non-metal mines. Instead, metal 

and nonmetal operators have been accorded considerable discretion to design, install, and 

maintain support systems provided that the operator performs its obligation to control the 

ground.

2

 See 51 Fed. Reg. at 36,195 (“[Section 57.3360] does not specify the type of ground 

support system to be used, only that it control the ground.”); id. at 36,192 (“The standards are 

performance-oriented, but are sufficiently specific to provide the mine operator with the 

necessary guidance.”) (emphases added). 

Metal and non-metal mine operators are not subject to the detailed mine-specific ground 

control plans the Secretary requires for underground coal mines. Instead, Mine Act regulations 

give them wide discretion and ultimate responsibility as to where and how they control the 

2

 While these regulatory schemes are significantly different owing to historic differences 

between the original the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et 

seq. (1976) (amended 1977) (“Coal Act”) and the Federal Metal and Nonmetallic Mine Safety 

Act of 1966, 30 U.S.C. § 721 et seq. (1976) (repealed 1977)(“Metal Act”), operators of all

underground mines share a common obligation to control the ground in places where miners 

work or travel. 30 C.F.R. §§ 57.3360, 75.202(a); see Nally & Hamilton Enter., 38 FMSHRC 

1644, 1650 (Jul. 2016) (“The Senate Report on the Mine Act notes that the Coal Act was more 

comprehensive in scope and reach than the Metal Act. ”). 

42 FMSHRC Page 556
ground.3

 The majority’s failure to interpret the standards at issue consistent with the strict 

liability framework in which they were promulgated relieves metal and non-metal operators of 

this responsibility, and an incentive, for ensuring their miners are only working in areas where 

the operator can control the ground. Judge Richard Posner described this incentive in an oftcited strict liability case: 

By making the actor strictly liable – by denying him in other words 

an excuse based on his inability to avoid accidents by being more 

careful – we give him an incentive, missing in a negligence 

regime, to experiment with methods of preventing accidents that 

involve not greater exertions of care, assumed to be futile, but 

instead relocating, changing, or reducing (perhaps to the vanishing 

point) the activity giving rise to the accident. 

Indiana Harbor Belt R.R. Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1177 (7th Cir. 1990). 

III. 

The Plain Requirements of the Standards at Issue Were Violated. 

The two safety standards at issue are plain. As discussed more fully below, the operator 

violated both. Whether the operator – or the objective reasonably prudent miner – knew or could 

have known of the ground control failure is totally irrelevant to our inquiry into whether the 

regulations have been violated.4 In this case, these questions are only appropriate in the context 

of the negligence inquiry involved in penalty assessment and review of the S&S designations. 

A. Section 57.3360 Plainly Requires That When Ground Support is Necessary Mine 

Operators Must Provide Sufficient Support to Continuously Control the Ground in 

Places Where Miners Work and Travel. 

The safety standard at 30 C.F.R. § 57.3360 states that “[g]round support shall be used 

where ground conditions, or mining experience in similar ground conditions in the mine, indicate 

that it is necessary. When ground support is necessary, the support system shall be designed, 

3

 Doe Run’s unilaterally developed internal ground control policy provided loose 

guidance to its miners rather than specifying, for example, when a tighter bolting pattern or 

longer bolts would be required. DR Ex. F at 2 (“In general a 5 x 5 pattern is sufficient for 

intersections, however some ground conditions may dictate a tighter spacing . . . [H]istoric 

ground control difficulties may dictate the use of longer fixtures. Spot bolting or pattern bolting 

may be necessary in areas where ground control problems or geologic structures dictate.”). 

4

 Here, there is no cause for the reasonably prudent person test. Due process is 

unquestionably satisfied as all five Commissioners apparently agree that the meaning of 

standards is plain. See slip op. at 16. And when the language in a regulation “is clear, it follows 

that the standard provides fair notice . . . .” See Bluestone Coal Corp., 19 FMSHRC 1025, 1031 

(June 1997). 

42 FMSHRC Page 557
installed, and maintained to control the ground in places where persons work or travel in 

performing their assigned tasks . . . .” 

The language of the standard is clear. “Where the language of a regulatory provision is 

clear, the terms of that provision must be enforced as they are written unless the regulator clearly 

intended the words to have a different meaning or unless such meaning would lead to absurd 

results.” Jim Walter Res., Inc., 28 FMSHRC 983, 987 (Dec. 2006) (citing Dyer v. United States, 

832 F.2d 1062, 1066 (9th Cir. 1987). 

The first sentence of the standard establishes a predicate – ground support shall be used 

where conditions or experience indicate that it is necessary.5

 The design of the standard accounts 

for the variety of mining environments at issue in underground metal and nonmetal mines. For 

instance, not all underground metal and nonmetal mines provide roof bolt ground support. 

Tr. 391; e.g., White Pine Copper Div., Copper Range Co., 5 FMSHRC 825, 832-33 (May 1983). 

It is undisputed that in this case ground support was necessary. Counsel for Doe Run conceded 

that experience had indicated that roof bolting – a form of ground support – was necessary. 

Oral Arg. Tr. 13 (“Doe Run made the decision that ground support is necessary.”).6

 And roof 

bolt ground support was installed in a portion of the fall area. 

The second sentence of the standard plainly states that its requirements are conditioned 

on whether the operator has determined that ground support is necessary.7

 “When ground 

support is necessary, the support system shall be designed, installed, and maintained to control 

the ground in places where persons work or travel.” 30 C.F.R. § 57.3360 (emphasis added). The 

requirements of the second sentence are thus triggered when the operator uses ground support. 

5

 The majority completely ignores the standard’s conditional language and the plain 

requirements imposed in the second sentence in their purported plain meaning interpretation. 

Accordingly, the majority’s interpretation is erroneous. See TRW Inc. v. Andrews, 534 U.S. 19, 

31 (2001) (holding that a cardinal principle of interpretation is to give effect, if possible, to every 

clause or word). 

 6

 The majority finding that “experience indicated that [ground support] . . . was not

necessary” is thus directly contradicted by counsel for Doe Run. Slip op. at 14 (emphasis in 

original). 

 7

 The majority asserts that the question of whether ground support is necessary should be 

resolved by the application of a subjective version of the reasonably prudent person test, 

substituting its own interpretation of the regulation for that of the Secretary, who urges 

consideration of multiple factors relating to ground conditions and mining experience referenced 

in three of our prior decisions. S. Br. at 24-25. See also 51 Fed. Reg. at 36,195 (“Under the final 

rule, ground conditions and mining experience are the criteria for determining if support is 

required.”). Unlike the majority, I would accord due deference to the Secretary’s interpretation 

were the necessity of ground control at issue in this case. But it is not. Here, we already have 

the answer to this inquiry, as all parties agree that ground support was necessary and some 

ground support was deployed in the area where the accident occurred. 

42 FMSHRC Page 558
Each substantial term in the standard plainly states what an operator must do to comply in those 

circumstances where ground support is necessary. 

“[T]he Commission has consistently construed [the term] ‘maintain’ in relation to other 

standards to require a continuing functioning condition.” Nally & Hamilton, 33 FMSHRC at 

1763. In Nally & Hamilton, the Commission recited this history: 

In Lopke Quarries, the Commission, in affirming the judge’s 

finding of a violation, examined Webster’s definition of 

“maintained” and determined that based on its plain meaning, 

“the inclusion of the word ‘maintain’ in the standard . . . 

incorporates an ongoing responsibility on the part of the operator 

. . . .” 23 FMSHRC at 707-08. See also Alan Lee Good, 23 

FMSHRC at 996-98 (affirming the judge’s finding that, because 

the regulation required that braking systems on equipment be 

“maintained in a functional condition,” and the operator conceded 

that the parking brake was inoperative, the evidence established 

that there was a violation of the cited standard); Peabody Coal Co., 

1 FMSHRC 1494, 1495 (Oct. 1979) (finding that a violation of 

section 77.404(a) was established where the operator admitted the 

presence of a hydraulic leak and, therefore, admitted that the 

forklift was not maintained in “safe operating condition”); Jim 

Walter Res., 19 FMSHRC at 1765-66 (affirming a judge’s finding 

that a “monitor was not being ‘maintained’ in ‘proper operating 

condition,”’ as required by 30 C.F.R. § 75.342 where the operator 

intentionally routed air believed to contain methane on a path that 

would prevent methane monitor detection). 

Id. Thus, clearly the requirement that ground support be “maintained to control the ground in 

places where people work or travel” requires that the ground is controlled in a continuing 

functioning condition.8

The standard also requires that the support be “designed” and “installed” to control the 

ground. The term “design” is defined in Webster’s Dictionary as “used as a basis for 

anticipating practical problems and solving them at an engineering stage.” Webster’s Third 

International Dictionary 612 (1986). The term “install” is defined as “to set-up for use or 

service.” Id. at 1171. In this instance, the common dictionary definition of the terms is 

consistent with surrounding language and purpose of the standard. See Akzo Nobel Salt, Inc., 

8

 As Commissioner Jordan explains in her dissent, the requirement to “control” the 

ground in places where persons work or travel is plain and presents no cause for application of a 

reasonably prudent miner test. Slip op. at 28-30. It prompts but one question: was the ground 

controlled? See, e.g., Clintwood Elkhorn Mining Co, 35 FMSHRC 365, 370 (Feb. 2013) (“‘It is 

obvious that the driver here lost control of his truck . . . . Mine operators are strictly liable for 

violations such as this’ . . . . This is where the analysis should have ended.”); see also Premier 

Elkhorn Coal Co., 38 FMSHRC 1587, 1591-92 (July 2016) (same). 

42 FMSHRC Page 559
21 FMSRHC 846, 852 (Aug. 1999) (“It is a cardinal principle of . . . regulatory interpretation 

that words that are not technical in nature ‘are to be given their usual, natural, plain, ordinary, 

and commonly understood meaning.”). Thus, the ordinary and uncomplicated meaning of these 

terms cumulatively require that when ground support has been determined to be necessary, a 

mine operator must provide sufficient support to continuously control the ground in places where 

miners work and travel.9

 Therefore, if the ground falls in an area where a miner works or travels, 

the operator is strictly liable. This is true regardless of whether the operator could have foreseen 

the fall, whether the operator’s or miners’ conduct contributed to the fall, or whether the fall 

actually placed any person in danger. 

This plain meaning interpretation is consistent with a similar safety standard applicable to 

underground coal mines, 30 C.F.R. § 75.202(a) (“[t]he roof, face and ribs of areas where persons 

work or travel shall be supported or otherwise controlled to protect persons from hazards related 

to falls of the roof, face or ribs and coal or rock bursts.”). In Jim Walter Resources, Inc., 37 

FMSHRC 493, 495 (Mar. 2015), the Commission held that “under the plain language of [section 

75.202(a)] and the strict liability approach governing Mine Act violations, the Secretary . . . need 

only show (1) that the roof fall occurred in an area where persons work or travel and (2) that the 

roof was not supported to protect persons from hazards related to falls.”10 The majority attempts 

to distinguish JWR on the ground that it involved an underground coal mine and the metal/nonmetal mine operators must have the “flexibility to deal with the conditions as they see fit.” Slip 

op. at 12. But this wide flexibility only works to improve safety when it is exercised within a 

regulatory framework that imposes strict liability on operators to create the “incentive, missing in 

a negligence regime, to experiment with methods of preventing accidents that involve not greater 

exertions of care, assumed to be futile, but instead relocating, changing, or reducing (perhaps to 

the vanishing point) the activity giving rise to the accident.” Am. Cyanamid Co., 916 F.2d at 

1177. 

The majority misconstrues the Commission’s use of the “reasonably prudent person” test 

in Asarco, Inc., 14 FMSHRC 941, 948 (June 1992). Slip op at 17-18. Asarco involved a roof 

fall and two alleged violations of 30 C.F.R. § 57.3401 (“designated persons shall examine and, 

9

 Because the contested provisions of the standard are plain and clear, there is no due 

process notice issue to address. The plain meaning of common ordinary usage language in the 

standard’s language provides adequate notice to mine operators. See Dynamic Energy, Inc., 32 

FMSHRC 1168, 1172 (Sept. 2010); Jim Walter, 28 FMSHRC at 988 n.6. 

10 In JWR, the Commission acknowledged that its holding was inconsistent with the 

interpretation articulated in Canon Coal. JWR, 37 FMSHRC at 496 n.7 (“we decline to follow 

the Canon decision.”); cf. Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987) (“the adequacy of 

particular roof support or other control must be measured against the test of whether the support 

or control is what a reasonably prudent person . . . would have provided in order to meet the 

protection intended by the standard.”). Accordingly, Commissioners Althen’s and Nakamura’s 

expressions of their hesitation to ignore Canon Coal in JWR are simply dicta. The only

principled manner in which to read JWR is that it established a new interpretation of section 

75.202(a) – overturning Canon Coal. See JWR, 37 FMSHRC at 498 (Comm’r Cohen, 

concurring). 

42 FMSHRC Page 560
where applicable, test ground conditions in areas where work is to be performed . . . .”). The 

Commission applied the “reasonably prudent person” doctrine to consider whether the operator 

had notice that the standard at section 57.3401 prohibited exclusive reliance on its preferred 

method of testing the roof. The test was appropriately used to confirm the regulated community 

did not have constitutional notice of the requirements of the standard, not to interpret into those 

requirements a defense against violations committed without fault or foreknowledge. 

Asarco argued that it reasonably believed that using a jumbo drill to vibrate the roof 

totest for loose ground satisfied the safety standard’s requirements. The Commission agreed, 

concluding that the Secretary did not demonstrate that a “reasonably prudent person familiar 

with the mining industry would have recognized that a jumbo drill could not be used effectively 

to test for loose ground.” Asarco, 14 FMSHRC at 945-46, 949-50. Section 57.3401 neither 

provided a methodology for testing nor had the Secretary provided any supplemental guidance in 

his Program Policy Manual. Id. at 947. Furthermore, witnesses for the operator and the 

Secretary testified that using a jumbo drill to vibrate the roof to test for loose ground was a 

common practice in the industry. Id. at 948-49. Accordingly, the Commission concluded that 

the Secretary’s regulation failed to provide Asarco with adequate notice. Id. at 949-50.11

 

11 Asarco also concerned two alleged violations of 30 C.F.R. § 57.3200 which provides 

that “[g]round conditions that create a hazard to persons shall be taken down or supported before

other work or travel is permitted in the affected area.” (emphasis added). My colleagues in the 

majority contend that they interpreted the standard under a reasonably prudent person test. Slip 

op. at 17. This is incorrect. Instead, the Commission relied on the plain ordinary meaning of the 

term “before” to hold that the Secretary must prove that there was “a reasonably detectable 

hazard before the ground fall.” Asarco, 14 FMSHRC at 951 (emphasis in original). The 

Commission concluded that the evidence the Secretary introduced of the roof conditions after the 

occurrence of the roof fall was not substantial evidence to support the Judge’s finding of a 

violation because the specific language of the safety standard requires evidence of a problem 

before the fall. In fact, despite my colleague’s mischaracterization, slip op. at 17-18, the only 

time the Commission referenced the “reasonably prudent person” test in discussing section 

57.3200 was in reference to the prior finding that the mine operator did not have notice that a 

jumbo drill did not comply with the testing requirements of section 57.3401. 

42 FMSHRC Page 561
Section 57.3360 on the other hand is sufficiently specific to notify the operator of its 

obligation: to control the ground in places where people work and travel. Accordingly, the issue 

in the case at hand is fully distinguishable from the Commission’s consideration of what the 

ambiguous term “test” in section 57.3401 requires.12

In addition, my colleagues inaccurately claim that Amax Chemical Co., 8 FMSHRC 1146 

(Aug. 1986), supports their erroneous application of the reasonably prudent person test. Slip op. 

at 18. Notably, Amax neither contains the phrase “reasonably prudent person” nor does it 

concern an issue of regulatory interpretation. Rather, Amax concerns whether substantial 

evidence supports the Judge’s finding of a violation of 30 C.F.R. § 57.3-22 (1984) (a now 

defunct safety standard which required loose ground to be taken down or adequately supported). 

The Commission concluded that substantial evidence supported the Judge’s determination. 

However, the Commission wrote further to clarify that while ground that makes a “drummy” 

sound when struck with a hammer suggests that the ground is loose, it does not establish that the 

ground is loose per se. 8 FMSHRC at 1148-49. My colleagues in the majority extrapolate this 

evidentiary ruling beyond all recognition. 

 

The majority’s reliance on White Pine Copper Div., 5 FMSHRC at 825, is similarly 

misplaced. Slip op. at 18-19. In fact, White Pine illustrates how far my colleagues have strayed 

from Commission precedent. The case involved a prior roof control standard, 30 C.F.R. § 57.3-

12 The majority reads the opinion in Asarco to imply the question of whether an operator 

had notice sufficient to support imposition of a civil penalty consistent with constitutional due 

process is controlling on the preliminary interpretive question of whether the operator violated 

the regulation. This is error, as explained in a D.C. District Court opinion recounting the historic 

development and application of the due process notice requirement in the regulatory context: 

While it is clear that the notice requirement is not limited to the 

criminal realm, it also has not been applied to limit agencies’ 

interpretations in all contexts. Nearly all of the cases applying the 

“fair notice” doctrine concern an agency’s imposition of a penalty 

against a private party and, moreover, formulate the doctrine in 

terms of penalties. 

Arkansas Dep’t of Human Servs. v. Sebelius, 818 F. Supp. 2d 107, 120–21 (D.D.C. 2011). Even 

if in Asarco we had explicitly departed from traditional application of the due process inquiry, 

that holding would have been superseded by numerous cases explicitly recognizing interpretation 

of a regulation to determine whether it was violated is not contingent on the due process analysis 

used to determine whether a civil penalty may be imposed. See, e.g., id.; Berwind Natural Res. 

Corp., 21 FMSHRC 1284, 1328 (Dec. 1999) (“[A]n agency’s interpretation may be permissible 

but nevertheless may fail to provide the notice required to support imposition of a civil 

penalty.”); Consol Buchanan Mining Co., LLC v. Sec’y of Labor, 841 F.3d 642, 651 (4th Cir. 

2016), as amended (Nov. 23, 2016) (“[Operator] had fair notice that the failure to replace 

defective shutoff valves raised the possibility of sanctions, and MSHA is therefore not barred 

from seeking civil penalties in connection with this violation.”). 

42 FMSHRC Page 562
20 (1984), that required “[g]round support shall be used if the operating experience of the mine, 

or any particular area of the mine, indicates that it is required.” 5 FMSHRC at 825. 

My colleagues ignore that “[t]he only question before the Commission [in White Pine] 

[was] whether the particular conditions of the cited area required roof support, not which type of 

roof support.” Id. at 835, n.19. The Commission held that once the operator determines that 

ground support is necessary in an area, the safety standard requires that the operator use 

“sufficient” support to “protect[ ] miners against roof falls.” Id. at 837. In the case at hand, 

because counsel for Doe Run conceded that ground support was necessary and Doe Run had 

actually come to the same conclusion by installing ground support measures in the accident area, 

the only question before us is whether that support was sufficient.13 My colleagues twist 

themselves in analytical circles in an attempt to relieve the operator of the imposition of any 

legal obligation of sufficiency. 

Here, the Judge found that the occurrence of the roof fall – which crushed a miner to 

death – violated Doe Run’s obligation to control the ground in a place where miners work or 

travel. 40 FMSHRC 1165, 1209-1210 (July 2018) (ALJ). I affirm this conclusion.14 Whether or 

not Doe Run demonstrated negligence in using a 5 x 5 split-set bolting pattern at the site of the 

RC3PO northeast fall area, is the type of inquiry that is confined to the section 110(i) penalty 

criteria.15

13 Like Doe Run’s counsel, my colleagues acknowledge Doe Run used ground support 

measures at the location where the accident occurred, emphasizing “[t]hat is precisely what Doe 

Run did here – apply ground support in the location where it was necessary.” Slip op. at 9 

(emphasis in original). But the ground support Doe Run applied failed to control the ground 

where it was applied. 

14 Even if Mine Act regulations were not created in a strict liability framework – a notion 

contrary to the plain text of the statute and decades of precedent – and I joined the majority in 

applying a reasonably prudent person test to inject foreknowledge and negligence into the 

analysis, I would not be able to conclude that the record compels the conclusion that no violation 

occurred, the standard that must be met in order to reverse the Judge. See Am. Mine Servs., Inc., 

15 FMSHRC 1830, 1834 (Sept. 1993) (remand not necessary only when record supports no other 

conclusion). For example, the Secretary argued that test holes should have been drilled in the 

fall area. Vernon Roark, the roof bolter, testified that he had not been trained how to drill test 

holes and did not drill test holes. Tr. 465-66, 473-74. A second roof bolter, Sam McCabe, told 

Van Dorn that he did not drill test holes either. Tr. 386. The Secretary also presented evidence 

regarding loose rock in the area and prior roof falls. Tr. 292-93; S. Br. at 26. The Judge made 

no finding regarding the roof bolters’ failure to drill test holes. 

 15 My colleagues have injected the concept of negligence into the analysis of whether an 

operator was strictly liable for a violation of a safety standard, demonstrating a fundamental 

misunderstanding of how the Mine Act operates. It is well established that mine operators are to 

abide by mandatory safety standards, and if the standard is violated the operator is liable, 

regardless of foreknowledge, negligence or fault. 30 U.S.C. § 820(a); Peabody Coal Co., 

 (continued...) 

42 FMSHRC Page 563
B. Section 57.3201 Plainly Requires that Scaling be Performed From a Location That 

Does not Expose Miners to Injury From Falling Material. 

The safety standard at section 57.3201 provides that “[s]caling shall be performed from a 

location which will not expose persons to injury from falling material, or other protection from 

falling material shall be provided.” 30 C.F.R. § 57.3201. The requirements of this standard are 

clear – scaling work shall be performed outside the zone of danger of any potential fall of ground 

or adequate protection shall be provided.16 “[A] ‘safe’ location is one which will not expose 

persons to injury from falling material.” 51 Fed. Reg. at 36,194. 

It is beyond dispute that Hoodenpyle was scaling from a location where he was exposed 

to injury. Counsel for the Secretary has alleged that Doe Run violated the standard based on the 

location of the scaler. S. Post-Hr’g Br. at 21. Doe Run vigorously contested this allegation 

before the Judge below, but mounted no supported defense that it complied with the standard by 

providing “other protection from falling material.” In any event, it is tragically incontrovertible 

that the structures on Mr. Hoodenpyle’s scaler did not protect him from falling material caused 

 

15 (...continued) 

1 FMSHRC at 1495; Nally & Hamilton, 38 FMSHRC at 1651. Only when assessing a civil 

penalty for the violation does the Judge consider if the operator was negligent in violating the 

standard. See Nally & Hamilton, 38 FMSHRC at 1651 (citing Asarco, 868 F.2d at 1997) (“Of 

course, the operator’s fault or lack of fault goes to the issue of negligence and, thus, is considered 

in assessing a civil penalty.”); see also KenAmerican Res., Inc., 42 FMSHRC 1, 8 n.16 (Jan. 

2020) (consideration as to whether the operator was negligent in violating the standard is 

“appropriately confined to the penalty assessment for the violation.”). Notably, the Commission 

has found a violation of a safety standard even when the operator was not negligent. Nally & 

Hamilton, 38 FMSHRC at 1652 (affirming the Judge’s “no negligence” finding); see also 30 

C.F.R. § 100.3(d) (the Secretary can issue a citation alleging “no negligence”). In the case at 

hand, the Judge found that Doe Run demonstrated a low level of negligence. 40 FMSHRC at 

1212. 

16 The majority finds the Commission’s decision in Asarco controlling. Slip op. at 17. 

However, in Asarco, the Commission determined that the standard was directed at ground 

conditions as they appeared before a roof fall based on the inclusion of the term “before” in the 

safety standard. See supra slip op. at 40, n.12. Thus, the language of the standard compels a 

focus on the operator’s foreknowledge. Section 57.3201’s directives are distinct and do not 

contain the term “before” or other similar language requiring an inquiry into foreknowledge or 

any other aspect of a negligence inquiry. Accordingly, the attempted analogy falls flat. 

 

42 FMSHRC Page 564
by failure of his employer’s ground control system.17 Thus, the fact of his injury alone, without 

more, is sufficient to establish a violation of the regulation. 

Despite appearing to find that the language of section 57.3201 is “plain” and therefore no 

deference was owed the Secretary’s interpretation, the majority also holds that purported 

ambiguities in the word “location” and the phrase “other protection” require use of the 

“reasonably prudent person” test. Slip op. at 15-16, 21-22. If the words of the regulation are 

plain, there is no cause for application of the reasonably prudent person test of whether the 

objectively reasonable operator had notice of the requirements of the regulation. If the standard 

contains ambiguities, of course we must consider whether the Secretary’s interpretation is 

reasonable.18 My colleagues have instead chosen to interpret the terms themselves so as to open 

the gates to a “reasonably prudent person” Trojan horse, concealing within it operator defenses – 

lack of fault, foreseeability and foreknowledge – that do not belong in a strict liability analysis. 

My colleagues in the majority note that routine practice had demonstrated that 

Hoodenpyle’s position in the cab was a safe location. Slip op. at 22. But there is absolutely no 

basis in the text of the regulation or our strict liability law to speculate about Hoodenpyle’s 

subjective knowledge of the likelihood of a roof fall or the reasonableness of his choices or 

conduct.19 Indeed, “the reasonably prudent person test contemplates an objective – not 

17 I agree with Commissioner Jordan that the word “protection,” which is not at issue in 

this case, does not introduce ambiguities requiring an exception to the principles of strict 

liability. Slip op. at 32. See Spartan Mining Co., 30 FMSHRC 699, 706 (Aug. 2008) (“We are 

not persuaded by Spartan’s defenses that no violation should be found because this was the first 

time the operator had run over a cable and that Spartan had a policy in place to protect cables. 

The Mine Act is a strict liability statute, such that an operator will be held liable if a violation of 

a mandatory standard occurs regardless of the level of fault.”). The majority declines to apply a 

strict liability interpretation of the standard, claiming it “requires the operator to use its 

experience and judgment in providing alternative fall protection that a reasonably prudent 

operator would provide under the mining conditions,” slip op. at 17, even though the plain 

language of the standard reads, “protection from falling material shall be provided” and the facts 

indicate Hoodenpyle was not protected from falling material. 

18 The majority opinion does not address our duty to defer to the Secretary’s reasonable 

interpretation of regulatory language. Do they find the terms of these regulatory standards plain? 

If not, and they conclude the terms are ambiguous, where is their analyses of whether the 

Secretary’s interpretations are “plainly erroneous or inconsistent with the regulation?” Kisor v. 

Wilkie, 139 S. Ct. 2400, 2411 (2019). Where is any discussion of our duty of deference? 

19 My colleagues flatly claim without elaboration that “any discussion of the record 

evidence on the safe past practices that led Hoodenpyle to make the decisions he did” is an 

objective and not subjective analysis. Slip op. at 22. This is patently incorrect. Establishing 

what is “reasonable” by reference to an actual individual miner or operator’s prior behavior – 

e.g., where they had located the scaler in the past without incident – rather than what the 

hypothetical “reasonably prudent miner” would have done is unquestionably applying a 

 (continued...) 

42 FMSHRC Page 565
subjective – analysis of all the surrounding circumstances, factors, and considerations bearing on 

the inquiry in issue.” Canon Coal Co., 9 FMSHRC at 668; see also Lehigh Anthracite Coal, 40 

FMSHRC 273, 282 (Apr. 2018); Stillwater, 142 F.3d at 1182 (the “appropriate test is not 

whether the operator had explicit prior notice of a specific prohibition or requirement, but 

whether a reasonably prudent person familiar with the mining industry and the protective 

purposes of the standard would have recognized the specific prohibition or requirement of the 

standard.”). 

Inquiry into whether an individual operator or miner was aware of potentially violative 

conditions is nothing more than an examination of whether that person was negligent. Yet the 

majority uses just such an inquiry to reach the (counterfactual) conclusion that the violation must 

be vacated because the scaler’s location did not contribute to the “reasonable likelihood of an 

injurious roof fall onto Hoodenpyle.” Slip op. at 22. This distorted application of an altered 

“reasonably prudent person test,” unsupported by any coherent discussion of our strict liability 

precedents, is just a backdoor inquiry into the operator’s subjective knowledge of the violations, 

their foreseeability and the operator’s degree of fault. It is being used not to faithfully interpret 

and apply the text of the regulation, but rather to add “lack of knowledge, foreseeability or fault” 

(negligence) as a new supra-textual defense available to any operator cited under what was 

promulgated as a strict liability regulation. 

Once a violation is established, the Judge considers the operator’s negligence only in 

setting a penalty for the violation.20 30 U.S.C. § 820(i). “[A] finding on operator negligence is 

19 (...continued) 

subjective rather than objective test. This distortion of the test begs the question of 

reasonableness, by improperly using Hoodenpyle and/or Doe Run’s prior conduct as a 

benchmark of ”reasonable” conduct, rather than using the hypothetical objectively reasonable 

person. This subjective analysis is inappropriate, even in the context of the appropriate 

application of the reasonably prudent person test on the question of whether due process permits 

a penalty (let alone the preliminary question of whether a strict liability interpretation of the 

regulatory terms establishes a violation in the first place). 

20 The D.C. Circuit recognized that the Mine Act separates analysis of liability from 

negligence in Western Fuels-Utah, Inc. v. FMSHRC, 870 F.2d 711, 713 (D.C. Cir. 1989). 

Section 104 of the Act imposes liability on an operator for violations of mandatory standards, id.

at 716 (“the statute necessarily implies that a violation can exist even without an act on the 

operator’s part”), and a civil penalty is imposed based on whether or not the operator was 

negligent, id. (drawing a distinction between “negligent violations and non-negligent 

violations”). My colleagues cite Western Fuels-Utah in an effort to justify their improperly 

injecting a reasonably prudent person theory of liability in lieu of strict liability, slip op. at 9, 

when in fact the D.C. Circuit’s discussion of operator liability and negligence entirely undercuts 

my colleagues’ approach. The majority confuses the concept of strict liability, a mandatory 

aspect of our interpretation of the standards at issue here, with the separate concept of vicarious

liability for the acts of agents or supervisors, which is the primary issue addressed in Western 

(continued...) 

42 FMSHRC Page 566
only necessary when the Commission assesses a penalty.” Sunbelt Rentals, Inc., 42 FMSHRC 

16, 40 (Jan. 2020) (Chair Rajkovich, concurring (citing 30 U.S.C. § 820(i))). 

If this decision were remanded to the Judge for a reassessment of negligence, he may 

reasonably conclude again that Doe Run demonstrated a low level of negligence or even that 

Doe Run was not negligent in permitting the miner to scale at this location. To that end, MSHA 

inspector Jeremy Kennedy conducted a routine inspection of this area the day before the accident 

and reported that the roof appeared to be free of adverse conditions and the bolts flush to the 

back. Similarly, Bob Ridings, a geologist employed by Doe Run, traveled in the area hours 

before the ground fall and testified that the bolts “looked good.” Tr. 689. Tom Welch, a loader 

operator, traveled in under the last row of bolts and testified that “everything looked fine.” 

Tr. 519. 

On the other hand, there is also evidence that suggests Doe Run was negligent in 

permitting the miner to scale from the location where the accident occurred. He was seated 

inside the cab of the scaler, approximately 60 feet from the face. Hoodenpyle’s scaler was 

located at the outermost limits of Doe Run’s discretionary ground control policy. S. Ex. 7 at 1 

(“[s]caling will begin 60’ back from the face”). He was seated under the last row of bolts. 

Approximately 50 feet of unbolted ground was between that row of bolts and the face. S. Ex. 12 

at 4-5. The diagram at Secretary’s Exhibit 12, at 5, depicts the mechanical scaler outstretched, 

using the full 40 foot range of the boom to scale. S. Ex. 8 at 6. Most of the roof fall at issue 

occurred in the unbolted area (75% of the ground fall) and the fall extended back, ripping the last 

row of bolts out as well (25% of the ground fall).21 

20 (...continued) 

Fuels-Utah and most of the cases listed in the majority opinion’s footnote 14. Slip op. at 10. 

My colleagues claim numerous controlling cases mandating strict liability interpretation 

on the question of whether Mine Act standards are violated that are cited throughout this dissent 

are not “relevant to the initial task of interpreting a Mine Act standard to determine an operator’s 

obligations under it and whether a violation even occurred.” Slip op. at 10 (emphasis in 

original). But strict liability is the only proper way to determine whether the terms of the 

standards alone – ruling out questions of negligence, fault and foreseeability – establish a 

violation. 

21 As a corrective action, MSHA recommended new roof control procedures which 

would limit the amount of unbolted ground between the last row of bolts and the face, to ensure a 

safe location for scaling operations. 40 FMSRHC at 1175 (citing Tr. 203); Tr. 310. This new 

policy also requires the uses of the stronger resin bolts within 30 feet of the face in areas of 

disrupted bedding in breccia zones. S. Ex. 8 at 6. The Secretary believes that “limit[ing] 

distances for unbolted areas will ensure a safe location for scaling operations.” Id. at 7. Under 

the new procedures, in areas of disrupted bedding, a scaler could not be seated under the last row 

of bolts, with approximately 50 feet of unbolted ground in front of him, as Hoodenpyle was in 

this case. 

42 FMSHRC Page 567
Doe Run was not drilling test holes to determine the conditions of the ground, in order to 

determine whether it was appropriate to bolt in a tighter pattern or to switch to stronger resin 

bolts. Tr. 294. In fact, Vernon Roark the roof bolter testified that he had not been trained on 

how to use the equipment required to drill a test hole and accordingly, did not drill one to test the 

ground.22 Tr. 465-66, 473-74.23 Furthermore, Doe Run management provided no mechanism for 

miners to communicate the result of a test hole to management. Tr. 59, 184-85. There was even 

testimony that other roof falls had occurred, but MSHA was not able to locate those areas upon 

investigation. Tr. 292-93. In the absence of adequate examination practices, a reasonable fact 

finder could determine that Doe Run was negligent in permitting the miner to scale in this 

location because reasonable care had not been taken to determine if this location was safe to 

continue the use of routine practices. 

I decline to fully marshal the above referenced evidence to robustly examine or come to a 

conclusion on the question of whether Doe Run was negligent in violating the requirements of 

section 57.3201. That is the Judge’s job. I draw upon the contrast in the record evidence as an 

illustrative tool to demonstrate how the evidence at issue is relevant to determining Doe Run’s 

culpability. Because the determination of negligence is the responsibility of the Judge, I take no 

position as what the outcome should be if the issues of negligence associated with each violation 

were remanded. 

 

22 A test hole demonstrates what type of rock the ground is made up of. Tr. 48-49. The 

jumbo drill creates a percussion that has different sounds depending upon the condition of the 

rock. Tr. 49. The test hole is drilled deeper than a hole for a bolt, which means the miners get a 

better sense of the strata above. Tr. 121. A test hole could be three or four feet deeper than a 

hole drilled for a roof bolt. Tr. 121. 

23 My colleagues ignore that Roark testified that he did not know how to drill a test hole, 

when they find that the record is devoid of evidence that test holes had not been drilled. Slip op. 

at 21. 

42 FMSHRC Page 568
IV. 

Conclusion 

In conclusion, I would affirm the Judge’s ruling that Doe Run violated the two strict 

liability standards and would remand the case for a determination of whether they were S&S and 

for a ruling on the level of negligence exhibited in connection with each violation. However, 

because the standards impose different obligations – one imposing an obligation to control the 

ground where necessary and the other requiring that scaling be performed from a safe location 

– the Judge would need to conduct a separate S&S analysis and a separate negligence analysis 

for each. Sierra Rock Products, Inc., 37 FMSHRC 1, 6 (Jan. 2015); Black Beauty Coal Co., 38 

FMSHRC 1307, 1315 n.11 (June 2016). 

/s/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 569
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

August 28, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. LAKE 2018-0340 

AMERICAN AGGREGATES OF 

 MICHIGAN, INC. 

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners 

DECISION

BY: Rajkovich, Chairman; Young and Althen, Commissioners

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

§ 801 et seq. (2018) (“Mine Act” or “Act”). It comes before us on interlocutory review of the

decision of an Administrative Law Judge denying the Secretary’s motion to approve settlement

of a withdrawal order issued pursuant to section 104(g)(1) of the Mine Act.1 The Order asserted

that American Aggregates of Michigan, Inc. (“American Aggregates”) failed to provide a miner

“the MSHA-required 4-hours new miner training prior to beginning work at the mine.” Ex. A at

11 (Order 8952500, May 17, 2018).

The Judge concluded that the Secretary had not presented sufficient facts to support the 

proposed settlement. 41 FMSHRC 382 (May 2019) (ALJ). Upon denying the settlement, the 

Judge recused himself, requested that the case be reassigned to another Judge for hearing, and 

certified his ruling for interlocutory review. The Commission granted interlocutory review. 

1

 Section 104(g)(1) of the Mine Act states: 

If, upon any inspection or investigation pursuant to section 103 of this Act, the Secretary 

or an authorized representative shall find employed at a coal or other mine a miner who has not 

received the requisite safety training as determined under section 115 of this Act, the Secretary 

or an authorized representative shall issue an order under this section which declares such miner 

to be a hazard to himself and to others, and requiring that such miner be immediately withdrawn 

from the coal or other mine, and be prohibited from entering such mine until an authorized 

representative of the Secretary determines that such miner has received the training required by 

section 115 of this Act. 

30 U.S.C. § 814(g)(1). 

42 FMSHRC Page 570
As set forth below, we find that the Judge failed to apply the correct standard for 

consideration of settlement proposals and that the proposed settlement is fair, reasonable, 

appropriate under the facts, and in the public interest. Therefore, we reverse the Judge’s denial of 

the settlement motion and approve the settlement. 

I. 

Factual and Procedural Background 

MSHA’s regulations contain detailed instructions for training new miners. 30 C.F.R. 

§ 46.5(a) requires that each new miner must be provided “with no less than 24 hours of training 

as prescribed by paragraphs (b), (c), and (d).” However, it permits miners to begin work before 

receiving the full 24 hours of training provided they work “where an experienced miner can 

observe that the new miner is performing his or her work in a safe and healthful manner.” Id. 

In turn, subsection (b) permits miners to begin work with no less than 4 hours of training 

and sets forth 7 general topics that must be covered during those 4 hours. 30 C.F.R.

§ 46.5(b). The 4-hour requirement of subsection 46.5(b) is at issue in this case. 

On May 17, 2018, an MSHA inspector issued a section 104(g)(1) withdrawal order to 

American Aggregates, the operator of the Ray Road Plant, a surface sand and gravel mine in 

Oakland County, Michigan. Ex. A at 11. The order alleged that Matthew Weaver, a driller 

operator/helper, “had not received the MSHA-required 4-hour new miner training prior to 

beginning work at the mine . . . [and] had no previous mining experience.” 41 FMSHRC at 382; 

Ex. A at 11 (Pet. for Civil Penalty). The order directed the operator to withdraw the miner from 

the mine until he received the requisite training. The inspector designated the violation as 

significant and substantial (“S&S”) and found the likelihood of injury as “reasonably likely” and 

the expected injury to be “fatal.” He also marked the negligence as “high.” 41 FMSHRC at 383; 

Ex. A at 11. MSHA applied the penalty point schedule set forth in 30 C.F.R. § 100.3 and 

proposed a penalty of $2,007.2

American Aggregates contested the order. It replied that Weaver was not a driller, but 

rather a driller helper. It attached exhibits to its answer setting out factual details of Weaver’s 

training, including classroom training under the Occupational Safety and Health 

Administration’s (OSHA) regulations and on-the-job training performing the same work at other 

non-mining sites. American Aggregates disputed the Secretary’s allegations of the violation and 

asserted that the injury was unlikely to occur, would only result in lost work days if it occurred, 

and that there was no negligence. It also responded that the violation was not S&S. 

 

2

 Upon first impression, a penalty of $2,007 seems remarkably low for an allegedly high 

negligence, S&S, high gravity violation. However, we recognize that the operator was small and 

had no prior violation history. While we are not bound by 30 C.F.R. Part 100, we note that the 

MSHA penalty point criteria assigned the operator only 8 penalty points before the addition of 

points for negligence and gravity. 

42 FMSHRC Page 571
A. Settlement Motion 

On February 14, 2019, the Secretary filed a motion to approve settlement. In that motion, 

American Aggregates accepted the violation. The parties agreed to the removal of the S&S 

designation; modification of the likelihood of occurrence of injury from “reasonably likely” to 

“unlikely;” modification of the level of gravity from “fatal” to “lost work days or restricted 

duty;” and reduction of negligence from “high” to “moderate.” The Secretary modified the 

proposed penalty from $2,007 to $132. In doing so, the Secretary applied his regulatory penalty 

criteria and penalty point formulation to the terms of the violation as accepted by American 

Aggregates. In other words, $132 would have been the prescribed penalty under MSHA’s 

regulations if the violation had been cited as it was proposed to be settled. 

The motion stated that American Aggregates offered the following facts to support its 

position: 

Respondent asserts that Matthew Weaver was not a driller but was 

a Driller’s Helper. Respondent contends that Weaver had received, 

at the time the order was issued, 19.5 hours of OSHA related 

classroom training, had received 4 hours of New Miner Training 

and had received on-the-job training working directly with its 

driller. Respondent concedes that on the day of the inspection 

Weaver had not received training on all seven subject[s] required 

by 30 C.F.R. 46.5 including 46.5(b)(4) 46.5(b)(5), 46.5(b)(6) and 

46.5(b)(7), and the MSHA training that Weaver had received had 

not been properly documented. Respondent stated that although 

Weaver had no previous mining experience, he did have 

approximately one month of experience working with its driller as 

a Driller’s Helper taking core samples at a non-mine property 

being considered for purchased [sic] for future mining. Respondent 

avows that Weaver’s work off mine property was the exact same 

work conducted with the same drill rig the day the withdrawal 

order was issued. Respondent maintains that Weaver worked 

directly with and [sic] closely supervised by its driller. 

41 FMSHRC at 383; S. Settlement Mot. at 3-4. 

For his part, the Secretary asserted: 

In reaching this settlement, the Secretary has evaluated the value of 

the compromise, the likelihood of obtaining a better settlement, 

and the prospects of coming out better or worse after a trial. . . . 

The Secretary believes that maximizing his prosecutorial impact in 

such a manner serves a valid enforcement purpose. Even if the 

Secretary were to substantially prevail at trial, and to obtain a 

monetary judgment similar to or even exceeding the amount of the

settlement, it would not necessarily be a better outcome from the 

42 FMSHRC Page 572
enforcement perspective than the settlement, in which all alleged 

violations are resolved and violations that are accepted can be used 

as a basis for future enforcement actions. A resolution of this 

matter in which all violations are resolved is of significant value to 

the Secretary and advances the purposes of the Act.3

 

S. Settlement Mot. at 2. 

 After reviewing the settlement, the Judge requested clarification from the parties on 

several points. The Secretary responded that he relied on the settlement motion as filed, 

consistent with the standards articulated by the Commission in The American Coal Co., 38 

FMSHRC 1972 (Aug. 2016) (“AmCoal I”). 

B. The Judge’s Decision 

The Judge concluded that the motion did not support settlement because the operator 

acknowledged that it did not provide mandatory training on all topics set forth in 30 C.F.R. 

§ 46.5(b) such as section 46.5(b)(4) (hazard task training) and (b)(7) (rules and procedures for 

reporting hazards), and that an injury resulting from the violation was “likely to result in lost 

work days or restricted duty.” To a great extent, the Judge focused on the removal of the S&S 

designation finding that “the admitted facts do not support removal of the S&S designation.” 41 

FMSHRC at 386. The Judge further noted that the settlement proposed a significant percentage 

reduction of the penalty—about 94%.4

The Judge rejected the Secretary’s contention that the settlement served any future 

enforcement benefit. He concluded that the settlement was not fair, reasonable, appropriate or in 

the public interest and rejected the settlement. He certified, on his own motion, his ruling for 

interlocutory review. Finally, having essentially taken a position upon reviewing the settlement 

motion that the violation was S&S, in an act of judicial statesmanship, the Judge recused himself 

from the case and requested that it be assigned to an alternative Judge. 

On June 6, 2019, the Commission directed review of whether to uphold the Judge’s 

denial of the settlement. 

3

 This is standard language used by the Secretary in many settlement agreements. It states 

concerns for the Secretary in arriving at settlement—namely, the risk of litigation and the 

importance of obtaining admission of alleged violations without the necessity for a contentious 

hearing. 

4

 The Judge did not mention the conformance of the penalty with MSHA’s regulatory 

penalty point system in light of the agreement of the parties. 

42 FMSHRC Page 573
II. 

Disposition 

A. Parties’ Arguments

In concert, the parties argue that the Judge erred by failing to apply the appropriate 

standard for reviewing proposed settlements as articulated by the Commission in AmCoal I and 

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

that the Judge failed to consider the settlement holistically, and instead, engaged in a piecemeal 

review of aspects of the settlement in isolation, focused almost exclusively on the S&S 

designation that the operator contested in its Answer. 

The Secretary also contends that the Judge erred by discounting the future enforcement 

value of the modified order. Further, the Secretary contends that the significant penalty reduction 

in this case was a direct product of reassessing the penalty under the Part 100 standards for 

regular assessments based on the penalty criteria that fairly and appropriately reflected the 

modified designations of negligence and gravity the parties agreed to in the settlement motion. 

As re-evaluated by the Secretary, the violation would result in penalty points significantly below 

the point value that results in the minimum penalty.5

American Aggregates argues that the terms of the settlement reflect a compromise the 

parties reached after negotiation, with both parties making concessions. In particular, it contends 

that it agreed to accept the violation despite providing documentary evidence that the miner 

received more training than required under section 46.5, including extensive OSHA training, 4 

hours of new miner training, and on-the-job training. Thus, American Aggregates argues that the 

violation is for the failure to cover some of the seven expressly prescribed topics during the 4 

hours of new miner training it did provide. It further argues that it covered several of the required 

topics and had already provided 19.5 hours of training in accordance with OSHA regulations.6

American Aggregates further contends that the parties’ settlement was not an admission 

of adverse facts as asserted by the Judge, and that the Judge erred by characterizing the parties’ 

settlement as an agreement to “fundamental, undisputed facts.” 41 FMSHRC at 388. American 

5

 The minimum penalty under the Secretary’s regulation for penalty point assessments at 

30 C.F.R. § 100.3 at the time of the violation was $132 for a violation with 60 or fewer penalty 

points. As found in the Order, and under the Secretary’s penalty point criteria, the violation 

parameters totaled 94 points for the $2,007 assessment. As agreed upon in the settlement, the 

violation parameter reductions would render a point value of 44 points, which is far below the 

regulation’s 60 point threshold. 

6

 The settlement motion submitted by the parties states the operator’s assertion that it 

provided 19.5 hours of OSHA training whereas the operator’s Answer to the penalty petition 

states it provided 19.25 hours of training on a long list of topics. The operator further asserts, in 

its brief to us, that it provided over 30 hours of OSHA and MSHA training. In the interest of 

consistency, and while not making a fact-finding on this point, we use 19.5 hours as noted in the 

settlement motion that was before the Judge. 

42 FMSHRC Page 574
Aggregates asserts a continuing disagreement with certain factual allegations, as reported in the 

settlement agreement, but that it agreed to accept the violation and related designations in order 

to settle the proceeding. 

American Aggregates also argues that the Judge erred in mischaracterizing its position on 

several matters in his order denying settlement.7 Specifically, it points to the Judge’s error in 

stating that American Aggregates “acknowledge[d] that the injury would still potentially result in 

lost work days or restricted duty,” noting that it disputed both in its Answer and the settlement 

motion. Id. at 384. American Aggregates also agrees with the Secretary that the Judge’s 

characterization of the penalty reduction was exaggerated because he focused on a percentage 

but failed to take into consideration that the reduced proposed penalty reflected a new assessment 

amount based on calculations using the Secretary’s Part 100 regulations as applied to the settled 

terms of the violation. 

Both parties assert that the settlement satisfies the standard set forth in AmCoal and ask 

the Commission to vacate the Judge’s decision and approve the settlement. 

B. Commission Review

Under section 110(k) of the Mine Act, Congress vested the Commission with authority to 

approve settlements of contested assessments. 30 U.S.C. § 820(k); AmCoal I, 38 FMSHRC at 

1975. While such authority is internally delegated to the Commission Administrative Law 

Judges in the first instance, the Commissioners retain full authority regarding settlements.8

 We have held that in reviewing settlements, “the Commission and its Judges consider 

whether the settlement of a proposed penalty is “fair, reasonable, appropriate under the facts, and 

protects the public interest.” AmCoal I, 38 FMSHRC at 1976. That is the legal standard 

 

7

 In its brief to the Commission, American Aggregates points out that it submitted 

documentary support of the extensive training it did provide the miner, which included section 

46.5(b)(4) topics. It also disputes the Judge’s statement questioning the alleged contention that it 

was “‘unaware that the training the miner received’ was not sufficient.” 41 FMSHRC at 384. 

8

 Section 110(k) of the Mine Act provides: “No proposed penalty which has been 

contested before the Commission under section 105(a) shall be compromised, mitigated, or 

settled except with the approval of the Commission.” 30 U.S.C. § 820(k). The Commission has 

explained that “Congress authorized the Commission to approve the settlement of contested 

penalties ‘. . . to ensure penalties serve as an effective enforcement tool, prevent abuse, and 

preserve the public interest.’” AmCoal I, 38 FMSHRC at 1976 (quoting Black Beauty Coal Co., 

34 FMSHRC 1856, 1862 (Aug. 2012)). 

42 FMSHRC Page 575
governing settlements.9

 In turn, the decision whether a settlement is fair, reasonable, appropriate 

under the facts, and protects the public interest is made on the basis of a submission by the 

Secretary to which the operator has agreed. See Hopedale Mining, LLC, 42 FMSHRC ___, No. 

LAKE 2019-0149 (Aug. 28, 2020) 

 During the review of a proposed settlement, the Judge is not to engage in fact finding as 

he would post-hearing. See Solar Sources, LLC, 41 FMSHRC 594, 602 (Sept. 2019) (“At the 

pre-hearing settlement stage of a Commission proceeding, no evidence has been adduced into the 

record and the Judge is not required to engage in fact finding.”). Judges may not “assign[] 

probative value to some facts without the benefit of an evidentiary hearing.” AmCoal II, 40 

FMSHRC at 991. Hence, the analysis of submitted facts in a settlement proposal is markedly 

different from an analysis of admitted evidence in a hearing.10 

Whether a violation is S&S is a matter in the first instance of prosecutorial discretion. 

The Mine Act, therefore, recognizes the particular expertise of MSHA in judging whether a 

violation is S&S. Indeed, if MSHA does not charge an S&S violation, the Commission cannot 

make an S&S finding. Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879-80 (June 1996). 

Commission Judges do not have the discretion to make such elevated finding unless it is asserted 

in the first instance by MSHA. The Judge therefore should not have applied the Newtown 

Energy, Inc., 38 FMSHRC 2033 (Aug. 2016), test for S&S determinations to a settlement. 

C. The Judge Erred By Denying the Settlement 

As the Commission articulated in AmCoal, the Commission and its Judges consider 

whether the settlement of a proposed penalty is “fair, reasonable, appropriate under the facts, and 

protects the public interest.” The Commission must review the Judge’s determination to ensure 

that “a Judge’s approval or rejection of a settlement is ‘fully supported’ by the record, consistent 

with the statutory penalty criteria, and not otherwise improper.” However, “abuses of discretion 

9

 The dissent eschews any review of the settlement in favor of advocating, thankfully in a 

more temperate manner than in Hopedale, their focus upon granting Judges carte blanche to deny 

settlements. We do not agree with the dissent’s contention that the Judge has such “wide 

discretion” (slip op. at 13-15, 18) or that “there must be a demonstration that no reasonable Judge 

would have any grounds for denial [of the settlement] . . . in application of the AmCoal standard” 

(id. at 18) in order to vacate a Judge’s denial. The standard of review of a Judge’s settlement 

determination is not a deferential one, but one of whether the Judge has complied with the law 

and whether his determination is supported by the record before him. See Black Beauty Coal Co., 

34 FMSHRC 1856, 1864 (Aug. 2012). 

10 In this respect, the review of a settlement bears a resemblance to a ruling on cross 

motions for summary judgment. The parties present a factual basis and ask for a legal 

conclusion. Regarding settlements, the Judge ultimately reaches a legal conclusion whether the 

joint position of the parties satisfies the established legal basis for settlement. Thus, a settlement 

decision fundamentally is a legal decision based upon an undisputed and joint submission. Of 

course, an important difference is that for cross motions for summary judgment, the facts must 

be uncontested whereas, in a settlement, differences regarding the facts and the ability of each 

party to sustain its position may be a driving force for settlement. 

42 FMSHRC Page 576
or plain errors are subject to reversal.” Black Beauty, 34 FMSHRC at 1864 (citing Knox County 

Stone Co., 3 FMSHRC 2478, 2480 (Nov. 1981)). Here, the Judge plainly erred by denying the 

settlement on the basis of an inappropriate legal determination on S&S on an undeveloped record 

and in contravention to the facts presented by the parties in support of the settlement. 

 In denying the settlement, the Judge concluded that “the admitted facts do not support 

removal of the S&S designation,” 41 FMSHRC at 386, focusing on the lack of training and the 

“reasonable likelihood that the untrained-miner hazard contributed to by the violation [would] 

result in an injury that would result in lost workdays or restricted duty.” Id. at 388. Not only is 

the Judge’s analysis not supported by the facts presented by the parties, but it is an erroneous 

exercise of judicial decision making at this preliminary stage of the proceeding. 

It was undisputed that the miner received 4 hours of new miner training, but that he did 

not receive all 7 modules that are to be covered during those 4 hours. The violation in this case 

is, then, the absence of certain modules that an individual must have before working as a miner.11 

 In settling, the parties essentially agree on the following facts as provided by American 

Aggregates in its Answer and as noted above. The miner received 4 hours of new miner training, 

but missed certain modules. MSHA does not contest that he previously received 19.5 hours of 

safety training. The miner worked as a helper rather than a driller. During the prior month of 

work, he was doing the same job, on the same remote terrain, and under the supervision of the 

same driller. S. Settlement Mot. at 3. The parties further agree that this violation involved 

moderate negligence with the unlikely possibility of a lost work day injury. Given American 

Aggregates’ acceptance of the violation, and based upon the foregoing, both parties agree that 

the settlement is justified.12

 In evaluating the settlement, the Judge misapprehended the correct standard for reviewing 

settlements, opting instead to conduct a private, unsupported S&S analysis under the Newtown 

test. At the pretrial settlement phase of litigation, Judges may not “assign[] probative value to 

some facts without the benefit of an evidentiary hearing.” AmCoal II, 40 FMSHRC at 991. 

Hence, any fact finding or legal conclusions made based on the facts supplied by the parties in 

support of their settlement motion is not appropriate in the Judge’s review of a proposed 

settlement. 

The Judge ignored most of the information relevant to the reasonableness of the 

settlement under the AmCoal I criteria. The Judge failed to take into consideration the many 

elements of the agreement of the parties, specifically, those included in paragraph 6 of the 

11 The order asserts that the miner “had not received the MSHA-required 4-hour new 

miner training prior to beginning work at the mine.” Ex. A at 11. The issue in this case is the 4 

hours of new miner training before beginning work required by 30 C.F.R. § 46.5(b). 

12 If, in undertaking a post-citation or order review, MSHA learns a violation was overcited, we do not consider it a failure for MSHA to reconsider the appropriate designations for a 

violation. While a Judge may require a satisfactory explanation for the reconsideration, we 

obviously would not require MSHA to obstinately support cited conditions after it has 

determined, in the proper exercise of its prosecutorial discretion, not to be appropriate. 

42 FMSHRC Page 577
Secretary’s settlement motion cited above. These facts are directly applicable to consideration of 

the proposed settlement under the proper standard of review articulated in AmCoal I. In sum, the 

Secretary provided significant factual information to support the proposed settlement.13 

 Of course, even in a settlement, the parties may not be amenable to “admitting” the 

correctness of the other party’s position on an issue of law or that a party erred in its evaluation 

of the facts. Therefore, settlements must be read with a realistic eye to the positions of the parties 

in moving toward settlement. 

 In his S&S-focused analysis, the Judge disregarded a host of circumstances 

demonstrating errors by the inspector and other factors supportive of acceptance of the 

settlement:14 

• Contrary to the inspector’s belief, the miner was not a driller, but rather, was a helper. 

The significance is that he was continuously under the control and direction of the driller. 

• As a driller helper, the miner was working in open virgin areas drilling ground samples to 

evaluate for possible future mining. Thus, he did not work near a quarry or pit face or 

around such mining equipment. 

• The miner had 4 hours of new miner training. The violation was for not covering all the 

modules set forth in subsection 46.5(b).15

13 Our dissenting colleagues make the same mistake that the Judge did below, focusing 

almost exclusively on the percentage of the penalty reduction without regard to the abundance of 

factual support provided by the parties to support modification of the order and subsequent 

reduction of the penalty. Slip op. at 15-16 & n.3. These facts are significant not for establishing 

findings of fact in the record, but for explaining the basis of the parties’ settlement. In evaluating 

the settlement, the Judge and Commission must meaningfully consider and assess the factual 

explanation provided by the parties without making credibility determinations or resolving 

conflicts in the record. Neither the Judge below nor the dissent engages in such evaluation of the 

facts pertaining to the violation at issue in this settlement. We consider such facts for the limited 

purpose of ascertaining whether the proposed settlement is “fair, reasonable, appropriate under 

the facts, and protects the public interest.” 

 

14 In reciting these points, we do not make findings of fact. Instead, we recite these points 

as those made by the operator, with supporting documentation, which the Secretary validly could 

consider in reaching settlement and that, in turn, the Commission must consider in reviewing the 

settlement. 

15 The Respondent claims 30 C.F.R. § 46.5(b)(4) training was completed. AA Br. at 5; 

AA Answer at 4-5, Ex. B (attached). It admits subsections (b)(5), (6), and (7) were not 

completed. These are: (b)(5) Instruction on the statutory rights of miners and their 

representatives under the Act; (b)(6) A review and description of the line of authority of 

supervisors and miners’ representatives and the responsibilities of such supervisors and miners’ 

representatives; and (b)(7) An introduction to rules and procedures for reporting hazards. 

42 FMSHRC Page 578
• With regard to topics bearing upon safety, the driller was not “untrained.” In fact, the 

parties accepted that the miner had received 19.5 hours of training that covered virtually 

all aspects related to safe operations. 

• Further, the miner had a full month of on-the-job experience as a driller helper doing the 

same work at the mine site during the preceding month. 

• During that same preceding month working as a driller helper, the miner worked on the 

same type of terrain as when the drill moved onto a mine site. 

• During that same preceding month as a driller helper, the miner worked under the same 

driller who was supervising him on the mine site. 

• Section 46.5(e) provides “Practice under the close observation of a competent person 

may be used to fulfill the requirement for training on the health and safety aspects of an 

assigned task in paragraph (b)(4) of this section, if hazard recognition training specific to 

the assigned task is given before the miner performs the task.” 30 C.F.R. § 46.5(e). 

Because the miner previously performed the same tasks and worked for a month under 

the supervision of the same driller, there is evidence the miner may have had experience 

with the health and safety aspects of being a driller helper as described in subsection 

46.5(b)(4).16

• Having reviewed these facts, MSHA considered that the occurrence of an injury was 

“unlikely.” The motion expressly stated the contention that “because of the training that 

Weaver had received, the experience Weaver had obtained working as a Driller’s Helper 

and the close supervision by it[s] driller, it was ‘unlikely’ that Weaver would incur an[] 

injury.’” S. Br. at 6, n.2 (citation omitted). The parties’ agreement that an injury was 

“unlikely” (S. Settlement Mot. at 4) is reasonable based on the miner’s status as a helper, 

close supervision, prior significant training, receipt of new miner training, prior on the 

job training, and remoteness of the area from danger from proximity to a pit or other 

operational area. The Secretary explained in his brief that “no reading of the settlement 

agreement can support the judge’s view.” S. Br. at 6, n.2. 

Instead of focusing on the above points, the Judge concentrated on his finding, without a hearing, 

that the violation was S&S. Again, it is not appropriate to make such a finding during a 

settlement review. 

16 The dissent accuses us of making an argument not raised by the parties in noting the 

potential applicability of section 46.5(e) to the circumstances of this case. Slip op. at 17. 

However, we note this specific provision of the Secretary’s training regulations because it is 

particularly relevant to the circumstances of this case. We cannot and do not make a legal 

conclusion as to whether the operator was in compliance with the Secretary’s training 

requirements. However, we have the right and duty to consider the law in determining whether 

the Judge’s decision was correct. In fact, the Judge should have considered that part of the law in 

evaluating the true character of the offense, but did not. 

42 FMSHRC Page 579
 In general, when the Commission’s review of the record demonstrates a proper 

consideration by a Judge of a motion and legal standard for settlements, the Commission sustains 

the Judge’s action. However, when a motion, including admissions and concessions of the parties 

demonstrate the Judge erroneously failed to accept a settlement that meets the legal standard for 

approval, the denial of a settlement must be reversed.17

 In reaching our decision in this case, we emphasize the importance of all aspects of 

training, and most definitely, the mandatory 4 hours of training before commencing any work. 

This training is important for the avoidance of accidents and injuries when a worker becomes a 

miner for the first time. It is for this reason, of course, that the regulations require that such an 

employee must work under the watchful eye of an experienced miner who can observe the new 

worker’s performance for health and safety reasons. Our holding, here, is not a diminution by us 

of the importance of training. 

 In this case, American Aggregates admits that the regulation was violated—but this is a 

settlement case. The Secretary’s evaluation toward settlement apparently led him to accept that 

the involved miner had received many more hours of training than the necessary hours required 

by subsection 46.5(b) with a significant focus on safety and health. The Secretary gave credence 

to the fact that the inspector had misidentified the employee as a driller when, in fact, he had a 

lesser job as a driller helper under supervision of a driller. The Secretary further gave recognition 

to the month of experience by the new miner in performing the same work, with the same 

driller/supervisor, on the same type of terrain as at the mine—and removed from the danger of 

active mining equipment in his job. 

In evaluating the violation under the totality of these circumstances, which the Judge 

failed to do, the Secretary acted reasonably in agreeing to acceptance of the violation in return 

for a settlement entailing modification of gravity and negligence. It is a fair compromise to hold 

the operator accountable for its actual failures and to allow the Secretary to proceed with 

efficient use of his resources. In addition, the Secretary benefits from reliance on this violation in 

the operator’s violation history for future enforcement. 

Regarding the Secretary’s use of its penalty point system for purposes of settlement in 

this case, we reiterate that it is the right and duty of the Commission to assess penalties, 

irrespective of any system that the Secretary may use. That being said, we note that in 

settlements, the Judge is not setting the penalty, but instead, is evaluating whether the proposed 

penalty is part of a fair and reasonable settlement.

17 We disagree that reversal of a Judge’s denial of a settlement may occur only when “no 

reasonable Judge would have any grounds for denial under the numerous criteria to be 

considered in application of the AmCoal standard.” Slip op. at 18. The Commission has recently, 

and unanimously, reversed a Judge’s denial of a settlement without applying the standard 

suggested by the dissent. The Ohio County Coal Co., 40 FMSHRC 1096, 1098-1100 (Aug. 2018) 

(reversing a Judge’s denial of the settlement based on his failure to apply the appropriate 

standard and because his reasoning that “an internal inconsistency in the settlement terms that 

undermines the parties’ agreement” was “unsound”). 

42 FMSHRC Page 580
Primary authority to approve settlements of contested proposed assessments is vested by 

Congress to the Commission. 30 U.S.C. § 820(k); AmCoal I, 38 FMSHRC at 1976. While such 

authority may be delegated to the Judges, the Commissioners retain such full authority to 

approve such settlements. Accordingly, we find the proffered penalty to satisfy AmCoal.

III. 

Conclusion 

Based upon a careful review of the settlement motion and entire record, we conclude that 

the settlement is fair, reasonable, appropriate, and in the public interest. Therefore, we vacate the 

Judge’s decision, approve the settlement motion, and assess a penalty of $132.18 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ Michael G. Young 

 Michael G. Young, Commissioner 

/s/ William I. Althen 

 William I. Althen, Commissioner 

18 Commissioner Young believes that remand of improper settlement rejections would 

ordinarily be more appropriate than approval by the Commission, in light of our Judges’ 

experience in reviewing settlements. But we have approved such settlement agreements here, 

when appropriate. See, e.g., Solar Sources, 41 FMSHRC at 600; Ohio County, 40 FMSHRC at 

1100. In this case, we would be required to remand to a different Judge, who would need to 

begin the consideration process anew. That fact, and the marginal likelihood that a significantly 

greater penalty would be assessed by a new Judge on the facts provided by the parties here, 

compel him to agree with the decision to approve the settlement.

42 FMSHRC Page 581
Commissioners Jordan and Traynor dissenting: 

 

American Aggregates of Michigan, Inc. (“American Aggregates”) was charged with 

failing to provide required training to a miner. The parties agreed to settle the case for a $132 

penalty (a reduction of more than 93%). The Judge denied the settlement motion. Because we 

conclude that it was well within the Judge’s discretion to refuse to approve such a significant 

penalty reduction, we would affirm his decision. 

We would affirm the decision of the Judge under the abuse of discretion standard we 

have long applied to review of our Judges’ exercise of discretionary authority to approve or deny 

settlement pursuant to section 110(k) of the Act, 30 U.S.C. § 820(k). We have long held “[t]he 

judge’s front line oversight of the settlement process is an adjudicative function that necessarily 

involves wide discretion.” Knox County Stone Co., 3 FMSHRC 2478, 2479 (Nov. 1981). The 

Commission “has stated repeatedly, if a Judge disagrees with a stipulated penalty amount or 

believes that any questionable matters bearing on the violation or appropriate penalty amount 

need to be clarified through trial, he is free to reject the settlement and direct the matter for 

hearing.” Pontiki Coal Corp., 8 FMSHRC 668, 675 (May 1986). Thus, if a Judge’s approval or 

rejection of a settlement is “‘fully supported’ by the record, consistent with the statutory penalty 

criteria, and not otherwise improper, it will not be disturbed, but . . . abuses of discretion or plain 

errors are subject to reversal.” Black Beauty Coal Co., 34 FMSHRC 1856, 1864 (Aug. 2012). 

An abuse of discretion may be found if there is no evidence to support the decision or if the 

decision is based on an improper understanding of the law. Id. at 1863 (citing Utah Power & 

Light Co., 13 FMSHRC 1617, 1623 n.6 (Oct. 1991) (citations omitted)). 

Our precedents governing our proper review of our Judges’ discretion to approve or deny 

settlements is reviewed at length in our dissent in Hopedale Mining, LLC, 42 FMSHRC ___, slip 

op. at 18-22, No. LAKE 2019-0149 (Aug. 28, 2020), issued on the same day as our decision in 

this case. Though application of those precedents in this case should result in affirmance of the 

Judge’s decision to deny the parties’ settlement motion, his decision is nonetheless vacated by 

the majority. The decision below should have been affirmed as a reasonable exercise of the 

Judge’s discretion. When the government and an operator seek Commission approval of their 

agreement to compromise a penalty, they have the burden of persuading a Judge exercising 

reasonable discretionary judgment that the proposed penalty reduction is “fair, reasonable, 

appropriate under the facts, and in the public interest.” The American Coal Co., 38 FMSHRC 

1972, 1976 (Aug. 2016) (“AmCoal I”). 

As a threshold matter, we are obliged to address the majority’s decision to discard the 

abuse of discretion standard, and its assertion that “[t]he standard of review of a Judge’s 

settlement determination is not a deferential one.” Slip op. at 7-8, n.9. In fact, the Commission 

has repeatedly used abuse of discretion review in analyzing Judges’ decisions regarding 

settlement motions. See, e.g., The American Coal Co., 40 FMSHRC 983, 987 (Aug. 2018) 

(“AmCoal II”); Rockwell Mining, LLC, 40 FMSHRC 994, 996 (Aug. 2018); Black Beauty, 34 

FMSHRC at 1869. And abuse of discretion review is, at the core of its essence, a highly 

deferential standard. See, e.g., Gall v. U.S., 552 US 38, 56 (2017) (“The Court of Appeals gave 

virtually no deference to the District Court’s decision . . . [and] [a]lthough the Court of Appeals 

correctly stated that the appropriate standard of review was abuse of discretion, it engaged in an 

42 FMSHRC Page 582
analysis that more closely resembled de novo review of the facts presented . . . .”); General 

Electric Co. v. Joiner, 522 U.S. 136, 143 (1997) (“In applying an overly ‘stringent’ review to [a 

discretionary] ruling, [the Court of Appeals] failed to give the trial court the deference that is the 

hallmark of abuse-of-discretion review.”); In re Lupron Mktg. & Sales Practices Litig., 677 F.3d 

21, 30-31 (1st Cir. 2012) (citations omitted) (“We review a district court’s approval of a 

proposed class action settlement for abuse of discretion. . . . The abuse of discretion standard is 

highly deferential and ‘not appellant-friendly’”). 

Our Judges have wide discretion to reject the parties’ proposal to compromise a penalty, 

provided the Judge has considered each of these American Coal factors, the section 110(i) 

penalty criteria, and other factors we have held relevant to the discretionary determination.1

Here, the Judge did just that. 

The training standard at issue, 30 C.F.R. § 46.5, requires, in relevant part, that each new 

miner must be provided “with no less than 24 hours of training.” 30 C.F.R. § 46.5(a).2

Subsection (b) sets forth the general topics that must be covered in the 24 hours of new miner 

training prior to a miner beginning work at the mine. The settlement motion conceded that the 

operator failed to train the miner on the topics contained in sections 46.5(b)(4)-(7), which 

mandate training on: 

(4) [i]nstruction on the health and safety aspects of the 

tasks to be assigned, including the safe work procedures of such 

tasks, the mandatory health and safety standards pertinent to such 

tasks, information about the physical and health hazards of 

chemicals in the miner’s work area, the protective measures a 

miner can take against these hazards, and the contents of the 

mine’s HazCom program; 

(5) Instruction on the statutory rights of miners and their 

representatives under the Act; 

(6) A review and description of the line of authority of 

supervisors and miners’ representatives and the responsibilities 

of such supervisors and miners’ representatives; and 

 

1

 These other factors for consideration include the future enforcement value of accepting 

violations as written, AmCoal II, 40 FMSHRC at 989; the possibility of criminal penalties, 

Aracoma Coal Co., 32 FMSHRC 1639, 1641 (Dec. 2010); settlement provisions requiring 

operator implement personnel changes or training improvements, AmCoal I, 38 FMSHRC at 

1982; and deterrence, Black Beauty, 34 FMSHRC at 1864-65. 

2

 The order alleged a violation of this provision – section 46.5(a). It specified that the 

miner had not received the MSHA-required 4-hour new miner training prior to beginning work at 

the mine. 

42 FMSHRC Page 583
(7) An introduction to . . . rules and procedures for

reporting hazards. 

30 C.F.R. § 46.5(b)(4)-(7) (emphasis added). 

The training requirements in section 46.5 are based on the language of the Mine Act. 

Section 115(a) of the Act requires operators to have a health and safety training program 

approved by the Secretary. 30 U.S.C. § 825(a). The new miner training requirements in section 

115(a)(2) of the Act formed the basis for much of the specific training mandates in 30 C.F.R. 

§ 46.5. The statutory training provision states that each training program shall provide as a

minimum that:

[n]ew miners having no surface mining experience shall

receive no less than 24 hours of training if they are to work on the 

surface. Such training shall include instruction in the statutory 

rights of miners and their representatives under this Act, use of 

the self-rescue device where appropriate and use of respiratory 

devices where appropriate, hazard recognition, emergency 

procedures, electrical hazards, first aid, walk around training and 

the health and safety aspects of the task to which he will be 

assigned. 

The Mine Act also requires each operator to verify that the miner has received the 

specified training in each subject area of the approved training plan. 30 U.S.C. 825(c). In 

addition, Congress was so emphatic about the importance of miner training that it included in the 

Mine Act a provision that a miner who has not received the requisite training must be deemed “a 

hazard to himself and to others” and immediately withdrawn from the mine and prohibited from 

re-entering until the miner has received the required training. 30 U.S.C. § 814(g)(1). 

MSHA’s original proposed assessment for this violation was $2,007. The Secretary’s 

settlement motion proposed a reduction of the proposed penalty to $132.3

 It was entirely within 

the Judge’s discretion to conclude that the parties had failed to demonstrate that such a dramatic 

reduction of a penalty imposed for a violation of the critical training requirements outlined above 

met the American Coal standard. We fail to see how this slap-on-the-wrist penalty amount could 

possibly serve to deter mine operators from future violations of safety standards. We strongly 

suspect that paying this penalty (which is less than the amount of some traffic tickets) would be 

less expensive for the operator than the costs involved in properly training this miner. How the 

public interest in ensuring miner safety is satisfied by this penalty is a mystery. And even if we 

disagreed with the Judges’ conclusions that such a large penalty reduction was not fair or 

reasonable, we cannot see (and the majority does not explain) how and why these conclusions 

fall outside the boundaries of the Judge’s wide discretion. 

42 FMSHRC Page 584

3 Under the Secretary’s penalty regulations in effect at the time the settlement motion 

was filed, $132 was the minimum amount the Secretary could assess for a violation. 30 C.F.R. § 

100.3 (2018). Of course, Commission Judges are not bound by the Secretary’s penalty 

regulations set forth at 30 C.F.R. Part 100. The American Coal Co., 40 FMSHRC 1011, 1015 

(Aug. 2018).
Our colleagues reverse the Judge’s denial of the settlement and approve it. In so doing, 

they entirely mischaracterize his decision. If one reviewed only their opinion and failed to read 

the Judge’s, the reader would come away with the impression that the Judge’s ruling was based 

almost entirely on his view that the S&S designation should not have been deleted as part of the 

settlement. See slip op. at 8, 9. This gives short shrift to the fact that this dramatic decrease in the 

penalty – in addition to several other factors – motivated the Judge’s denial. In his nine-page 

decision, he stated three times that the 93.5% reduction in the penalty was troubling. See 41 

FMSHRC 382, 386 (May 2019) (“While a significant reduction in the proposed assessment 

amount is not impermissible as part of a proposed settlement agreement, the steep reduction 

invites closer scrutiny of the facts presented to ensure that the settlement is ‘fair, reasonable, 

appropriate under the facts, and in the public interest,’ consistent with Commission precedent”); 

see also id. at 388, 389. 

The majority claims that the Judge failed to view the settlement as a whole, but the 

Judge’s own words belie that charge: 

In the present settlement agreement . . . the parties seek to 

modify the likelihood of occurrence, the severity of injury, the 

S&S designation, and the negligence of the underlying Order. In 

addition, the parties seek to reduce the proposed penalty by wellnigh 94%. Almost any future enforcement benefit . . . has been 

almost completely eliminated. . . . The Secretary asks that I 

approve a 93.5% penalty reduction, as well as modifications to 

nearly every portion of the original Order issued for violation of a 

mandatory training standard, enshrined in the text of the Mine Act, 

on the basis of admitted facts that bear no interpretation other than 

the fact that [the operator] violated the Act. 

Id. at 388-89.4

Abandoning all pretense of “abuse of discretion” review, the majority attempts to 

persuade us that the settlement deserves approval by convincing us of their own view that the 

admitted lack of miner training was not really that bad.5 Despite the parties’ concession in the 

settlement motion that the miner “had not received training on all seven subject[s] required by 30 

 

4

 In addition, the Judge explicitly included in his written opinion the section of the 

Secretary’s settlement motion (paragraph 6) setting forth the facts in support of settlement. 41 

FMSHRC at 383. 

5

 They do not even attempt to explain away the operator’s concession that it did not have 

the appropriate documentation of the miner’s training. AA Br. at 6. 

42 FMSHRC Page 585
C.F.R. § 46.5 including 46.5(b)(4)–(7) (S. Settlement Mot. at 3),6

 our colleagues find solace in 

the fact that he was drilling ground samples in an open area (slip op. at 9), “removed from the 

danger of active mining equipment” (id. at 11), which, we suppose, leads them to conclude that 

the lack of training would not be hazardous. In stating that “the parties accepted that the miner 

had received 19.5 hours of training” (id. at 10), they fail to take into account that this was not 

training pursuant to the mine’s approved training program, but instead was OSHA training. They 

appear to equate OSHA training with mine safety training, despite the fact that the record does 

not demonstrate that the two are the same. Did not the Judge have discretion to come to a 

different conclusion? 

They also make a legal argument on behalf of the parties – one not included in the 

settlement motion or in briefs to the Commission – that the operator actually was in compliance 

pursuant to section 46.5(e) (“practice under the close observation of a competent person”).7

 Slip 

op. at 10. They conclude – on the basis of no record evidence – that his work under the 

supervision of a driller “appear[ed]” to provide him with the precise health and safety aspects of 

being a driller helper as described in subsection 46.5(b)(4). Id.8 In short, their vigorous 

arguments for approving the motion run counter to the letter and the spirit of abuse of discretion 

review of settlements. 

Moreover, the Secretary’s argument that the Judge erred by discounting the future 

enforcement value of the modified order barely passes the laugh test. S. Br. at 7. The future 

enforcement value of an order modified from “fatal” to “lost workdays or restricted duty,” from 

high negligence to moderate, with the likelihood of occurrence changed from “reasonably likely” 

to “unlikely” and with a deleted S&S designation, can hardly be viewed as a potent weapon of 

6

 We note with interest our colleagues’ apparent acceptance of a claim made in the 

operator’s brief (AA Br. at 5) that section (b)(4) training (instruction in the health and safety 

aspects of the job) was completed (slip op. at 9 n.15) when the settlement motion clearly states 

otherwise. This, despite the fact that they emphasize a Judge “is not to engage in fact finding,” 

and must analyze the “submitted facts in a settlement proposal.” Id. at 7 (emphasis in original). 

We question, how, given these constraints, our Judges and the Commission can heed the 

majority’s mandate to “meaningfully consider and assess the factual explanation provided by the 

parties.” Id. at 9, n.13. 

7

 The majority attempts to conjure a non-existent distinction between the error in stating 

“a legal conclusion” in a settlement case (slip op. at 8) as opposed to “the right and duty to 

consider the law,” where it chastises the Judge for failing to consider this provision “in 

evaluating the true character of the offense.” Id. at 10, n.16. Were the majority decision 

susceptible to appellate review, such flawed reasoning would not survive scrutiny. 

8

 We are at a loss to reconcile this analysis with what our colleagues meant in their 

Hopedale opinion where they claim principles of “party presentation” prohibit a Judge 

evaluating a settlement motion from looking beyond the facts and explanations presented in the 

parties’ motion. Hopedale Mining, LLC, 42 FMSHRC at ___, slip op. at 5-6, No. LAKE 2019-

0149 (Aug. 28, 2020). 

42 FMSHRC Page 586
mine safety enforcement.9

 More importantly, by what measure, other than their own personal 

views to the contrary, do our colleagues determine the Judge’s conclusion with respect to 

enforcement value of the modified order is outside the bounds of the Judge’s discretion? 

The majority reverses the Judge’s denial of the settlement motion because it concludes 

that the settlement is “fair, reasonable, appropriate, and in the public interest.” Slip op. at 12. 

However, it fails to demonstrate that there is “no evidence” to support the Judge’s decision or 

that it was based on a misunderstanding of the law.10 Black Beauty, 34 FMSHRC at 1863. Our 

colleagues reverse the Judge and approve the settlement, not even attempting to comply with or 

distinguish black letter case law providing our Judge’s wide discretion. These precedents 

mandate an abuse of discretion review of our Judges’ application of the multi-factor standard for 

approval of settlements, which is fundamentally inconsistent with the majority’s use of de novo

review to substitute its preferred conclusions and outcome. The majority decision erroneously 

forecloses the possibility that on remand, the Judge “(like a new jury after a mistrial) might later, 

in the exercise of its lawful discretion, reach the same result for a different reason.” Fed. Election 

Com’n v. Akins, 524 U.S. 11, 25 (1998). Unfortunately, our colleagues have plainly lost sight of 

the proper application of the deferential abuse of discretion standard. See Piper Aircraft Co. v. 

Reyno, 454 U.S. 235, 266-67 (1981) (noting that the appellate court “expressly acknowledged 

that the standard of review was one of abuse of discretion,” but chastising it because “the Court 

of Appeals seems to have lost sight of this rule, and substituted its own judgment for that of the 

District Court.”). 

 

9

 The Judge properly compared the enforcement value of the modified order with those of 

the unmodified order and the unmodified citations in AmCoal II. 41 FMSHRC at 388-89. The 

Secretary’s argument that the Judge was suggesting that only citations preserved as written have 

substantial enforcement value completely misreads the Judge’s analysis. S. Br. at 7. 

10 The majority states that the Judge’s decision was based on a misunderstanding of the 

law because he found that the admitted facts did not support the deletion of the S&S designation 

and because he concluded that there was a reasonable likelihood of injury, which goes to the 

‘gravity’ of the violation for consideration under the penalty factors in section 110(i) of the Mine 

Act, 30 U.S.C. § 820(i). Slip op. at 8. Even if these rulings were deemed erroneous, it would 

constitute harmless error, as the Judge’s decision sets forth other well supported grounds for his 

conclusion the proposed settlement does not meet the American Coal standard. But the 

majority’s approach is to reverse the decision below by identifying its disagreement with the 

application of only one of the numerous criteria used to evaluate a settlement, and then 

substituting its own judgement to reach its favored result without regard for whether there are 

other grounds for denying the motion. 

42 FMSHRC Page 587
Although our colleagues state that the Secretary “acted reasonably” in agreeing to the 

settlement and that the settlement was a “fair compromise,” this is not dispositive. Slip op. at 11. 

It is simply their personal view. A Judge may, within the Judge’s discretion, deny a settlement 

motion that others might argue is reasonable or fair. But for the Commission to reverse the Judge 

and approve the settlement, the bar is high – there must be a demonstration that no reasonable 

Judge would have any grounds for denial under the numerous criteria to be considered in 

application of the AmCoal standard for settlement review. Such a showing has not been made. 

In conclusion, we would affirm the Judge’s denial of the settlement and remand the case. 

/s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

 

 

/s/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 588
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

August 28, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. LAKE 2019-0149 

HOPEDALE MINING, LLC 

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners 

DECISION 

BY: Rajkovich, Chairman; Young, and Althen, Commissioners 

This civil penalty proceeding arises under the Federal Mine Safety and Act of 1977, 

30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). It involves the review of a Commission 

Administrative Law Judge’s denial of a proposed settlement between the Secretary of Labor and 

Hopedale Mining, LLC, regarding four citations, and the Judge’s subsequent convening of a 

hearing rather than ruling on a motion seeking interlocutory review of the denial. 41 FMSHRC 

322, 339 (Jun. 2019) (ALJ). 

For the reasons that follow, we reverse the Judge’s denial of the motion seeking 

interlocutory review, and vacate that portion of the Judge’s decision reaching the merits of the 

citations. We further reverse the Judge’s denial of approval of the settlement motions and 

approve the settlement. 

I. 

Factual and Procedural Background 

At issue in the proposed settlement are four citations issued to Hopedale on December 4, 

2018, at its underground coal mine located in Harrison County, Ohio. All four citations alleged a 

significant and substantial (“S&S”)1 violation of 30 C.F.R. § 75.370(a)(1)2 for failure to follow 

the mine’s ventilation plan. More specifically, Citation No. 8055975 alleged that the operator 

failed to follow the ventilation plan in an area where the roof bolter was operating because an air 

1

 The S&S terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C. 

§ 814(d)(1), which distinguishes as more serious in nature any violation that “could significantly

and substantially contribute to the cause and effect of a . . . mine safety and health hazard.”

2

 Section 75.370(a)(1) provides in part that, “[t]he operator shall develop and follow a 

ventilation plan approved by the district manager.” 30 C.F.R. § 75.370(a)(1). 

42 FMSHRC Page 589
reading behind a line curtain measured 2,792 cfm rather than the required measurement of 3,000 

cfm. Citation No. 8055976 alleged that the operator failed to follow the ventilation plan because 

the operator failed to drop a tail curtain in an intake entry while cutting into intake air. Citation 

No. 8055977 alleged that only 19 of 30 water sprays on a continuous miner were operating, 

while the ventilation plan requires a minimum of 27 of 30 sprays to be operating. Citation No. 

8055978 alleged that the roof bolter’s vacuum measured only 10 inches of mercury (Hg), while 

the ventilation plan requires 12 inches. 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”) proposed 

civil penalties in the sum of $18,093 for the four violations. Hopedale contested the penalties, 

and the matter was assigned to the Judge. 

On March 25, 2019, the Secretary filed a motion to approve settlement stating that the 

operator agreed to pay $3,339 of the $18,093 penalty proposal total. The penalties agreed to in 

settlement were calculated in accordance with 30 C.F.R. Part 100 based on agreed upon reduced 

levels of gravity for two citations and reduced negligence for all four citations. The parties 

agreed that negligence of three of the four citations should be reduced from moderate to low, that 

negligence of one of the four citations should be reduced from high to moderate, and that the 

gravity of two citations should be reduced from highly likely to result in injury to reasonably 

likely to result in injury. 

That same day, the Judge sent an email to the parties stating that she could not approve 

the settlement as submitted because of the seriousness of the violations and the operator’s history 

of ventilation violations. Mot. for Recon., Ex. B. The Judge thereafter set the matter for hearing 

on April 24, 2019, and ordered the parties to submit a list of witnesses and exhibits if the matter 

did not settle. On April 5, 2019, the Secretary submitted an amended motion to approve 

settlement, providing additional information with respect to each citation. 

Five days later, on April 10, the Judge, sua sponte, issued a subpoena directing the 

MSHA inspector who issued the citations to appear and testify at the hearing on April 24, and to 

bring materials related to issuance of the citations. Subsequently, Hopedale and the Secretary 

filed prehearing submissions in response to the Judge’s hearing notice, identically stating that 

they did not intend to present witnesses during the hearing and that the proposed exhibits they 

intended to introduce were joint stipulations. 

On April 17, 2019, the Judge issued an order denying the amended motion for settlement. 

On April 22, the Secretary filed a Motion for Reconsideration of Denial of Settlement 

Agreements, or, alternatively, Motion to Revoke Subpoena, or alternatively, Motion to Certify 

for Interlocutory Review and for Stay Pending Interlocutory Review.3

 

On April 24, the parties and Judge met at the hearing site. The Judge provided the parties 

with an opportunity to argue about the appropriateness of the settlement and the pending motion 

prior to the actual start of the hearing. Tr. 5-8, 19, 20-23. The Judge denied the motion for 

3

 Hopedale later joined the Secretary’s motion for reconsideration and alternative grounds 

of relief. 

42 FMSHRC Page 590
reconsideration, but did not rule on the motions pertaining to the subpoena or interlocutory 

review. The Judge informed the parties that they were expected to call witnesses if they wanted 

facts in the record and not stipulations. Tr. 27. The Secretary submitted revised stipulations into 

the record, which were admitted. Tr. 15, 29, 33. Although the inspector was present, the Judge 

did not ask him any questions. Tr. 39-40. Rather, the Judge dismissed the case on the basis that 

the Secretary failed to meet his burden of proving the violations. Tr. 39-40. 

On June 24, 2019, the Judge issued the decision, vacating the citations and dismissing the 

case. First, the Judge concluded that prior to hearing, the settlement proposals were rejected 

because they were not fair, reasonable, appropriate under the facts, or in furtherance of the public 

interest. The Judge explained that the facts presented in the amended settlement motion and both 

sets of the joint stipulations were insufficient to support the reductions in penalties proposed. 

More specifically, the Judge found that the Secretary had failed to prove lower negligence as to 

the four citations and a lowering of gravity as to two citations. The Judge explained that for each 

citation, the parties presented insufficient information or “information that had little to no 

bearing” on the designation of gravity or negligence for which they sought modification. 41 

FMSHRC at 325. 

Second, the Judge denied the Secretary’s motion for reconsideration and its alternative 

grounds for relief. 

Finally, the Judge considered the merits of the four citations. The Judge accepted the 

agreed upon facts contained in the stipulations, including that the four violations had occurred. 

However, the Judge concluded that the Secretary had failed to meet his burden of establishing all 

four violations as alleged in the citations. She then vacated the citations, and dismissed the 

proceeding. 

The Secretary filed a petition for discretionary review, which the Commission granted. 

The Secretary and Hopedale filed opening briefs contending that the Judge made four legal 

errors. They contend that the Judge erroneously: (1) convened a hearing that denied the parties 

the right to seek interlocutory review; (2) issued a subpoena to obtain evidence in connection 

with settlement; (3) failed to apply or incorrectly applied the standard set forth in American Coal 

Co., 38 FMSHRC 1972, 1976 (Aug. 2016) (“AmCoal I”); and (4) vacated the citations even 

though the parties stipulated that the violations occurred. 

For the reasons discussed below, we conclude that the Judge erred in convening a hearing 

and failed to correctly apply the AmCoal I standard. 

 

42 FMSHRC Page 591
II. 

Disposition 

A. The Judge erred in convening a hearing rather than ruling on the motion seeking 

interlocutory review. 

The Commission reviews a Judge’s management of a case, including pre-trial rulings, 

under an abuse of discretion standard. Marfork Coal Co., 29 FMSHRC 626, 634 (Aug. 2007). 

We conclude that the Judge abused discretion in convening a hearing in this case before ruling 

on the Secretary’s pending motion seeking interlocutory review. 

The Judge’s error involves in part the timing of key pre-trial rulings under the 

circumstances of this case. In the Judge’s April 17 decision denying the amended motion to 

approve settlement, the Judge stated that the parties would be given one additional opportunity to 

explain why the settlement should be approved, but that if the settlement were rejected, the 

parties should move forward to present witnesses and exhibits. 

Five days later, on April 22, the Secretary filed a motion requesting that the Judge 

reconsider the denial of the settlement agreements. The Secretary’s motion alternatively 

requested that the Judge revoke the subpoena issued to the inspector. As a final ground of 

alternative relief, the Secretary requested that if the Judge did not reconsider the denial of 

settlement or revoke the subpoena, the Judge should certify both matters for interlocutory 

review. The Secretary requested that the proceedings be stayed pending interlocutory review. 

The Judge did not reschedule the April 24 hearing in order to first rule on the Secretary’s 

extant motion. Rather, consistent with the Judge’s statement in the April 17 order, the parties met 

at the hearing site on April 24 and were given an opportunity to argue regarding the 

appropriateness of the proposed settlement. Tr. 5-6. In addition, the Judge permitted the parties 

an opportunity to argue the pending motion. Tr. 20-23. 

Although the Judge again rejected the settlement during the proceedings on April 24, she 

did not explicitly rule on the motion to revoke the subpoena or the motion seeking certification 

for interlocutory review. Tr. 18-19, 34-35. Rather, the Judge disposed of the Secretary’s motion 

in the June 24 decision, which also covered the post-hearing merits of the citations. 

In the June 24 decision, the Judge denied the motion seeking interlocutory review on the 

basis that it was moot since the matter had already proceeded to hearing. 41 FMSHRC at 329. 

The Judge reasoned that, in any event, the questions of whether she correctly denied the 

settlement motions and issued a subpoena to the inspector did not involve controlling questions 

of law and that the questions were not “novel” or did not involve “unresolved questions of law.” 

Id. at 330. 

Commission Procedural Rule 76 describes the requirements for interlocutory review and 

provides two alternative paths by which parties may gain interlocutory review. Under section 

2700.76(a)(1)(i), the Judge may certify that the interlocutory ruling involves a controlling 

42 FMSHRC Page 592
question of law and that immediate review will materially advance the final disposition of the 

proceeding. Alternatively, under section 2700.76(a)(1)(ii), if the Judge denies a party’s motion 

for certification of the interlocutory ruling, the party must file a petition for interlocutory review 

within 30 days of the Judge’s denial of such motion for certification. 29 C.F.R. 

§ 2700.76(a)(1)(i) & (ii). 

The Judge erroneously foreclosed the opportunity for the parties to avail themselves of 

the protections afforded by Rule 76(a). Even if the Judge determined implicitly that it was 

appropriate to deny the motion for interlocutory review before proceeding to a hearing on the 

merits, Procedural Rule 76(a)(1)(ii) requires that the parties be allowed the opportunity to appeal 

that ruling to the Commission. The issue of whether the issues should be certified for 

interlocutory review became moot only as a result of the Judge’s abuse of discretion in 

convening the hearing rather than ruling on the motion and allowing the parties to seek 

interlocutory review directly. 

Immediate review of the question would have advanced the final disposition of this 

proceeding because resolution of the question could have resulted in settlement. The 

Commission has repeatedly granted interlocutory review of orders denying approval of 

settlement motions. See, e.g., Solar Sources, LLC, 41 FMSHRC 594 (Sept. 2019); Am. 

Aggregates of Michigan, Inc., 41 FMSHRC (Jun. 2019); Rockwell Mining, LLC, 40 FMSHRC 

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

Co. of MO, 4 FMSHRC 975 (Jun. 1982). In such instances, the Commission concluded that the 

standard set forth in section 2700.76 had been satisfied. See, e.g, Ohio Cty Coal Co., 40 

FMSHRC 1096 (Aug. 2018). 

The Judge’s decision raises further concerns, particularly regarding the longstanding 

principle of party presentation. It is not appropriate for a Judge to assume a role as an 

investigating attorney, prosecuting attorney, or defense counsel. This prohibition is underscored 

by the unanimous decision of the U.S. Supreme Court in United States v. Sineneng-Smith, 140 

S.Ct. 1575 (2020). Justice Ginsburg, in delivering the opinion of the Court, stated it very 

succinctly: 

In our adversarial system of adjudication, we follow the principle 

of party presentation. As this Court stated in Greenlaw v. United 

States, 554 U. S. 237 (2008), “in both civil and criminal cases, in 

the first instance and on appeal . . ., we rely on the parties to frame 

the issues for decision and assign to courts the role of neutral 

arbiter of matters the parties present.” Id. at 243. 

140 S.Ct. at 1579. In quoting Justice Scalia in Castro v. United States, 540 U. S. 375 (2003), 

Justice Ginsburg went on to reiterate the “general rule” that: 

[O]ur system “is designed around the premise that [parties 

represented by competent counsel] know what is best for them, and 

are responsible for advancing the facts and argument entitling them 

42 FMSHRC Page 593
to relief.” Id., at 386 (Scalia, J., concurring in part and concurring 

in judgment). 

In short: “[C]ourts are essentially passive instruments of 

government.” United States v. Samuels, 808 F. 2d 1298, 1301 

(CA8 1987) (Arnold, J., concurring in denial of reh’g en banc)). 

They “do not, or should not, sally forth each day looking for 

wrongs to right. [They] wait for cases to come to [them], and when 

[cases arise, courts] normally decide only questions presented by 

the parties.” Ibid.

Sineneng-Smith, 140 S.Ct. at 1579. 

Our dissenting colleagues, in complete disregard of the controlling law of SinenengSmith, would mandate Judges to take on the role of supervisory prosecutors. While our 

colleagues may disagree with Sineneng-Smith, it is undoubtedly applicable to “our adversarial 

system of adjudication” of Mine Act cases.

At the onset of these events, insistence of convening a substantive hearing without 

affording the parties the opportunity to avail themselves of the process set forth in Procedural 

Rule 76 was error. Accordingly, we reverse the Judge’s denial of the Secretary’s motion seeking 

interlocutory review and vacate that portion of the Judge’s decision disposing of the merits of the 

citations. 

We need not discuss at length additional errors – the Judge’s issuance of a subpoena for 

witness at the hearing and dismissal of violations admitted by the operator. Nevertheless, we 

emphasize that Judges’ conduct must conform to the principle of party presentation as reiterated 

in Sineneng-Smith. For the Judge to: schedule an almost immediate substantive hearing, deprive 

the parties of their right to seek interlocutory review of the denial of the proffered settlement, 

issue a subpoena for a witness attendance at the rushed hearing, and then cap it off by vacating 

admitted violations, was the type of “radical transformation of the th[e] case” that the Supreme 

Court rejected as judicial action that “goes well beyond the pale.” Sineneng-Smith, 140 S.Ct. at 

1581-82. Likewise, we need not discuss at length the Judge’s clearly erroneous post-hearing 

dismissal of citations with respect to which the operator had stipulated its liability.

Thus, we now consider the question presented in the Secretary’s petition for discretionary 

review which should have been the subject of interlocutory review, that is, whether the Judge 

erred in denying the proposed settlement. 

 

42 FMSHRC Page 594
B. The Judge erred in denying the settlement.

Section 110(k) of the Mine Act sets forth the Commission’s authority to approve 

settlements of the Secretary’s proposed assessments once contested. It provides: 

No proposed penalty which has been contested before the 

Commission under section 105(a) shall be compromised, 

mitigated, or settled except with the approval of the Commission. 

No penalty assessment which has become a final order of the 

Commission shall be compromised, mitigated, or settled except 

with the approval of the court. 

30 U.S.C. § 820(k). The Commission has explained that “Congress authorized the Commission 

to approve the settlement of contested penalties . . . ‘to ensure penalties serve as an effective 

enforcement tool, prevent abuse, and preserve the public interest.’” AmCoal I, 38 FMSHRC at 

1976 (quoting Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012)). In “effectuating 

this Congressional mandate, the Commission and its Judges consider whether the settlement of a 

proposed penalty is fair, reasonable, appropriate under the facts, and protects the public interest.” 

AmCoal I, 38 FMSHRC at 1976. 

The Commission and its Judges must have information sufficient to carry out this 

responsibility. 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. 29 

C.F.R. § 2700.31(b)(1). The Commission has recognized that parties may submit factual support 

consistent with the penalty criteria factors found in section 110(i) of the Mine Act, 30 U.S.C. § 

820(i), as well as facts supporting settlement that fall outside of the section 110(i) factors. 

AmCoal I, 38 FMSHRC at 1982. 

During the review of a proposed settlement, the Judge is not expected to engage in fact 

finding as she would post-hearing. See Solar Sources, 41 FMSHRC at 602 (“At the pre-hearing 

settlement stage of a Commission proceeding, no evidence has been adduced into the record and 

the Judge is not required to engage in fact finding.”). Judges are “expected to consider the facts 

as alleged by the parties in their settlement, evaluate such information under the applicable 

Commission standard for review, and determine whether the facts support the penalty agreed to 

by the parties.” Id. Consideration of facts as alleged by the parties is entirely consistent with 

Sineneng-Smith. 

Contrary to our dissenting colleagues’ misrepresentation, our holding does not “instruct[] 

our Judges to ignore whole sections of the record before them.” Slip op. at 22. It does not find 

that “Judges may no longer probe gaps or inconsistencies in the explanation offered in support of 

a settlement motion.” Id. Our holding simply follows our own precedents in a manner consistent 

with the Supreme Court’s unanimous mandate regarding litigation. 

We have held that at the pretrial settlement phase of litigation, Judges may not “assign[] 

probative value to some facts without the benefit of an evidentiary hearing.” AmCoal II, 40 

42 FMSHRC Page 595
FMSHRC at 991. Hence, any fact finding or legal conclusions at the settlement stage must be on 

the facts stipulated to by the parties in support of their settlement motion. A Judge may request 

additional facts, if the parties have not provided a sufficient basis for evaluation under the 

standard we articulated in AmCoal I. The Judge, however, may not reject stipulated facts that do 

not comport with the Judge’s personal view of what should or must have happened at the time of 

the violation. 

This settlement, like most, was submitted on facts stipulated by the parties. There was no 

testimony to review. Under such circumstances, it is unnecessary and inappropriate to make a 

credibility determination regarding the stipulated facts, directly or indirectly, unless the record 

before the Judge positively demonstrated that a stipulated fact is not correct.4

In prior cases, the Commission has applied an abuse of discretion standard in reviewing 

the denial of a settlement. Sec’y of Labor on behalf of Shemwell v. Armstrong Coal Co., 36 

FMSHRC 1097, 1101 (May 2014). Notably, however, in a settlement, the Judge does not weigh 

conflicting evidence or make credibility determinations. The “facts” are the representations made 

by the parties in the settlement motion. The issue is whether, given the representations and 

stipulations of the parties, the settlement meets the Commission’s standard for a settlement. 

Thus, there is no element of support for findings of fact based upon substantial evidence. 

If taking those representations into account, the settlement meets the standard we 

articulated for approval in AmCoal I (fair, reasonable, etc.), the settlement should be approved. 

Although the Commission gives weight to the experience gained by ALJs through the handling 

of many settlements, the denial of a settlement that comports with the standard we have 

established is an abuse of discretion, and the Commission may exercise its discretion to accept 

the settlement. The facts of the settlement come to the Commission in exactly the same form and 

relevance as before the Judge. 

In sum, it is an abuse of discretion to deny a settlement when agreed-upon or stipulated 

facts satisfy the standard for approval. We must review the facts and the conclusions the Judge 

draws from those facts against an objective standard, because one of the elements of the standard 

requires the settlement to be “reasonable.”5

 Under the Mine Act, it is the responsibility of the 

Commission to be the final authority of the compliance of a settlement with the standards we 

have established. 

4 For example, the parties’ Joint Stipulation 8(f) states, “The section foreman was at the 

continuous miner as it cut through the E to F Crosscut, but was unaware the ventilation curtain 

had not been adjusted per the requirements of the plan prior to cutting through.” The Decision, 

on this point, and without examination of actual witness testimony, states, “The argument that 

the foreman was unaware that the line curtain had not been advanced is wholly unpersuasive and 

does not comport with the reasonably prudent miner standard of care.” 41 FMSHRC at 335. 

5

 Consistent with this, we previously recognized that the public interest inquiry is not to 

determine “whether the resulting array of rights and liabilities ‘is one that will best serve 

society,’” but only to show that the resulting “settlement is ‘within the reaches of the public 

interest.’” Armstrong, 36 FMSHRC at 1103-04 (citations omitted) (emphasis in original). 

42 FMSHRC Page 596
Although the Judge correctly articulated the AmCoal I standard for reviewing proposed 

settlements, the denial of the settlement motions was based on a misunderstanding of the law and 

a misapplication of AmCoal I and its progeny. 

The Judge misapprehended the distinction between the type of factual support necessary 

to support penalty assessment after a hearing with the type of factual support that would satisfy 

the AmCoal standard before a hearing and before any evidence has been adduced. That is, the 

Judge erred by requiring the parties to provide evidence to support findings that would be 

appropriate after a hearing, rather than during a settlement review. 

 Indeed, the distinction between how factual support should be handled by the Judge 

during settlement review versus how a penalty is set after a hearing is set forth in the 

Commission’s procedural rules. During a Judge’s consideration of reduced penalties in 

settlement, a Judge need not make factual findings with respect to each of the section 110(i) 

factors.6 AmCoal I, 38 FMSHRC at 1982; AmCoal II, 40 FMSHRC at 991. Rather, Commission 

Procedural Rule 31(g) provides that a Judge’s decision approving settlement need only “set forth 

the reasons for approval and shall be supported by the record.” 29 C.F.R. § 2700.31(g). In 

contrast, Commission Procedural Rule 30(a) provides that in assessing a penalty after a hearing, 

a Judge “shall determine the amount of penalty in accordance with the six statutory criteria 

contained in section 110(i) of the Act,” and that the decision “shall contain findings of fact and 

conclusions of law on each of the statutory criteria.” 29 C.F.R. § 2700.30(a). 

In the proposed settlement, the parties provided facts supported by the record with respect 

to the four ventilation plan violations supporting one-gradient reductions in gravity regarding 

two of the citations and in negligence regarding all four. In addition, in response to the Judge’s 

statement that the operator had a “significant” history of violations, the parties provided specific 

facts related to the operator’s ventilation plan violation history. Tr. 30-32; Jt. Ex. 2 at ¶¶ 4, 7(a), 

8(a), 9(a), 10(a). 

Although Hopedale agreed to accept the fact of violation as to all four citations, the 

parties provided facts supporting the penalty reduction that showed partial compliance with the 

relevant portions of the ventilation plan. With respect to Citation No. 8055975, the 2,792 cfm air 

reading taken by the inspector behind the line curtain was 93% of the level required by the plan 

(3,000 cfm). Jt. Ex. 2 at ¶ 7(f). The parties agreed that the section supervisor’s air reading, which 

was taken just prior to the inspection, showed over 3,200 cfm of air behind the line curtain, and 

that the inspector’s notes confirmed that the foreman stated he had over 3,000 cfm prior to roof 

bolters installing roof bolts. Id. at ¶¶ 7(e), (g). 

With respect to Citation No. 8055977, approximately two-thirds of the water sprays on 

the continuous miner were functional, and the inspector’s contemporaneous notes reflected that 

6

 In fact, the Commission amended Rule 31 to delete a requirement that decisions 

approving settlement must include a discussion of the section 110(i) factors in order “to enhance 

the flexibility of the judges to approve settlements.” AmCoal II, 40 FMSHRC at 991 & n.12 

(citations omitted). 

42 FMSHRC Page 597
the water sprays had been checked after the miner completed the third cut of the shift. Id. at ¶ 

9(g). 

With respect to Citation No. 8055978, the parties stated that the inspector’s notes 

reflected that the roof bolter parameters had been in compliance at the start of the shift, and that 

the roof bolter’s vacuum later measured 10 inches of the 12 inches of mercury required under the 

ventilation plan. Id. at ¶ 10(e); Amended Set. Mot. at 5 ¶ 7(d). 

Related to the level of negligence, Hopedale also provided facts demonstrating that the 

violative conditions were not obvious or readily known to the operator. Jt. Ex. 2 at ¶ 7(h); 

Amended Set. Mot. at 3-5 ¶¶ 7(a), (b), (c), (d). The Secretary agreed to accept such facts in 

mitigation of the penalties. Amended Set. Mot. at 5-6 ¶ 8. 

As to Citation No. 8055975, the parties agreed that “[a]s the continuous miner advances 

through the section, it moves further away from the source of ventilation, potentially resulting in 

an air volume reading lower than what is required by the ventilation plan, but at a variation in 

volume not readily discernable to a miner.” Jt. Ex. 2 at ¶ 7(h). With respect to Citation No. 

8055977, Hopedale provided that the location of the plugged sprays made it difficult for the 

miner operator to recognize that the sprays were plugged, and that dust was not observed 

“rolling” over the miner operator or shuttle car operators.7

 Amended Set. Mot. at 4 ¶ 7(c). As to 

Citation No. 8055976, “the Secretary agree[d] the section foreman was at the continuous miner 

as it cut through from E to F but was unaware the ventilation curtain had not been adjusted per 

the requirements of the plan prior to cutting through.” Id. at 3 ¶ 7(b). Similarly, Hopedale 

contended with respect to Citation No. 8055978, that the difference in 10 inches and 12 inches of 

mercury was not easily detected by the roof bolter operator. Id. at 5 ¶ 7(d). 

Although Hopedale agreed to accept the S&S designations for all four violations, it 

provided facts related to a lowering of gravity as to Citation Nos. 8055976 and 8055977, and the 

Secretary agreed to accept such facts in mitigation of the penalties. The parties agreed that the 

inspector’s contemporaneous notes reflected that the respirable dust parameters were in 

compliance at the start of the shift. Jt. Ex. 2 at ¶ 9(g). Hopedale provided results of Continuous 

Personal Dust Monitoring samples that were taken from the shuttle car operators on the section 

at the time the citations were issued that showed readings below the 1.5 mg standard. Amended 

Set. Mot. at 3 ¶¶ 7(b), (c). In addition, the Secretary stipulated that he was “aware of no evidence 

that respirable dust exposures experienced by other miners, including the roof bolters and the 

continuous miner operator, exceeded the standard.” Jt. Ex. 2 at ¶ 8(g). 

In concluding that the Secretary had failed to justify the lowering of negligence as to the 

four citations and the lowering of gravity for two of those citations, the Judge erred in applying 

an overly-stringent standard. The Judge erroneously considered the proposed penalties in 

settlement against the section 110(i) factors in a similar manner that would be required after a 

hearing. For instance, in the Judge’s April 17 settlement denial, the Judge noted that facts 

showing no violation of the dust standard with regard to the shuttle car operators did not support 

7

 “Rolling” of dust is an observation that can be used to evaluate whether the water sprays 

are effectively controlling dust. Jt. Ex. 1 at ¶ 9(f). 

42 FMSHRC Page 598
the reduction because “the continuous miner operator and the roof bolter do not have the same 

exposure as shuttle car operators.” Unpublished Order at 3 (April 17, 2019). In the portion of the 

June decision considering the merits of the citations after hearing, the Judge similarly reasoned 

that the likelihood of injury for Citation No. 8055976 should not be modified based upon the 

shuttle car operators’ samples because shuttle car operators do not receive the same or similar 

dust exposure as the continuous miner operators. 41 FMSHRC at 335. 

The Judge also concluded that the levels of negligence should not be reduced in 

settlement because a foreman had been in the area at the time that the citations were issued. 41 

FMSHRC at 328. The Judge appears to make a credibility determination that the foreman’s lack 

of knowledge was not credible, but there is no basis to make such a determination because there 

is no record to support such speculation.

Moreover, the Commission has considered the absence of a foreman as a factor 

supporting a reduced penalty in settlement. Ohio Cty Coal, 40 FMSHRC at 1098-99 & n.3. The 

Commission’s recognition that the absence of a foreman supports a penalty reduction in 

settlement does not necessarily lead to the conclusion that the presence of a foreman prohibits 

the reduction of penalty in settlement, particularly under the facts provided by Hopedale and the 

Secretary to support the penalties agreed to in settlement.

Similarly, the Judge erred by essentially requiring the parties to prove a particular level of 

negligence in the context of settlement, much as would be required after a hearing. Fact-finding 

against various legal standards of negligence and gravity is not appropriate during settlement 

review when no evidence has been adduced, although such fact-finding is required following a 

hearing on the merits. Rather, during a settlement review, a Judge need only review the proposed 

penalty reduction to see if it is “fair, reasonable, appropriate under the facts, and protects the 

public interest.” AmCoal I, 38 FMSHRC at 1976. 

Furthermore, the Judge made a fundamental error in the application of AmCoal II in 

stating that the citations would retain their enforcement value only if Hopedale had accepted 

them as they had been written at issuance. 41 FMSHRC at 327. Under the Judge’s faulty 

reasoning, any proposed penalty reductions modified in accordance with Part 100 during 

settlement would have no enforcement value. 

Giving “due consideration to the entirety of the proposed settlement package, including 

both its monetary and nonmonetary aspects,” we conclude that the non-monetary aspect of the 

proposed settlement, that is, the enforcement value of the citations, is significant. AmCoal II, 40 

FMSHRC at 989 (citations omitted). Hopedale agreed to accept the fact of violation as to all four 

citations, that all four violations were S&S, and that all four violations were a result of the 

operator’s negligence. The important nature and quality of the violations has been preserved for 

enforcement purposes. 

As the Commission recognized in AmCoal I, “under the Mine Act, violations accepted by 

an operator in a settlement agreement may be considered as part of the operator’s history of 

violations in the assessment of future civil penalty assessments.” 38 FMSHRC at 1984 (citation 

42 FMSHRC Page 599
omitted). Thus, the four citations have enforcement value in that they may be considered as part 

of Hopedale’s history of violations in the calculation of civil penalties for future violations. 

In such future assessments, Hopedale may not benefit from the reduced penalties it paid 

in settlement. The Commission has explained that the amount of penalties assessed in the context 

of a settlement may not be used to arrive at penalties assessed in a decision on the merits after a 

hearing. Newmont USA, Ltd., 37 FMSHRC 499, 506 (Mar. 2015).8

 

The Judge also erred to the extent she concluded that the settlement should not be 

approved because of the operator’s history of violations. In the March 25 denial, the Judge noted 

in part that the operator had a “significant history of ignoring the ventilation requirements.” Mot. 

for Recon., Ex. B. The Judge later based the April 17 rejection of the settlement in part on “the 

operator’s significant history of similar violations for failure to adhere to ventilation plan 

requirements.” Unpublished Order at 2 (Apr. 17, 2019). The Judge observed that the parties had 

failed to address that history and attached the operator’s two-year history of violations to the 

order. Id. at 2-3. The Judge later incorporated the earlier decisions in the June 24 decision (41 

FMSHRC at 324), but did not appear to address the operator’s history of violations in the 

Judge’s June evaluation of the settlement.9 

As previously noted, primary authority to approve settlements of contested proposed 

assessments is vested by Congress in the Commission. 30 U.S.C. § 820(k); AmCoal I, 38 

FMSHRC at 1976. While such authority may be delegated to the Judges, the Commissioners 

retain such full authority to find a proposed settlement is otherwise fair, reasonable, appropriate 

under the facts, and protects the public interest. 

Contrary to the Judge’s determination, the facts provided by the parties in regard to the 

operator’s violation history supported the penalty reduction agreed to in settlement. The parties 

submitted facts that: (1) in the two years prior to the instant citations, the operator was cited for 

violations of 30 C.F.R. § 75.370(a)(1) on 10 occasions, seven of which were not classified as 

S&S; and (2) during calendar year 2018, only four 30 C.F.R. § 75.370(a)(1) violations were 

issued prior to the subject citations. Jt. Ex. 2 at ¶ 4. The parties also provided information 

regarding how often the Hopedale Mine had been cited for the violations that were cited in the 

subject citations during the prior two years. They stipulated: (1) Citation No. 8055975 - only one 

previous violation (Aug. 28, 2018); (2) Citation No. 8055976 – no previous violations; (3) 

Citation No. 8055977 – two previous violations (on April 24, 2017 and on Dec. 18, 2017); and 

(4) Citation No. 8055978 - one previous violation (Nov. 13, 2017). Id. at 2-7 at ¶¶ 7(a), 8(a), 

9(a), 10(a). These four citations, and this compliance history, are wholly inconsistent with our 

8

 Moreover, since all four violations are S&S, they could be relevant for pattern of 

violations consideration. Brody Mining, LLC, 36 FMSHRC 2027, 2038 (Aug. 2014) (holding 

that section 104(e) of the Mine Act encompasses S&S violations including non-final orders). 

9

 Rather, it appears that the Judge considered the operator’s history of violations in 

reviewing the merits of Citation No. 8055975. 41 FMSHRC at 333. We have vacated that portion 

of the Judge’s decision reaching the merits of the citations. 

42 FMSHRC Page 600
dissenting colleagues’ characterization of the operator as “cavalier – almost indifferent – to the 

need to comply with these important safety standards.” Slip op. at 15. 

In sum, the Judge misapplied our precedents governing settlements. The Judge 

erroneously reviewed the facts submitted by the parties to support settlement against the more 

stringent standard that applies after a hearing on the merits. The Judge further failed to reconcile 

the Judge’s earlier holding that the operator’s history of violations supported rejection of the 

settlement with additional facts submitted by the parties that supported the settlement. Finally, 

the Judge erred by concluding that the violations lacked enforcement value because they had not 

been accepted as written.10 41 FMSHRC at 327. 

The Commission and its Judges may not look behind the Secretary’s decision to settle or 

behind the decision to choose a particular amount for settlement. See AmCoal I, 38 FMSHRC at 

1980 (“The Commission does not review the Secretary’s decision to settle. Rather, the 

Commission reviews the proposed reduction of civil penalties in settlements.”) (emphasis in 

original); Tazco, Inc., 3 FMSHRC 1895, 1897 (Aug. 1981) (noting that the Commission’s and its 

Judges powers are limited by the Mine Act). Instead, we review the proposed penalty reductions 

in settlement with the facts submitted by the parties against the AmCoal I standard.

Upon reviewing the facts submitted by the parties in the amended motion to approve 

settlement and amended joint stipulations, we conclude that the proposed reduction of penalties 

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

parties presented sufficient facts to support the reduced penalties agreed to in settlement, we 

conclude that remand is unnecessary. See, e.g., Solar Sources, 41 FMSHRC at 605.11

Our dissenting colleagues cite, with apparent approval, that 99.96% of all settlement 

agreements were granted in the years 2011 to 2016 – that is, about 1 in approximately every 

2,200 motions. Slip op. at 16 n.2. Nevertheless, their dissent would make one think that the 

exercise of our discretion to grant the settlement places the settlement process on the verge of 

collapse. 

In fact, however, the rarity of disapproval suggests that the defects of a properly-rejected 

settlement should be self-evident, and easily explained. The Judge’s role is as an adjudicator not 

as an investigator or as a prosecutor. The rejection in this case was contrary to stipulated facts, 

10 No case would ever be settled on such a literal application of “as written” because 

accepting all of the Secretary’s findings and conclusions would render a reduction in the penalty 

untenable. Agreeing in toto to an opponent’s case in chief is not a settlement but a capitulation. 

 11 Commissioner Young notes that, in contrast to our decision in American Aggregates of 

Michigan, Inc., Docket No. LAKE 2018-0340, issued on the same day as our decision in this 

case, the Judge here did not fail to consider entirely an evidentiary argument made by the 

operator, which arguably could have been the subject of further questioning on remand. The 

settlement in this case was a commonplace proposal to reduce negligence and gravity, the usual 

means through which the parties compromise similarly unremarkable disputes, and remand in 

this case would be unproductive. 

42 FMSHRC Page 601
mischaracterized the operator’s compliance history, and failed to give weight to the considerable 

non-monetary value preserved by the settlement. The rejection therefore does not conform to the 

standards we have established for the evaluation of settlements, consistent with our precedents 

and the directives of Congress. 

III. 

Conclusion 

 For the reasons set forth above, we reverse the Judge’s denial of the motion seeking 

interlocutory review, and vacate that portion of the Judge’s decision reaching the merits of the 

citations. We reverse the Judge’s denial of the settlement motions and approve the settlement. 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 

42 FMSHRC Page 602
Commissioners Jordan and Traynor concurring in part and dissenting in part: 

I. 

Introduction 

This case involves serious violations of ventilation regulations that could lead to dust 

exposure. The inspector arrived at the mine and saw that at every phase of mining there was 

something wrong. When the four violations are reviewed together, it appears that the operator 

was cavalier – almost indifferent – to the need to comply with these important safety standards. 

Almost the entire mining cycle was affected – the curtain, the continuous miner, the roof bolter, 

the air flow. 

The original penalty assessment was $18,093. The proposed settlement amount was 

$3,339. As the Judge noted, this was a major reduction of almost 81.5%. 

It is significant that the foreman was present on the section when these violations 

occurred. It was his job to make sure that the curtain was moved properly, and that the water 

sprays on the continuous miner were properly maintained. It was certainly not mitigating to 

allege that the foreman simply was not aware of some of these violations. A “should have 

known” analysis is reasonable here, and not inconsistent with our caselaw examining the section 

110(i) negligence criterion. And the Judge’s application of that analysis is not outside the 

boundaries of her wide discretion. 41 FMSHRC 322, 328 (Jun. 2019) (ALJ). 

The Judge concluded that the proposed penalty amount was not an adequate deterrent. 

She reviewed the facts provided by the parties and concluded that they had not persuaded her to 

grant the motion. 

 This is not an abuse of discretion – one must keep in mind that this is an extremely 

deferential standard. The majority’s focus on deciding for themselves whether there is enough 

there to approve the settlement is far afield from our precedents emphasizing that our Judges 

have wide discretion that may not be reversed by a Commission that simply wishes to substitute 

its own preferred outcome. This is not consistent with the deference owed a Judge’s exercise of 

discretionary judgment. 

In short, the Judge’s denial of the motion is supported by the factual record and is the 

product of a reasonable determination, a determination made within the boundaries of her 

discretion. Thus, her denial should be affirmed. 

The majority decision ends meaningful substantive review of agreements between the 

government and mine operators to reduce the penalties the government originally proposes in 

connection with mine safety violations, enabling nearly frictionless and potentially unwarranted 

reduction of such penalties. The Commission has in multiple decisions recognized that this is not 

what Congress intended. Our precedents recognize that under the statutory enforcement 

framework preceding the 1977 Mine Act,1

 the government’s compromise of proposed penalties 

without oversight or transparency had seriously undermined safety enforcement. And that 

1

 The Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976). 

42 FMSHRC Page 603
Congress responded in the Mine Act of 1977 by requiring the Commission to review and, only if 

warranted, approve the Secretary’s compromise of a proposed penalty in an agreement to settle 

an operator’s contest of a citation. Yet today, the majority, substituting its view of the case for 

that of the Judge, finds that she erred by undertaking a meaningful evaluation of the parties’ 

contention that the penalty reduction is justified. 

The Commission and its Judges have for decades fulfilled their settlement review 

responsibility by requiring the Secretary to publicly demonstrate that the penalty reductions are 

warranted by addressing in his settlement motions, among other things, the amount of the 

Secretary’s original penalty proposal and those facts justifying Commission approval of a lesser 

penalty. Our Judges have then exercised wide discretion, referencing the section 110(i) penalty 

criteria and other factors, to determine whether the compromising parties had provided in their 

motion a full set of accurate facts and information sufficient to publicly demonstrate that the 

reduced penalty is “fair, reasonable, appropriate under the facts, and protects the public interest.” 

American Coal Co., 38 FMSHRC 1972, 1976 (Aug. 2016) (“AmCoal I”). See also 40 FMSHRC 

983, 984 (Aug. 2018) (“AmCoal II”). 

The majority’s decision in this case cuts the heart out of unanimous decisions in the 

American Coal case and in other prior precedents governing transparent settlement approval, 

making major changes to this area of law.2

 First, the majority strips our Judges of the power and 

responsibility to look beyond the self-serving presentation of select facts and legal conclusions in 

the parties’ settlement motion to determine in their own discretion whether the alleged facts and 

proffered conclusions, examined in light of the record as a whole, demonstrate the proposed 

penalty reductions are actually “fair, reasonable, appropriate under the facts, and protects the 

public interest.” AmCoal I, 38 FMSHRC at 1976. In a sharp departure from settled precedent, the 

majority prohibits our Judges from assessing whether a penalty reduction the parties attempt to 

justify by reference to agreed upon modifications to the contested citations is warranted by 

application of section 110(i) and other factors we have recognized as relevant to our penalty 

assessment role.3

2 The majority provides no policy reason or explanation for making such radical breaks 

with our precedent addressing our obligation to review penalty reductions, such as our decisions 

in the American Coal Co. case and in Black Beauty Coal Co., 34 FMSHRC 1856, 1870 (Aug. 

2012) (requiring the Secretary to provide such factual support to demonstrate the applicability of 

the penalty criteria as they relate to the penalties contained in the settlement proposal presented 

to her for review). This is an especially glaring omission in light of the fact our judges applying 

this precedent are able to approve 99.96% of settlement motions submitted for their review. See 

AmCoal I, 38 FMSHRC at 1977 n.7 (noting that in a five-year period from approximately 2011 

to 2016, Commission Judges approved 38,501 settlements and denied only 17). 

3

 Factors we have recognized that a Judge may rely upon to determine in his or her 

discretion whether the parties’ motion demonstrates a penalty reduction is “warranted” include, 

for example: the future enforcement value of accepting violations as written, AmCoal II, 40 

FMSHRC at 989; the possibility of criminal penalties, Aracoma Coal Co., 32 FMSHRC 1639, 

 (continued...) 

42 FMSHRC Page 604
Second, though they do so only implicitly, the majority reviews the Judge’s decision on 

each of the AmCoal elements – fairness, reasonableness, appropriateness to the facts, and the 

public interest – under a de novo rather than an abuse of discretion standard. This break from 

precedent undertakes a nearly total elimination of our Judges’ discretion to determine whether a 

penalty reduction is warranted. And does so in a case where no arguments against such a 

significant change were litigated, the parties’ positions were fully aligned and no party before the 

Commission presented argument in opposition. In this non-adversarial proceeding, both sides 

sought the same outcome and the majority delivered it, along with the apparent reversal of the 

foundational precedents applying section 110(k) of the Mine Act, 30 U.S.C. § 820(k).4

 While we concur that the Judge erred in vacating the citations, we disagree with the 

majority’s decision to usurp the Judge’s discretion by granting the motion to approve settlement.5

We conclude that the Judge’s rationale for rejecting the parties’ proposed settlement is consistent 

with our well settled and deferential standard of review. Accordingly, we would remand this 

proceeding to the Judge, with instructions to the parties to reconsider their settlement agreement 

and to file a new motion. If the parties do not agree to settle, and they continue to stipulate to the 

violations, we would have the Judge assess a penalty (which could necessitate a hearing). 

 Below, we recount the origin and development of the legal standard our Judges apply for 

settlement approval decisions and our own standard for review of the same. Then, we highlight 

how much the majority’s decision departs from these precedents, before concluding with an 

application of those precedents to the facts of this case. 

 

3

 (...continued) 

1641 (Dec. 2010); settlement provisions requiring that the operator implement personnel changes 

or training improvements, AmCoal I, 38 FMSHRC at 1982; and deterrence, Black Beauty, 34 

FMSHRC at 1864-65. 

4 Commissioner Traynor separately observes that in the AmCoal cases, representatives of 

the regulated community participated as intervenors and a member of Congress as amicus curiae

in opposition to the Secretary and another operator’s arguments in favor of curtailing the 

Commission’s settlement review authority. In similar circumstances, appellate courts on 

occasion take steps to ensure adversarial presentation. See, e.g., Beckles v. United States, 137 S. 

Ct. 886, 892 (2017) (“Because the United States, as respondent, agrees with petitioner that the 

Guidelines are subject to vagueness challenges, the Court appointed [an attorney] as amicus 

curiae to argue the contrary position.”). Unfortunately, the Commission in this case did not 

receive arguments on “the contrary position.” And neither party will appeal the Commission’s 

approval of their settlement motion. Thus, the departures from precedent in this case are fully 

insulated from appellate review. 

5

 We concur with the majority’s conclusion that the Judge abused her discretion when she 

convened a hearing without first ruling on the Secretary’s pending motion for interlocutory 

review that was filed pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76. 

However, as we are now providing appellate review, this issue is now moot. 

42 FMSHRC Page 605
II. 

Discussion 

A. The Commission and its Judges’ Settlement Review Obligation 

Once the penalties which the government proposes for mine safety violations have been 

contested before the Commission, the Mine Act does not permit the government and mine 

operators to settle or compromise such penalties unless and until they obtain Commission 

approval. Section 110(k) of the Act provides: 

No proposed penalty which has been contested before the 

Commission under section 815(a) of this title shall be 

compromised, mitigated, or settled except with the approval of the 

Commission. No penalty assessment which has become a final 

order of the Commission shall be compromised, mitigated, or 

settled except with the approval of the court. 

30 U.S.C. § 820(k). Some of the earliest cases in which the Commission exercised its settlement 

approval authority under section 110(k) recognized that “[t]he judges’ front line oversight of the 

settlement process is an adjudicative function that necessarily involves wide discretion.” Knox 

Cty. Stone Co., 3 FMSHRC 2478, 2479 (1981) (emphasis added). These early cases emphasized 

the degree to which we must defer to the reasonable exercise of our Judges’ discretion to accept 

or reject proposed penalty settlements. See, e.g., Pontiki Coal Corp., 8 FMSHRC 668, 675 (May 

1986) (“the Commission has stated repeatedly, if a judge disagrees with a stipulated penalty 

amount or believes that any questionable matters bearing on the violation or appropriate penalty 

amount need to be clarified through trial, he is free to reject the settlement and direct the matter 

for hearing”). 

Our precedents have continued to hold that our Judges’ wide discretion is a fundamental 

aspect of our settlement review under section 110(k), observing more recently: 

[The] statutory language [in the Mine Act] contains no explicit 

restrictions on what a Commission Judge may consider when 

reviewing a settlement proposal. Thus, Congress provided a broad 

mandate to the Commission (and its Judges), charging it with 

reviewing and approving all settlements of penalty cases pending 

before it and imposing no explicit limits on what should be 

considered in this review. 

Black Beauty Coal Co., 34 FMSHRC at 1865 (emphasis added). 

In Black Beauty, the Commission affirmed that section 110(k) and the Mine Act’s 

legislative history make clear that Congress requires the Commission to scrutinize the settlement 

of contested penalties “[i]n order to ensure penalties serve as an effective enforcement tool, 

prevent abuse, and preserve the public interest.” Id. at 1862 (citations omitted). In order to carry 

out that function, the Commission in Black Beauty expressly rejected the Secretary’s contention 

that “it has no authority to review the underlying modification of the citation.” Id. at 1860. 

Observing that under section 110(i) of the Act, only the Commission has authority to “assess all 

42 FMSHRC Page 606
civil penalties provided in this Act,” id. at 1862, the Commission held that “if a Judge’s approval 

or rejection of a settlement is ‘fully supported’ by the record, consistent with the [section 110(i)] 

statutory penalty criteria, and not otherwise improper, it will not be disturbed, but . . . abuses of 

discretion or plain errors are subject to reversal.” Id. at 1864.6

In addition to holding that a Judge must review the underlying modification of a citation 

offered as justification for a penalty reduction to ensure, inter alia, that it is consistent with the 

110(i) penalty criteria, the Commission in Black Beauty was also very clear that a Judge had 

wide discretion to require information from the parties demonstrating the same, holding that its 

Judges are “clearly authorized by the Mine Act to review a proposed settlement of a contested 

penalty and to require the parties to submit the factual support necessary for that review.” Id. at 

1860. Thus, the Commission in Black Beauty concluded, “[t]he Judge did not abuse her 

discretion in requiring the Secretary to provide further factual support to demonstrate the penalty 

criteria as they relate to the subject penalties [and] . . . [o]n remand, the Judge shall take such 

further evidence as she reasonably requires to consider the six statutory criteria [in section 

110(i)] in reviewing the motions for settlement.” Id. at 1864, 1869 (emphasis added).7

In carrying out the Congressional mandate to oversee and ensure transparent justification 

of penalty settlements, the Commission and its Judges regularly request that the parties provide 

additional information – e.g., explanations as to how the facts in the record, in light of applicable 

caselaw, justify the penalty reduction proposed in the motion. Often, depending on how the 

parties attempt to justify their settlement, such information pertains to the statutory criteria for 

assessment of civil penalties set forth in section 110(i). See, e.g., Knox County Stone Co., 3 

FMSHRC at 2480 (stating that “the judge issued to the parties a notice of hearing and pretrial 

order requiring in two phased responses extensive information relevant to the six penalty criteria 

specified in section 110(i) of the Mine Act”). 

After issuing Black Beauty, the Commission in subsequent cases faithfully applied its 

ruling to require Judges to determine that information provided by the parties in light of the 

record as a whole justifies the proposed reduction in penalty in accordance with the section 

110(i) penalty criteria. See Big Ridge, Inc., 38 FMSHRC 1348, 1349 (June 2016) (“In light of the 

factual justifications provided by the parties, we determine that the penalty is appropriate under 

the criteria set forth in section 110(i) of the Mine Act . . . [and] further find that the terms of the 

settlement are supported by the record, in accordance with Commission case law.”); see also 

UMWA, on behalf of Franks v. Emerald Coal Res., 38 FMSHRC 935, 938 (May 2016) (finding 

6

 The six section 110(i) statutory criteria by which all penalties must be assessed are “the 

operator’s history of previous violations, the appropriateness of such penalty to the size of the 

business of the operator charged, whether the operator was negligent, the effect on the operator’s 

ability to continue in business, the gravity of the violation, and the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of a violation.” 

30 U.S.C. § 820(i). 

 

7

 Though the majority decision is directly contrary to this, a central and unanimous 

holding in Black Beauty, the majority does not express intent to overrule it either in whole or in 

part, or identify subsequent authority that does so. 

42 FMSHRC Page 607
that the information provided demonstrates that a reduction in penalty is appropriate under the 

criteria in section 110(i)). 

In 2016, the Secretary chose American Coal “to be the ‘test case’ for advancing his 

position that the Commission’s authority to review settlements of contested penalties under 

Section 110(k)... is much more limited than that described in Black Beauty Coal Co.” AmCoal I, 

38 FMSHRC at 1972-73. We issued two unanimous decisions in the American Coal Co. case 

that comprehensively addressed the substance of our Judges’ responsibility to obtain sufficient 

information to decide whether a proposed penalty reduction is warranted and to ensure that the 

penalty reduction is transparent. To prompt the test case, the Secretary attached to its motion to 

approve settlement in AmCoal I (and subsequently in other cases) boilerplate referencing a 

unilateral “professional judgment” and a desire to conserve “resources that the Secretary would 

need to expend in going through a trial” in lieu of the substantive factual support traditionally 

provided to justify a penalty reduction.8 Id. at 1973-74. The Secretary took the position that 

section 110(k) review is perfunctory and limited to “whether the proposed settlement (1) is 

legally sound, (2) is clear, (3) resolves the claims in the penalty petition, and (4) is not tainted by 

improper collusion or corruption.” Id. at 1983. The operator agreed. 

The Commission rejected the Secretary and operator’s position, concluding adoption of 

their proposed “standard would effectively render section 110(k) meaningless,” id. at 1983, and 

“is completely inconsistent with the need for transparency that Section 110(k) was enacted to 

address.” Id. at 1984. The Commission, in a unanimous opinion, elaborated on this basis for our 

decision by reciting key excerpts of the legislative history of section 110(k), as it did in its Black 

Beauty decision, including Congress’s finding that under the predecessor to the Mine Act, “to a 

great extent the compromising of assessed penalties [did] not come under public scrutiny” and 

that “even after a petition for civil penalty had been filed, settlement efforts between the operator 

and Solicitor [were] not on the record, and a settlement need not be approved by the 

Administrative Law Judge.” Id. at 1975-76 (quoting Legis. Hist. at 632-33). 

The Commission in AmCoal I reaffirmed Congress’s clear explanation that “‘[b]y 

imposing [the] requirements’ of section 110(k), it ‘intend[ed] to assure that the abuses involved 

in the unwarranted lowering of penalties as a result of off-the-record negotiations are avoided.’” 

Id. at 1976. (emphasis added in AmCoal I). It also affirmed “the purpose of civil penalties, [that 

is,] convincing operators to comply with the Act’s requirements, is best served when the process 

by which these penalties are assessed and collected is carried out in public,” where miners, 

Congress, and other interested parties, “can fully observe the process.” Id. 

The Congressional transparency mandate has always meant the Judge’s decision must 

include a substantive explanation as to how the penalty reduction submitted for approval is (or is 

8 In recognition of the legislative history of the Mine Act, we have held that “for the 

purpose of encouraging operator compliance with the Act's requirements, the need to save 

litigation and collection expenses should play no role in determining settlement amounts.” Black 

Beauty, 34 FMSHRC at 1866 (quoting S. Rep. No. 95-181, at 41-45 (1977), reprinted in Senate 

Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 629-33 (1978) (“Legis. Hist.”).

42 FMSHRC Page 608
not) warranted by the facts and legal contentions the parties claim as support for their motion. 

See, e.g., Co-Op Mining Co., 2 FMSHRC 3475, 3475 (Dec. 1980) (“[S]ettlement should not have 

been approved [where t]he parties’ stipulation shows that the alleged violation did not occur.”); 

Madison Branch Mgmt., 17 FMSHRC 859, 864 (Jun. 1995) (“[T]he Commission will not disturb 

a Judge’s approval or rejection of a settlement if it is supported by the record, is consistent with 

the six statutory criteria specified in section 110(i) of the Act for the assessment of civil 

penalties, and is not otherwise improper.”). Referencing its holding in Black Beauty, the 

Commission in AmCoal I held “[t]he requirements to provide factual support in the settlement 

proposal and for the [J]udge’s decision approving settlement to be supported by the record have 

been largely unchanged since the inception of the Commission’s procedural rules in 1979” and 

“standards for such factual support may be found in section 110(i).” AmCoal I, 38 FMSHRC at 

1981. Indeed, the Commission expressly rejected the Secretary’s argument that “it is 

inappropriate for a Judge to consider section 110(i) factors when considering whether to approve 

a proposed penalty settlement” and reaffirmed that the reach of section 110(i) “clearly includes 

contested penalties that are the subject of a settlement agreement.” Id. at 1981-82 (internal 

quotations omitted). 

In AmCoal I, we affirmed the centrality of the section 110(i) factors to all penalty 

assessments, whether they result from contest or compromise. In recognition of our Judges’ wide 

discretion, including our precedents requiring them to consider certain factors outside of section 

110(i) penalty criteria when presented in a motion to approve settlement, Judges are not required 

to “make factual findings with respect to each of the section 110(i) factors as a Judge would in 

the assessment of a penalty after hearing. Rather, the Judge considers such information in the 

evaluation of whether the proposed reduction of penalties is fair, reasonable, appropriate under 

the facts, and protects the public interest.” Id. at 1982. 

We affirmed the Judge’s rejection of the settlement agreement in AmCoal I and remanded 

the case. The Secretary and operator filed a second settlement motion, which was also rejected 

by the same Judge. We took review of an interlocutory appeal from that decision in AmCoal II. 

The resulting unanimous decision fully affirmed the above described holdings in AmCoal I and 

Black Beauty, including the requirement that “the parties provide mutually acceptable facts that 

demonstrate the proposed penalty reduction is fair, reasonable, appropriate under the facts, and 

protects the public interest.” AmCoal II, 40 FMSHRC at 991. The Commission also held that a 

full explanation as to how the Judge concluded that the penalty reduction was warranted serves 

to protect the “public interest in evaluating whether a settlement should be approved.” Id. at 987-

88. The Judge’s decision was vacated for a variety of errors, inter alia, a mistaken interpretation 

of our decision in AmCoal I as prohibiting consideration of any factors outside of section 110(i), 

a failure to consider nonmonetary aspects of the settlement, etc. But, importantly, it was 

remanded back to him for reconsideration of the settlement motion. 

Commission decisions issued contemporaneous with and subsequent to AmCoal II have 

reinforced our Judges’ active role in verifying, noting inconsistencies and filling gaps in the 

factual representations and legal contentions parties make to justify settlement motions. For 

example, in The Ohio County Coal Company, a Judge denied a motion claiming a penalty 

reduction was warranted because the section 110(i) negligence level should be reduced from 

“moderate” to “low.” 40 FMSHRC 1096 (Aug. 2018). The parties’ motion sought to justify the 

reduction by explaining that a foreman was not present at the time of the violation, pointing out 

42 FMSHRC Page 609
that the foreman’s absence was recorded in the inspector’s contemporaneous notes. The Judge 

denied the settlement for the sole reason that he mistakenly perceived an inconsistency in the 

facts offered to support the motion that was not adequately explained. The Commission reversed, 

acknowledging that such inconsistencies are certainly germane to the Judge’s analysis, but 

explaining at length how the Judge misconstrued the facts and concluding in this case the 

Commission “do[es] not discern an internal inconsistency in the settlement terms that 

undermines the parties’ agreement.” Id. at 1099. 

Recently, the Commission emphatically reaffirmed the authority of our Judges to request 

additional facts when presented with a settlement motion. In Solar Sources Mining, LLC, the 

Commission stated that “a Judge who properly determines that a settlement motion lacks 

sufficient information may permissibly request further facts from the parties” and that “the Judge 

may identify gaps in the parties' explanations or specific information he may need to review and 

approve the settlement.” 41 FMSHRC 594, 602-03 (Sept. 2019) (emphasis added).9

In sum, we have consistently protected our Judges’ exercise of wide discretion in 

evaluating motions for settlement in light of the record as a whole to determine whether the 

movants have demonstrated that proposed modifications to the underlying citation are consistent 

with our caselaw applying the penalty criteria in section 110(i) and the AmCoal standard. And 

that discretion only exists to the extent Commission majorities have deferred to its exercise 

rather than reversing and substituting their own view as to whether the parties’ factual 

presentation and legal contentions justify the penalty reduction. 

B. The Majority Decision is Contrary to Our Precedents. 

The majority decision instructs our Judges to ignore whole sections of the record before 

them when considering whether a settlement motion contains complete and accurate facts and 

legal contentions sufficient to transparently demonstrate, as the public interest requires, that the 

penalty reduction is “fair, reasonable and appropriate under the facts.” AmCoal I, 38 FMSHRC at 

1982. Judges may no longer probe gaps or inconsistencies in the explanation offered in support 

of a settlement motion, yet must now somehow determine whether a penalty reduction is 

“appropriate under the facts” by relying solely and uncritically on the parties’ joint presentation 

of facts and legal contentions. The decision also eliminates abuse of discretion review in all but 

name only. It removes our Judges’ discretion to determine whether the parties have demonstrated 

9 Additionally, we find it notable that in Solar Sources, the Commission examined the 

totality of the facts as alleged by the parties and found, sua sponte, that the parties’ proposed 

settlement was justified in part because two of the citations at issue may have been duplicative. 

41 FMSHRC at 594, 603-04 (Sept. 2019). However, in the case at hand, the majority criticizes 

the Judge for examining the totality of the facts at issue and considering, sua sponte, reasons why 

the parties’ proposed settlement may not be justified under our caselaw. Slip op. at 8-13. Here, of 

course, the Judge found that the proposed reduction in negligence was not appropriate because 

the presence of a foreman in this section of the mine, at the time of the issuance of these four 

citations, suggests that an agent of the operator either knew or should have known of the 

violative conditions, which is inconsistent with the “low” negligence the parties agreed to in the 

settlement motion. 41 FMSHRC at 338.

42 FMSHRC Page 610
that a proposed penalty reduction is warranted, by reviewing de novo our Judges’ application of a 

multi-factored standard that has long been committed to their wide discretion. 

1. Judges must continue to examine whether the proposed penalty reduction is 

appropriate to the facts of the case and should not be prohibited from doing so. 

Our Judges are not required to blind themselves to the full record on their docket or 

refrain from reasonable legal analysis when evaluating factual and legal claims in the 

compromising parties’ motion that a penalty reduction is “fair, reasonable and appropriate under 

the facts” by reference to the section 110(i) factors. Rather, they start with the factual allegations 

in the citation attached to the penalty petition initiating the case as well as the Secretary’s initial 

penalty proposal grounded on those facts. They then look to the parties to provide additional 

facts and explanations in the settlement motion that could demonstrate a penalty reduction is 

warranted, often pertaining to the parties’ agreement to modify the underlying citation by 

tinkering with the section 110(i) factors in light of subsequently discovered facts, contextual 

information or legal uncertainties. The Judge is not bound to blindly accept legal contentions the 

parties make in an effort to demonstrate a penalty reduction is supported by the record viewed in 

light of the section 110(i) factors. 

Our precedents consistently require submission of facts in support of settlement motions. 

This is not so that the Judge might make formal ‘findings of fact’ to establish or disprove the 

violations alleged or any characteristic of such violations. Rather, such facts are essential to any 

substantive evaluation of the parties’ claim that their penalty compromise is warranted under the 

AmCoal standard.10 And to satisfy the public interest in transparency, a decision to reduce a 

penalty must include a written explanation as to how such facts demonstrate the penalty 

reduction is warranted. While no party is required to ‘prove’ any facts included in the motion to 

justify the settlement, the Judge does need to meaningfully evaluate (not blindly accept) any 

claim by the parties that the penalty reduction is justified by modifications to the underlying 

citation – e.g. deleting an S&S designation, or ‘lowering’ one of the section 110(i) criteria, such 

as negligence or gravity. And that judicial evaluation, summarized in the Judge’s written 

published decision, is what “protects the public interest in evaluating whether a settlement should 

be approved.” AmCoal II, 40 FMSHRC at 984.11

A Judge must actually evaluate – probe for gaps and inconsistencies and not blindly 

accept – the facts and legal contentions in any settlement motion asserting a penalty reduction is 

warranted. A part of that evaluation requires a determination of what the parties claim in their 

10 To the extent the majority purports to prohibit our judges from requesting information 

that goes beyond the factual and legal contentions in the parties’ motion, their holding precludes 

the proper exercise of discretion to require factual support demonstrating the proposed penalty 

reduction is warranted by reference to the section 110(i) penalty factors, in addition to other 

relevant criteria, which is directly contrary to our unanimous precedential decision in AmCoal I. 

11 A Judge’s written evaluation of the parties’ factual and legal contentions as to why a 

penalty reduction is supported by modifications to an underlying citation does not serve the 

public interest if it uncritically overlooks gaps and inconsistencies with the full record or our 

case law applying the section 110(i) factors. 

42 FMSHRC Page 611
motion, i.e., that the penalty reduction is justified because of modifications to the underlying 

citation, is reasonable and appropriate under all of the facts alleged and provided in the motion, 

and those facts alleged in the original pleadings. Pursuant to this holding, our Judges often 

request additional factual support for such modifications, or a full explanation of why they were 

agreed upon – e.g., recognition of some uncertainty as to the applicability of a certain point of 

law, reconsideration of the strength of the factual allegations made in the pleadings in light of 

subsequently discovered information or explanation, or, “a description of an issue on which the 

parties have agreed to disagree.” AmCoal II, 40 FMSHRC at 991.12

The responsibility to ensure a penalty reduction is reasonable or appropriate under the 

facts cannot be met by a Judge compelled to ignore gaps in the explanation, including 

unexplained inconsistencies between the Secretary’s version of the alleged facts set forth in the 

case pleadings and a revised version of facts the parties agree to include in their motion. In 

settlement review, such gaps and inconsistencies in the factual presentation do not require a full 

hearing for conclusive resolution, do not implicate the need for testimony to make credibility 

12 Like the majority, we do not consider the Judge’s issuance of a subpoena, scheduling a 

hearing prior to a decision on the parties’ motion for interlocutory review, or vacature of the 

citations. However, the majority claims our Judges may not probe the veracity, consistency and 

completeness of the facts and legal claims the parties include in their motion to justify approval 

of their motion, relying in part on the concept of “party presentation” discussed in United States 

v. Sineneng-Smith, 140 S.Ct. 1575 (2020). Slip op. at 5-6. But the Supreme Court in that decision 

expressly observed that the concept of “party presentation” – the idea that Judges should 

maintain a passive role allowing the parties to develop the factual record and arguments – is a 

feature of an “adversarial system of adjudication.” Id. at 1579. Obviously, proceedings under 

section 110(k) to consider the parties’ jointly proposed penalty reduction are non-adversarial – 

even cooperative. Nothing in Sineneng-Smith supplies any coherent rationale for contravening 

our precedents and the Act’s legislative history to curb our Judges’ responsibility to ensure that 

penalty reductions in compromises struck by cooperating parties are both warranted and 

transparent.

Because Sineneng-Smith does not address the unique administrative processes under 

section 110(k) of the Mine Act, in which Commission Judges review jointly proposed settlement 

motions to determine if the parties’ penalty compromise is warranted, it does not control. It is not 

even persuasive, given the uniquely non-adversarial nature of proceedings under section 110(k). 

Claiming otherwise, our colleagues maintain an obvious fiction that section 110(k) proceedings 

are indistinct from penalty contests, discrimination proceedings and the other types of cases in 

our “adversarial system of adjudication” under the Mine Act. Slip op. 6. Accepting this claim 

would require that we ignore that in section 110(k) settlement review cases the interests of the 

parties before our Judges are totally aligned, and neither engages the other in argument or 

examination or any of the other tools used in an adversarial system to bring forward truth. Most 

significantly, neither party rebuts the factual claims and arguments that are jointly presented to 

our Judges for approval of a penalty reduction in section 110(k) proceedings. They are 

indisputably non-adversarial and thus Sineneng-Smith – the only authority the majority cites as 

justification for its departure from our precedents – is unquestionably irrelevant to interpretation 

of section 110(k).

42 FMSHRC Page 612
determinations, and do not require a final determination of the merits of the citations. Instead, 

they simply inform the Judge’s decision – left to her wide discretion – as to whether the parties 

have demonstrated that the penalty compromise is fair, reasonable and “appropriate to the facts.” 

And they form the basis of the explanation for approving or denying the penalty reduction that 

the Judge must include in a written decision. A Judge may request from the parties additional 

information explaining or providing context to omissions or inconsistencies. Or she might decide 

that despite gaps or inconsistencies in an explanation regarding one criterion, the proposed 

reduction is warranted by comparatively complete and consistent factual support relating to 

another of the section 110(i) factors, or factors outside of those in section 110(i) we have held 

justify penalty reduction. This is what is meant by wide discretion and is how our Judges have 

been successfully doing this job for many years. 

2. Our Judges must continue to have meaningful discretion to perform “front line 

oversight” of settlement agreements 

The Commission has long held that settlements are committed to the sound discretion of 

the Commission and its Judges, and that Judges are not “bound to endorse all proposed 

settlements.” Madison Branch Mgmt., 17 FMSHRC at 864 (quoting Knox County Stone, 3 

FMSHRC at 2480); see also Wilmot Mining Co., 9 FMSHRC 684, 686 (Apr. 1987) (“The 

Commission has held repeatedly that if a judge disagrees with a penalty proposed in a settlement 

he is free to reject the settlement and direct the matter for hearing.”); Pontiki Coal Corp., 8 

FMSHRC at 675. We have never expressly overruled or limited these holdings. 

Instead, in our latest cases addressing our Judges’ discretionary settlement review 

function, we affirm that the concept of “wide discretion” articulated in our precedents has real 

substance. We have held: 

A Judge’s approval or rejection of a proposed settlement must be 

based on principled reasons. Thus, the Commission has held that if 

a Judge’s approval or rejection of a settlement is “fully supported” 

by the record, consistent with the statutory penalty criteria, and not 

otherwise improper, it will not be disturbed, but that abuses of 

discretion or plain errors are subject to reversal. 

Black Beauty, 34 FMSHRC at 1864 (citations omitted). Under this formulation, the Commission 

may not reverse a decision that meets these standards simply because the Judge evaluated the 

parties’ factual presentation and legal contentions differently from the approach preferred by a 

majority of Commissioners on review. Application of the multifactor AmCoal standard – 

incorporating the section 110(i) and other factors we have held relevant – will generally result in 

some factors pointing toward one result and others to the opposite result. And nothing in section 

110(i) or our caselaw explains the relative weight to be given to them. But they do focus the 

Judge’s analysis. If a Judge has faithfully applied each factor in a manner consistent with our law 

 

42 FMSHRC Page 613
and supported by the record, we have held her determination “will not be disturbed.”13 Id. By 

contrast, if the Judge has neglected to apply or erroneously misapplied factors that served as a 

basis for the decision, the Commission would have a basis for reversal. 

But now, today’s majority ends Black Beauty/AmCoal I discretion, announcing a standard 

that is “abuse of discretion” in name only, serving to confuse the state of our law and conceal the 

degree to which the majority decision is incompatible with precedent. Addressing the factual and 

legal “representation” the parties must include in their motion to demonstrate the penalty 

reduction is fair and appropriate, the majority states: 

If taking those representations into account, the settlement meets 

the standard we articulated for approval in AmCoal I (fair, 

reasonable, etc.), the settlement should be approved. Although the 

Commission gives weight to the experience gained by ALJs 

through the handling of many settlements, the denial of a 

settlement that comports with the standard we have established is 

an abuse of discretion, and the Commission may exercise its 

discretion to accept the settlement. The facts of settlement come to 

the Commission in exactly the same form and relevance as before 

the Judge. 

In sum, it is an abuse of discretion to deny a settlement when 

agreed-upon or stipulated facts satisfy the standard for approval. 

Slip op. at 8. Nowhere in this standard of review is there room for a Judge to make a decision 

with respect to application of the AmCoal I elements that differs from the preferred outcome of a 

majority of Commissioners but is nevertheless insulated by a standard that requires deference to 

a decision that “is ‘fully supported’ by the record, consistent with the statutory penalty criteria, 

and not otherwise improper.” Black Beauty, 34 FMSHRC at 1864. Simply put, the majority takes 

an elaborately obscured path to ending abuse of discretion review, and with it, our Judges’ 

discretion.14

13 It must be noted in the context of the majority’s curbing of our Judges’ wide discretion, 

this phrase, “consistent with our law,” means not contrary to any precedential decision of the 

Commission and reviewing courts, which is very different from “consistent with the views of 

what our law should be, as espoused by a majority of Commissioners who will review the 

settlement approval decision de novo.” 

14 The majority is profoundly confused as to the Commission’s role in this and other 

cases in which we are asked to review the exercise of discretion by one of our Judges. At one 

point, the majority writes that the “dissent would make one think that the exercise of our

discretion to grant the settlement places the settlement process on the verge of collapse.” Slip op. 

at 14 (emphasis added). Elsewhere, they write “the Commission may exercise its discretion to 

accept the settlement.” Slip op. at 8 (emphasis added). 

 (continued...) 

42 FMSHRC Page 614
Of course, with the discretion we have long granted our Judges comes a corresponding 

obligation to fully explain the basis of its exercise. “While Judges have the duty to consider the 

sufficiency of facts submitted in support of a settlement, the proper exercise of their discretion in 

doing so requires them to articulate with some particularity any deficiencies against the standard 

we set forth in [AmCoal I].” Solar Sources, 41 FMSHRC at 601-02. But the majority has turned 

the AmCoal standard on its head. In American Coal, we required our Judges to exercise true 

discretion to apply each of its elements – fair, reasonable, appropriate under the facts – and 

upheld their decisions so long as they were supported by the record. If not, or if the Judge 

misapplied our law in the course of her evaluation, we remanded to the judge with instructions as 

to how to properly exercise discretion. 

Under the majority’s approach, the Judge’s application of each of these elements and 

criteria is no longer really a function of discretion. Now, the Judge can be reversed by the 

Commission, which will substitute its own de novo application of any and all elements of the 

standard. Rather than providing room for discretion and, where error is found, remanding to the 

Judge for exercise of wide discretion, the Commission now refuses remand as a matter of course, 

rather than rare exception. This arrogation of power—in this case, undertaking a de novo review 

of the parties’ motion to approve a greater than 80% penalty reduction – is not consistent with 

the Commission’s duty when reviewing under the abuse of discretion standard to defer to the 

Judge’s exercise of wide discretion. See Gall v. United States, 552 U.S. 38, 56 (2007) (“The 

Court of Appeals gave virtually no deference to the District Court’s decision . . . [and a]lthough 

the Court of Appeals correctly stated that the appropriate standard of review was abuse of 

discretion, it engaged in an analysis that more closely resembled de novo review of the facts 

presented.”); General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997) (“In applying an overly 

‘stringent’ review to [a discretionary] ruling, [the Court of Appeals] failed to give the trial court 

the deference that is the hallmark of abuse-of-discretion review.”). 

The role the majority decision leaves for our Judges is now more clerical than judicial – 

taking the parties’ representations at face value, uncritically approving them, and entering a 

decision neither party will appeal. Under the majority’s newly contrived standard, it does not 

make sense to speak of our Judges having discretion or to pretend we are engaged in a proper 

review of such discretion. “Discretion, like the hole in a doughnut, does not exist except as an 

area left open by a surrounding belt of restriction.” Ronald Dworkin, Taking Rights Seriously 48 

(Bloomsbury Academic 2013) (1977). True discretion is gone. 

14 (...continued) 

The majority mistakenly believes the question before us on review is whether the 

Commission itself has discretion to approve or deny the settlement agreement, which simply 

makes no sense in the context of a case where we are called to review the exercise of discretion 

by the lower court. The confused majority does not appreciate any difference between a case in 

which the settlement motion is filed initially with an ALJ, in which we review the Judge’s 

exercise of discretion, and an entirely different case – not before us – in which the settlement 

motion is filed with the Commission, in which case we would exercise discretion and a 

reviewing Circuit Court would review our decision under an abuse of discretion standard. 

42 FMSHRC Page 615
C. Pursuant to our Precedents, the Judge Properly Exercised her Discretion to 

Determine that the Motion Failed to Demonstrate the Penalty Reduction is 

Warranted. 

Each of the four citations alleges that Hopedale Mining failed to comply with its 

ventilation plan as required by 30 C.F.R. § 75.370(a)(1).15 The Secretary originally proposed 

civil penalties totaling $18,093 for the four citations and agreed to settle the four citations for a 

total penalty of $3,339. The Judge denied the motions to approve settlement, finding that the 

information provided was not sufficient to support the proposed modifications to negligence and 

gravity, or the “drastic reduction” in penalty. 41 FMSHRC at 324-26. The Judge further 

elaborated: 

A full evaluation of the facts set forth in each citation reveals that 

all of the citations were issued within a relatively short period of 

time and in the same area of the mine. Each citation was issued for 

a violation of the ventilation plan and the mine foreman was in the 

area when the citations were issued. While the Secretary asserts 

that the negligence of three of the violations should be reduced 

from moderate to low largely because the foreman or an “agent of 

the operator” was not aware of the violations, the facts paint a 

different view . . . . [T]he mine foreman is held to a higher standard 

and the negligence inquiry centers around whether he “knew or 

should have known.” For all of these reasons, I deny the 

Secretary’s request to reconsider the denials of settlement. 

Id. at 328. In addition, the Judge found that the operator had a history of not complying with its 

ventilation plan and the Secretary failed to explain his cursory assertion that the granting of the 

settlement motion would aid his future enforcement efforts. Id. On the whole, the Judge found 

that the parties failed to carry their burden to demonstrate that the proposed reduction was 

appropriate under the facts, reasonable, fair or in the public interest. To summarize with more 

specificity, the Judge ruled as follows with respect to each citation: 

Citation No. 8055975 alleges that the operator failed to ensure that adequate air was 

provided behind the line curtain in the active section where the roof bolter was operating. In 

settlement, the parties proposed reducing the penalty from $1,031 to $462, the penalty that 

results from reducing the negligence attributable to the operator from “moderate” to “low.”16 The 

15 Section 75.370(a)(1) requires the operator to “develop and follow a ventilation plan 

approved by the district manager.” 30 C.F.R. § 75.370(a)(1). 

 

16 According to the Secretary’s own Part 100 guidelines, “moderate negligence” occurs 

when “the operator knew or should have known of the violative condition or practice, but there 

are mitigating circumstances” and “low negligence” occurs when “the operator knew or should 

have known of the violative condition or practice, but there are considerable mitigating 

circumstances.” 30 C.F.R. § 100.3(d). While a Commission Judge may consider the Secretary’s 

Part 100 regulations, the Secretary’s definitions are not controlling. Commission Judges 

undertake a traditional negligence analysis. 

42 FMSHRC Page 616
Judge found that the parties failed to justify that a lower negligence designation was appropriate 

and reasonable, in part, because a foreman was present and “an operator’s actual or constructive 

knowledge is a key component of a negligence evaluation. Id. at 333 (citing Ohio Cty. Coal, 40 

FMSHRC at 1099). The Judge determined the parties’ presentation failed to demonstrate how it 

would be “reasonable” and “appropriate to the facts” that a penalty reduction is warranted by the 

alleged absence of a foreman who should know that as mining advances farther from the 

ventilation source, adequate steps must be taken to ensure continued compliance with the 

ventilation plan. Id. at 333-34; cf. Black Beauty, 34 FMSHRC at 1863 n.6 (“[T]he explanation 

provided by the Secretary for a reduction in penalty related to a preshift violation was 

inconsistent with the inspector’s description of the violation described in the order, but the 

inconsistency was not explained in the motion.”). 

Citation No. 8055976 alleges that the operator failed to remove the tail curtain in the 

entry intake, exposing miners to respirable coal dust and silica. In settlement, the parties 

proposed reducing the penalty from $12,321 to $1,666, reducing the alleged negligence from 

“high” to “moderate” and reducing the alleged gravity of the violation. The parties stated that a 

reduction in negligence is justified because the condition only existed for a short time and the 

foreman on the section was unaware of the violation. Assessing whether the proposed 

modifications are “reasonable” and “appropriate under the facts,” the Judge found that these 

contentions do not support the modifications to the citation, citing the serious dangers presented 

by dust exposure and the high standard of care the Mine Act requires of a foreman. A reasonably 

prudent foreman would have taken proactive measures to ensure that the curtain was properly 

adjusted.17 41 FMSHRC at 335. The Judge found that paying approximately 14% of the 

originally proposed penalty in settlement of this citation was not fair, reasonable, or in the public 

interest. 

Citation No. 8055977 alleges that the continuous miner had plugged water sprays; 19 out 

of 30 water sprays were plugged. The ventilation plan requires a minimum of 27 sprays to be 

operational. In settlement, the parties proposed reducing the penalty from $3,710 to $749, 

reducing the negligence from “moderate” to “low” and reducing the gravity of the violation. The 

parties stated that management was not aware of the violative condition and the personal samples 

taken by the shuttle car operator showed that dusts levels were in compliance despite the 

violation. The Judge concluded that the compliant dust levels were not relevant to the operator’s 

negligence in failing to abide by the water spray requirement. Furthermore, she noted that the 

record demonstrated that a high number of sprays were clogged, it took almost an hour to clean 

and repair and that a supervisor was in the area. 

17 In her analysis the Judge accepted the stipulated facts that the foreman was both 

present and unaware of the violative conditions. The Judge then considered how these stipulated 

facts affected the negligence attributable to the mine operator. The Judge recognized that a 

foreman may be considered to have constructive knowledge of conditions. It is a reasonable 

basis for her rejection of the parties’ legal contention that the reduction in negligence was 

justified because the foreman had no actual knowledge of the violative conditions. The Judge 

certainly did not engage in any credibility determination as the majority inaccurately alleges. See

slip op. at 8 n.4.

42 FMSHRC Page 617
Citation No. 8055978 was issued for failing to maintain the roof bolter vacuum as 

required by the ventilation plan. To settle the citation, the parties proposed modifying the penalty 

from $1,031 to $462 and reducing the negligence from “moderate” to “low.” The parties 

contended that a reduction in negligence was justified because the violation did not exist at the 

beginning of the shift, it was hard to detect a violation, and an agent of the operator was not 

aware of the violation. The Judge determined the parties failed to explain how these contentions 

warranted a penalty reduction given that a foreman was present and should have known of the 

violation. 

 We find no abuse of discretion in the aforementioned analysis. Rather, we conclude that 

the Judge properly considered the facts proffered by the parties as alleged and found that those 

alleged facts and the parties’ explanations and legal contentions did not demonstrate under the 

AmCoal standard that the proposed modifications to the citations were “reasonable” “fair” or 

“appropriate under the facts” and therefore failed to demonstrate the reduction in penalty is 

warranted. Cf. Black Beauty, 34 FMSHRC at 1863 n.6 (“[T]he motion to approve settlement lists 

the same facts for the reduction in penalty for each roof control and accumulation violation, but 

the motion does not include facts necessary to evaluate whether a reduction in negligence was 

appropriate, or an explanation for why the number of persons affected by the violation should be 

modified.”). The Judge’s conclusions are consistent with the AmCoal standard of review, “fully 

supported by the record, consistent with the statutory penalty criteria, and not otherwise 

improper.” Black Beauty, 34 FMSHRC at 1864 (internal quotations omitted). 

III. 

Conclusion 

 The majority provides no good reason for overturning the central holdings of at least 

three decisions in the Black Beauty and AmCoal cases – to completely rework a settlement 

review system that has performed admirably well. Principles of stare decisis are considered 

binding absent a strong reason, which should be provided in any opinion that changes or 

overrules precedent. Yet no policy or other reason is to be found in the majority’s opinion 

explaining even one of multiple departures from our binding precedents. Other than an inapt 

quote from a Supreme Court case and misinterpretation of a few select quotes from precedential 

decisions to arrive at conclusions contrary to those decisions’ essential holdings, the majority 

offers no reason – and certainly not a strong one – for departing from the rules of stare decisis to 

upend a demonstrably successful review process. 

We are concerned that the majority’s substantial yet unexplained departures from our 

precedent compromise the Commission’s role as a check against abuses of power. Congress 

intended for Commission Judges to ensure that the information provided in support of settlement 

agreements is true and correct and that a penalty reduction based upon such information is 

warranted under the appropriate criteria. Without this oversight, it is possible a government 

Solicitor seeking to conserve litigation expenses and an operator looking to reduce penalties 

could cooperate to arrive at a mutually acceptable penalty amount and then backfill factual 

stipulations that would support modifications to the underlying citation needed to arrive at the 

42 FMSHRC Page 618
desired Part 100 recommendation. Congress enacted the unique provision at section 110(k) for 

the express purpose of ensuring the Commission would not be a mere rubber stamp, opening the 

door to the type of deal-making and unwarranted settlements that originally concerned them 

enough to delegate the Commission oversight authority in section 110(k). 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 619

COMMISSION ORDERS
42 FMSHRC Page 620
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

August 21, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA)

Docket Nos. WEVA 2015-0509 

v. WEVA 2015-0632 

THE MONONGALIA COUNTY 

 COAL COMPANY 

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners 

ORDER

BY THE COMMISSION: 

These civil penalty proceedings arise under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”), and involve two orders which the 

Department of Labor’s Mine Safety and Health Administration issued to what is now the 

Monongalia County Coal Company (“MCCC”).1

 We granted the Secretary of Labor’s petition 

for discretionary review challenging a Judge’s determinations that (1) belt line accumulations, 

which violated 30 C.F.R. § 75.400, were not attributable to an “unwarrantable failure” to comply 

with the standard (Order No. 8059209); 2 (2) those accumulations did not constitute a “flagrant 

1

 The orders in dispute identified the operator as Consolidation Coal Company. Prior to 

the date of the orders, CONSOL Energy, Inc. sold all the issued and outstanding common stock 

of Consolidation Coal Company to Ohio Valley Resources, Inc. Thereafter, the name of the 

mine at issue was changed from the “Blacksville No. 2 Mine” to the “Monongalia County Coal 

Mine;” the Mine ID number, 46-01968, remained the same. After the purchase, the mine 

operator’s name was changed to “The Monongalia County Coal Company.”

2

 Section 75.400 provides that “[c]oal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be 

permitted to accumulate in active workings, or on diesel-powered and electric equipment 

therein.” The unwarrantable failure terminology, taken from section 104(d)(1) of the Act, 

30 U.S.C. § 814(d)(1), establishes more severe sanctions for any violation that is caused by “an 

unwarrantable failure of [an] operator to comply with . . . mandatory health or safety standards.” 

42 FMSHRC Page 621
violation” under the Mine Act;3

 and (3) a related violation of the preshift examination standard, 

30 C.F.R. § 75.360(a)(1),4

 was not the result of an “unwarrantable failure” (Order No. 8059212). 

40 FMSHRC 1234 (July 2018) (ALJ). 

 On August 11, 2020, the Secretary and MCCC jointly moved the Commission to approve 

their agreement to settle the case. Pursuant to the agreement, both unwarrantable failure 

designations would be reinstated, while the Secretary would drop his appeal of the accumulations 

violation being found to not be “flagrant.” The parties also agreed that the penalties assessed by 

the Judge in his decision, which have already been paid by MCCC, would stand: $60,000 for 

Order No. 8059209 and $22,200 for Order No. 8059212.

3

 Section 8(a) of the Mine Improvement and New Emergency Response (“MINER”) Act 

enacted in 2006 amended section 110(b) of the Act to create a “flagrant” violation designation 

and to provide for the assessment of an enhanced penalty as follows: 

Violations under this section that are deemed to be flagrant may be 

assessed a civil penalty of not more than $220,000. For purposes 

of the preceding sentence, the term “flagrant” with respect to a 

violation means a reckless or repeated failure to make reasonable 

efforts to eliminate a known violation of a mandatory health or 

safety standard that substantially and proximately caused, or 

reasonably could have been expected to cause, death or serious 

bodily injury. 

30 U.S.C. § 820(b)(2). 

4

 Section 75.360(a)(1) provides in pertinent part that “a certified person designated by 

the operator must make a preshift examination within 3 hours preceding the beginning of any 8-

hour interval during which any person is scheduled to work or travel underground.” Belts are 

required to be examined either once per shift or as part of a preshift exam for, among other 

things, “accumulations of combustible materials.” See 30 C.F.R. § 75.362(a)(3)(iii) & (b). 

42 FMSHRC Page 622
Having considered (1) the terms of the settlement agreement; (2) the substance of the 

Judge’s penalty assessments; and (3) that on October 29, 2019, MCCC entered into bankruptcy 

proceedings, we conclude that the settlement agreement “is fair, reasonable, appropriate under 

the facts, and protects the public interest.” Am. Coal Co., 38 FMSHRC 1972, 1982 (Aug. 2016). 

Consequently, we grant the settlement motion.5

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

5

 Our grant of the motion renders moot the Secretary’s pending motion to strike parts of 

the response brief MCCC filed with the Commission. 

42 FMSHRC Page 623

ADMINISTRATIVE LAW JUDGE DECISIONS
42 FMSHRC Page 624
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST. SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

August 4, 2020 

DECISION 

Appearances: Chris W. Burks, WH Law, PLLC, 1 Riverfront Place, Suite 745, North 

Little Rock, AR 72114 

Margaret S. Lopez, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., 

1909 K. Street , N.W., Suite 1000, Washington, D.C. 20006 

J. Carin Burford, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., 420

20th Street North, Suite 1900, Birmingham, AL 35203

Before: Judge Simonton 

This case is before me upon a complaint of discrimination filed by Theodore Oesau 

against Rogers Group, Inc. (“Rogers Group” or “Respondent”), pursuant to section 105(c)(3) of 

the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. § 815(c)(3).1

 Oesau 

contends that Rogers Group violated the Mine Act when it terminated his employment because 

he engaged in activity protected under section 105(c). Rogers Group maintains that Oesau was 

terminated for violating the company’s No Harassment Policy by uttering racial slurs on 

numerous occasions and by trying to get the mine’s plant manager fired because he is Black. 

A hearing was held on February 18–21, 2020 in Little Rock, Arkansas. Based on my full 

consideration of the testimony and exhibits presented at hearing, the stipulations of the parties, 

my observations of the demeanor of the witnesses, and the parties’ post-hearing briefs, I find that 

Rogers Group did not violate the Mine Act when it terminated Oesau.

1

 In this decision, the joint stipulations, transcript, the Complainant’s exhibits, and 

Respondent’s exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. C–#,” and “Ex. R–#,” 

respectively. References to the transcript include numerals I, II, or III to denote the volume of the 

transcript referenced, since each day’s transcript is independently paginated. 

THEODORE OESAU, 

 Complainant, 

 v. 

ROGERS GROUP, INC., 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. CENT 2019-0276-DM 

Case No. SC-MD-2019-07 

Mine: Greenbrier Quarry 

Mine ID: 03-00855 

42 FMSHRC Page 625
I. STIPULATIONS 

In its February 7, 2020 prehearing submission, Respondent Rogers Group submitted the 

following joint stipulations2 on behalf of the parties: 

1. Respondent is and, at all times relevant to this proceeding, was the operator of the 

Greenbrier Quarry, Mine ID number 03-00855. 

2. The Greenbrier Quarry 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 the Greenbrier Quarry entered 

commerce, the operations of products thereof affecting commerce within the meaning 

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

4. Rogers Group is an operator, as the term “operator” is defined in Section 3(d) of the Mine 

Act, 30 U.S.C. § 802(d). 

5. The Federal Mine Safety and Health Commission properly has jurisdiction over this 

proceeding. 

6. Complainant Theodore Oesau (“Complainant” or “Oesau”) was previously employed by 

Rogers Group. 

7. Oesau is a miner, as defined in the Mine Act at 30 U.S.C. § 802(g). 

8. Rogers Group terminated Oesau’s employment, effective March 14, 2019. 

9. Oesau timely filed with MSHA a discrimination complaint under Section 105(c) of the 

Federal Mine Safety and Health Act (“Mine Act”), 30 U.S.C. § 815(c), after his 

employment was terminated. 

10. MSHA conducted an investigation, pursuant to Section 105(c) and issued a determination 

letter to Oesau, dated May 23, 2019, stating that “MSHA does not believe that there is 

sufficient evidence to establish, by a preponderance of the evidence that a violation of 

Section 105(c) occurred.” 

11. On June 14, 2019, Oesau timely filed a Complaint with the Federal Mine Safety and 

Health Review Commission, under Section 105(c)(3). 

12. After receiving an Order to Show Cause, Rogers Group filed an Answer to the Complaint 

on October 30, 2019. 

2

 A fourteenth stipulation concerning the parties’ agreement regarding admissibility of 

exhibits has been excluded due to a dispute regarding the admissibility of Exhibits C–11 and C–

13, which arose at hearing.

42 FMSHRC Page 626
13. The presiding administrative law judge has authority to hear this case and issue a decision 

regarding this case pursuant to Section 105 of the Mine Act, 30 U.S.C. § 815. 

II. FINDINGS OF FACT 

A. Background 

Respondent Rogers Group, Inc. operates the Greenbrier Quarry (“Greenbrier” or “mine”), 

a sandstone open-pit quarry in Greenbrier, Arkansas. Jt. Stip. 1; Tr. II.12–13. The mine has 

approximately 9–10 employees. See Tr. I. 100, 190, 276. 

Complainant Oesau worked for Rogers Group from March 2012 until March 2019. 

Respondent’s Post–Hearing Br. at 4; Jt. Stip. 8. He was employed as a light duty mechanic, and 

was responsible for performing preventative maintenance on equipment. Tr. I. 200–01, 278. 

Oesau is not a certified mechanic. Tr. I. 197. In addition to preventative maintenance, he also 

worked as a backup equipment operator and performed upkeep, housekeeping, and landscaping 

duties as needed. Tr. I. 201. Oesau worked at Greenbrier, but also rotated to three other Rogers 

Group locations: El Paso, Cabot, and Conway County. Tr. I. 129. Because he worked at 

numerous locations and was responsible for a variety of tasks, Oesau’s schedule varied each day, 

but he generally worked at Greenbrier a couple of days per week. Tr. I. 134, 206–07. 

Prior to March 2018, Oesau’s direct supervisor was the former Greenbrier plant 

manager.3

 Tr. I. 208; Tr. II. 111. According to Rogers Group’s western division vice president, 

that former manager had poor attention to detail and poor safety results, and left the company 

because he failed a drug screen. Tr. I. 111–12. Following the former Greenbrier manager’s 

departure, the Cabot location’s plant manager became Oesau’s direct supervisor. Tr. I. 206, 208. 

Respondent promoted a management trainee from its El Paso location to fill the 

Greenbrier plant manager position in March 2018. Tr. I. 273; Tr. II. 109. Relevant to this case, he 

is a Black person originally from Botswana. Oesau described his relationship with this plant 

manager as “fine,” and said that the only issues the two of them ever had concerned safety. Tr. I. 

135–36, 188. The plant manager said that Oesau came to him with safety concerns 

“infrequently.” Tr. I. 317. This case largely centers on the relationship between Oesau and the 

Greenbrier plant manager. 

At various times prior to his termination, Oesau submitted a number of safety complaints 

to Rogers Group management, both orally and in writing. See Tr. I. 140–41. At one point, he 

began collecting safety complaints from other miners. Tr. I. 140–41. At that time, allegations 

surfaced that suggested Oesau had, on multiple occasions, used racially derogatory, offensive 

language to refer to the Greenbrier plant manager. Tr. III. 99–102. 

3

 Other than Complainant Theodore Oesau, the names of individuals who testified at the 

hearing or were named in testimony, briefs, or exhibits are not disclosed in this decision pursuant 

to an approved Protective Order issued on January 30, 2020. Tr. II. 8. 

42 FMSHRC Page 627
As set forth in more detail below, Rogers Group investigated both Oesau’s safety 

concerns and the claim that he had uttered racial slurs in the workplace. Respondent determined 

that the employees at Greenbrier did not have any outstanding or unaddressed safety concerns 

and confirmed that multiple miners had heard Oesau use offensive, racist language and that 

Oesau was intent on getting the manager fired. Oesau was thereafter terminated for violating the 

company’s No Harassment Policy. 

At the hearing, Oesau asserted his belief that he was in fact “terminated for filing safety 

issues against” the plant manager. Tr. I. 127. He claimed that he never made any sort of racebased comments about the plant manager or any other coworkers. Tr. I.185–87, 269. 

B. Oesau’s Safety Complaints 

At hearing, Oesau testified about a number of safety concerns he had regarding the 

Greenbrier Quarry. He claimed that the plant manager was always in a hurry to get the operation 

moving faster and was content with only partially fixing things so that equipment could keep 

running. See, e.g. Tr. 190. 

Oesau testified about specific events, practices, and pieces of equipment that he felt 

posed safety hazards at Greenbrier.4

 He first testified about a drop-axel water truck, which he 

and another mechanic had previously tagged out of operation because it was under construction 

and had a suspension issue. Tr. I. 127–29, 215. He claimed that the miner he found operating the 

truck told him that the plant manager authorized the removal of the tags from the truck. Tr. I. 

127. The plant manager denied directing anyone to remove a tag. Tr. I. 303; Tr. III. 75, 81. On 

cross-examination, Oesau confirmed that an outside mechanic had examined the truck with the 

other Greenbrier mechanic while Oesau was off-site. Tr. I. 215–16. The truck operator later 

testified that it was the other Rogers Group mechanic who removed the tag from the water truck, 

and that his impression was that the other mechanic talked to Oesau on the phone before doing 

so. Tr. II. 253–54. 

The second issue Oesau discussed at hearing concerned a “980H loader” that was 

“popping in and out of gear.” Tr. 131. Another former Rogers Group employee who operated the 

loader prior to leaving the company testified about this issue as well. Tr. I. 43–44. He said that 

the plant manager encouraged him to run the loader despite the issue, but then clarified on crossexamination that the plant manager did not “make” him run it. Tr. I. 44. He also testified that the 

plant manager had an outside mechanic come out to Greenbrier to examine the shifting issue and 

fix it, but it would sometimes act up again after being fixed. Tr. I. 52. Oesau too acknowledged 

that the plant manager had a mechanic come and look at the problem, but said initially that as far 

as he knew, nothing had been done to fix the problem. Tr. I. 132. He later contradicted that 

position and confirmed that the outside mechanic would work on the issue, think it was solved 

and then it would come up again. Tr. I. 224. The plant manager testified that they had difficulty 

4

 These safety issues are recounted here in the order in which they arose in Oesau’s 

testimony. The exact dates of specific events are not all well–established by witness testimony. 

Such dates are not necessary to determining the outcome of this case. 

42 FMSHRC Page 628
replicating the problem when outside mechanics came to troubleshoot, but that he took the 

machine out of service when the issue persisted. Tr. I. 295; Tr. III. 92–93. 

 Oesau also testified about his concerns with the way in which material was dumped off 

the high wall and onto a pile. Tr. 132–33. He suggested that dumping material off the side of a 

high wall that has never been driven on or packed posed a hazard because of its inability to 

support the weight of the equipment being driven on it. See Tr. I. 133. He further implied that 

operators were dumping too close to the high wall. See Tr. I. 133–134. Oesau was not present at 

the mine when this occurred. Tr. I. 228. When asked about this issue, the Greenbrier plant 

manager acknowledged that an operator had raised this practice as a concern and stated that they 

went to look at the area and came up with a solution to allow the operator to safely approach it. 

Tr. I. 294–95. 

Another safety issue Oesau raised was an electrocution that occurred at Greenbrier. Two 

months after being electrocuted on the job, the affected miner mentioned the incident to Oesau. 

Tr. I. 138. Oesau then told his supervisor, the manager at the Cabot location, who had not 

previously heard about the incident. Tr. I. 138–39. The Greenbrier plant manager asserted that 

though he did not communicate with the Cabot manager about the incident, he did report it to 

upper management shortly after it happened. Tr. I. 349, 353. 

Oesau also testified about a haul truck at the mine that had a broken seat. Tr. I. 139–40. 

He said two miners at Greenbrier came to him with the problem, and the three of them went to 

the Greenbrier plant manager to discuss it. Tr. I. 139. According to Oesau, the plant manager 

said “it’ll be alright,” and one of the miners then went on driving the truck despite the broken 

seat. Tr. I. 140. The plant manager testified that the seat normally allows an operator to adjust 

how the seat “floats” depending on work conditions and other factors, and the issue was that the 

seat had not been adjusting properly. Tr. III. 90. He also said that he made sure the operator was 

comfortable driving the truck, and that he ordered a replacement seat. Tr. III. 90. Before the 

replacement seat arrived, the operator came back to the plant manager and reported that he was 

no longer comfortable operating the truck. Tr. III. 90. The plant manager said that another miner 

then operated the truck until the new seat arrived since the faulty seat still performed for that 

miner’s weight class. Tr. III. 90. 

At the hearing, Oesau further testified that he had concerns about flat struts in the 325 

haul truck, the same truck that had a broken seat. Tr. I. 147–48. Oesau reported that the condition 

was the result of the truck being overloaded. Ex. 4, p. 1. However, the plant manager testified 

that this could not be the case, since a front strut was at issue, which would indicate speeding 

around a curve rather than overloading. Tr. III. 146. Oesau called in an outside mechanic to fill 

up the struts, and the plant manager did not interfere with getting that work done. Tr. I. 227–28. 

Oesau complained about a parking brake issue in the haul truck, too. Tr. I. 225; Ex. 4, p. 

3. The truck’s brake pads were replaced, but Oesau said the outside mechanic who replaced the 

pads said that the rotor was warped and also needed to be replaced. Tr. I. 226–27; Ex. 4, p. 3. 

According to Oesau, the plant manager did not allow the mechanic to put in a new rotor. Tr. I. 

226–27. The plant manager testified that the outside mechanic came several times to work on the 

brakes. Tr. III. 85–86. Over the course of multiple visits, the brake pads were adjusted, the the 

42 FMSHRC Page 629
locking mechanism was replaced, and the brake pads were replaced. Tr. III. 86. The plant 

manager stated that the mechanic recommended the rotors be replaced, too, since they were 

causing the brake pads to wear prematurely. Tr. III. 86. However, because the mechanic 

confirmed there were no safety implications, the plant manager decided to wait to replace the 

rotors. Tr. III. 86. He confirmed that the mechanic tested the brakes after each visit to ensure that 

they worked properly. Tr. III. 86–87. 

Next, Oesau testified that a sensor repair completed on a W–600 loader’s joystick was 

insufficient to fix its problems and asserted that the joystick should have been fully replaced. Tr. 

I. 229; Ex. 4, p. 4. The plant manager testified that he had called the mechanic in to look at the 

issue, but since it was a few days before they could get out there, Oesau looked at the machine 

before the outside mechanic did. Tr. III. 83. Oesau had ordered a new joystick assembly, but 

once the outside mechanic came out and saw it, that mechanic did not think the entire thing had 

to be replaced. Tr. III. 83–84. For that reason, the plant manager returned the joystick Oesau had 

ordered. Tr. III. 84. 

Finally, Oesau alleged that a miner had not been properly task trained to operate a piece 

of equipment at the mine. Tr. I. 230. He did not ask the miner in question or the plant manager 

about the training, but said that the two people qualified to do so told Oesau that they had not 

task trained the miner yet. Tr. I. 230–31. Oesau believes the Mine Safety and Health 

Administration (MSHA) cited Rogers Group for this. Tr. I. 231. The plant manager testified that 

the miner was task trained on the equipment prior to Oesau’s complaint. Tr. III. 96–97. The 

miner’s training records support this assertion. Ex. R–JJ. 

After witnessing what he believed to be numerous safety issues at the mine and feeling 

that nothing was being done about them, Oesau went to his direct supervisor, the manager of the 

Cabot location, with his concerns. Tr. I. 140. Oesau testified that his supervisor directed him to 

compile a written list of his concerns and to get written statements from other miners at 

Greenbrier to document their concerns about the issues. Tr. I. 141. Oesau did this, and assembled 

a list documenting the haul truck’s flat struts, broken seat, and faulty brakes, as well as the 

loader’s joy stick issue. Ex. C–4, p. 1–4. His document included a statement from one other 

miner, who complained about the loader’s joystick, overloaded haul trucks, and the plant 

manager’s insistence on continuing operations when lightning is striking too close to the plant. 

Id., p. 5–9. 

Complainant’s counsel called four other former Rogers Group employees to testify about 

safety issues. Tr. I. 41–123. One of these employees never worked at the Greenbrier location. Tr. 

I. 119. All had some friction in their relationships with the Greenbrier plant manager. While 

some of these witnesses testified about safety concerns that Oesau also complained of, it 

appeared that they were essentially called to imply a pattern that shows employees who go over 

the plant manager’s head to report safety concerns end up getting fired, just like Oesau. 

However, none of the four former employees ever filed discrimination complaints against the 

company. In large part, they testified about issues at other mine locations or facts that are 

otherwise unrelated to this matter. In the interest of clarity, I have elected not to summarize their 

testimony here.

42 FMSHRC Page 630
C. Oesau’s Harassing Remarks 

Respondent maintains that Oesau was fired for racial harassment in violation of the 

company’s No Harassment Policy. In particular, Respondent asserts that he was fired for using 

racial slurs when referring to the Greenbrier plant manager—which clearly constitutes racial 

harassment under the policy. At hearing, Rogers Group called multiple witnesses to testify about 

the comments. 

1. Miner A 

One miner (“Miner A”), who himself is Black, credibly testified that he heard Oesau 

make racially offensive statements on multiple occasions. The first time was in May 2018, when 

Miner A had only been at Greenbrier for a few weeks. Tr. II. 264. After a morning safety 

meeting, Miner A recalls Oesau say, in reference to the plant manager, “That black ass nigger 

monkey. I ain’t doing nothing he tell me to do. He don’t know nothing he talking about.” 5 Tr. II. 

263–64. About two hours later, Oesau came up to him and apologized, and Miner A told Oesau 

to apologize to the plant manager, not him. Tr. II. 265. 

A few weeks later, Miner A took a truck to Oesau to be fixed. Tr. II. 256, 266–68. Miner 

A testified that he told Oesau “[the plant manager] told me to bring the truck up here for you to 

fix the door,” and that Oesau replied, “I’m not going to fix on that nigger’s truck.” Tr. II. 257, 

267. Feeling bad, Miner A left and fixed the door himself. Tr. II. 257–58. 

The third time, Miner A again brought a truck to Oesau, this time for an antifreeze leak. 

Tr. II. 268. Oesau first said he was busy, and Miner A “waited, and waited, and waited.” Tr. II. 

268. When Miner A then said that the plant manager had him come up there to fix the issue, 

Oesau said, “I’m not fixing anything for that nigger,” and Miner A drove off. Tr. II. 268. 

Miner A did not report the harassment at first because he did not want Oesau to lose his 

job. Tr. II. 268. However, by the third instance, he realized that Oesau really meant what he said, 

and felt that Oesau was “too comfortable” using that offensive language—Miner A “just couldn’t 

take it” anymore. Tr. II. 263, 268, 272. 

When Oesau attempted to collect a written statement from him about the plant manager 

allegedly putting miners in danger, Miner A told Oesau that he did not want to be involved. Tr. 

II. 258–59. Because he felt as if Oesau and two other miners were blindsiding the plant manager 

by trying to get him fired for things that were not true, Miner A went to the plant manager to tell 

him about Oesau’s attempts to get miners to write up safety complaints. Tr. II. 260–61. At that 

time, he also told the plant manager about the racial slurs Oesau had used when referring to him. 

Tr. II. 261. 

5

 Reluctantly, I recount the racial slurs articulated at the hearing in order to provide an 

accurate, uncensored account of the testimony. 

42 FMSHRC Page 631
2. Miner B 

 A second miner (“Miner B”) testified he heard Oesau use racial slurs several times. The 

first instance was before a morning safety meeting, when Oesau used the “n” word to refer to the 

plant manager. Tr. II. 318. Then, in the shop on another morning, Oesau used the slur again. Tr. 

II. 319. Miner B told Oesau that that was not “the best thing to be saying” since they had the 

plant manager and Miner A, who are both Black, working at the mine, and added that it was 

disrespectful to say in front of anybody. Tr. II. 319. Miner B also testified that Oesau had said 

“monkey” on three or four separate occasions, and that he figured Oesau was referring to the 

plant manager each time he said it. Tr. II. 320–21. 

 Miner B did not report the comments right away because he thought that Oesau might 

stop using that language. Tr. II. 319. However, after the second time he heard Oesau use the “n” 

word in the shop, Miner B called the plant manager after work to tell him about the racial slurs as 

well as Oesau’s attempts to collect safety violations against the plant manager. Tr. II. 326–28. 

Regarding the safety violations, Miner B said that another miner had approached him on behalf 

of Oesau and told him that Oesau wanted to “get a list of safety violations to try to go against 

[the plant manager], to try to get him fired.” Tr. II. 328. Miner B told the other miner that he was 

not going to do that, and testified that he felt it was wrong because the plant manager had never 

done anything to put any of the miners at risk. Tr. II. 328–29. Miner B said the plant manager 

was “surprised that somebody was trying to go after him” and told Miner B that he would take 

care of it. Tr. II. 329–30. 

3. Greenbrier Plant Manager 

 The plant manager testified that four miners told him Oesau was going around collecting 

safety complaints in an attempt to get him fired. Tr. I. 323–24. In addition to Miners A and B 

reporting to him about the slurs and collection of safety complaints, the plant manager said a 

third miner also called him about the safety complaints. Tr. I. 324. The plant manager then called 

a fourth miner to see if he knew anything about it. Tr. I. 324. After hearing from the miners, the 

plant manager sent an email to his supervisors in upper management with an attached document 

detailing the issues. Tr. I. 328. In pertinent part, the attachment reads as follows: 

Information given below is as given to me by those who took the liberty to inform 

me in the spirit of confidence and would like to maintain anonymity: 

On Thursday, March 21st 20196

, Ted Oesau came to Greenbrier quarry to perform 

some PMs on our equipment. During the course of the day he approached some of 

my employees individually to notify them that [the Cabot manager] had instructed 

him to compile all events in which I asked/forced them (my employees) to work 

unsafely or put them in uncomfortable/hazardous situations. It was mentioned that 

6

 This date is incorrect. The document should say February 21, 2019. The email this 

attachment accompanied is dated February 25, 2019, and the Thursday preceding the date of the 

email was February 21, 2019. The plant manager also acknowledged the typo at hearing. See Tr. 

III. 109. 

42 FMSHRC Page 632
Ted assured those he spoke to that he was going to take the information directly to 

[the division vice president] to purge me. When Ted approached some individuals 

they refused to be a part of his agenda, however, [“Miner C”] continued to 

persuade everybody to join him and Ted on this mission. Everyone on the crew 

except for [“Miner D”] declined [Miner C]’s attempt. [Miner D] allegedly agreed 

to join forces with Ted Oesau and [Miner C]. 

Friday morning, first employee approached me to warn me to the situation that 

was brewing. Throughout the day on Friday and Saturday the rest of my team 

called me to warn me of this. . . . 

Two of my employees remarked that Ted had used hateful words against me in 

the past, calling me a “black monkey” and a “nigger”. These words were said in 

front of other employees in my absence. 

Ex. R–X, p. 3. 

The plant manager also recalled a conversation he had with Oesau’s supervisor, the Cabot 

manager,7

 after Oesau was fired: “he told me that he personally has heard Ted call me a nigger, 

previously, and he coached Ted to never use that language ever again during his employment 

with Rogers Group.” Tr. I. 334. 

D. Rogers Group Investigations 

Both before and after the Greenbrier plant manager sent the email about Oesau’s apparent 

attempt to get him fired, Rogers Group upper management conducted investigations into Oesau’s 

various safety complaints. The western division vice president testified at hearing about these 

investigations. After initially becoming aware of issues between Oesau and the Greenbrier plant 

manager in December 2018, he held a meeting in his office in January 2019.8 Tr. II. 36, 114. In 

that meeting, the division vice president, the Arkansas production manager, the Greenbrier plant 

manager, and Oesau met to discuss safety concerns as well as communication issues between 

Oesau and the plant manager. Tr. II. 36–37. At hearing, the division vice president could not 

remember which safety issues in particular were discussed at the January meeting. Tr. II. 38. 

A second meeting was held in the division vice president’s office in February 2019. Tr. 

II. 39. At that meeting, Oesau claimed that tags were being taken off of a water truck and it was 

being operated when it was tagged out. Tr. II. 119–20. After that meeting and after receiving 

Oesau’s list of complaints from the Cabot manager, the division vice president went to 

Greenbrier to look into the safety issues. Tr. II. 122–25. He talked through the complaints with 

the plant manager and went through and investigated each complaint himself. Tr. II. 125–26. 

7

 Unfortunately, Oesau’s direct supervisor was not called to testify at the hearing. 

8

 According to a timeline submitted by Complainant, this meeting occurred in either late 

November or early December, not in January. Ex. C–6, p. 2. Though the date of the meeting is 

not established, this discrepancy does not impact the outcome of this case.

42 FMSHRC Page 633
The division vice president believed that the issues between Oesau and the plant manager 

had something to do with the transition from the old Greenbrier plant manager to the new one—

they had different management styles. Tr. II. 114–15. He testified that, to him, it seemed that the 

main problem between them was communication, and that both Oesau and the plant manager 

seemed willing to work together going forward after each meeting in his office. Tr. II. 115–18. 

Following the Greenbrier plant manager’s February 25, 2019 email about Oesau’s 

offensive statements and attempts to collect safety complaints about the plant manager, the 

division vice president directed the Arkansas area manager9

 and general manager of central 

Arkansas operations to begin an investigation. Tr. II. 131; Ex.13, p. 1. The area manager did not 

testify, but he did author a memo which recounts the investigation and the events leading up to it. 

Ex. R–Y. It explains that, on March 11, 2019, he and the general manager: 

Both traveled to Greenbrier to interview all hourly employees on site. Each 

employee was brought into an individual interview to determine if they had been 

required to work in an unsafe manner, to ask how they felt the safety culture was, 

determine if the crew had received appropriate training, and to determine if they 

had been part of or witnessed anyone participating in derogatory conversation 

regarding supervision or coworkers. After having detailed conversations with all 

personnel on site it was discovered that 3 employees had witnessed Mr. Oesau 

calling [the plant manager] racially slanderous names. It was also found that only 

[“Miner E”] felt that there could be a safety issue at Greenbrier, but during 

conversation it was also discovered that he had never been asked to or forced to 

work in an unsafe manner. 

Id., p. 3. The general manager’s testimony at hearing was consistent with this. He recounted that 

he and the area manager went to Greenbrier unannounced and interviewed employees one at a 

time. Tr. II. 175–76. They asked the miners whether they had any safety concerns and if they 

“had heard any obscene, or vulgar, or derogatory, or racial type slurs in and around the 

operations.” Tr. II. 176. The interviewers did not name Oesau in their questioning, but the notes 

they typed up later states that two of the three miners who had heard racially charged language 

“offered up, without coercion, Mr. Oesau’s name.” Tr. II. 176, Ex. R–Z, p. 2. 

Two of the witnesses at hearing were miners that had been questioned in the March 11, 

2019 interviews. Miner A recalled being asked if he had heard anything inappropriate said 

around the mine. Tr. II. 271. Without naming Oesau, Miner A told the investigators about the 

three instances in which he had heard racially offensive language at Greenbrier. Tr. II. 271, 291. 

Miner B testified that when he met with the investigators, they asked him about the safety culture 

around the plant, and he told them that they had no problems with safety. Tr. II. 331. When 

asked generally about racial harassment, Miner B told the investigators that Oesau had been 

making racial comments. Tr. II. 331. 

9

 This individual was also referred to at hearing as the production manager for Arkansas. 

Tr. II. 172.

42 FMSHRC Page 634
The investigators did not interview the plant manager as part of their investigation into 

Oesau’s offensive remarks. Tr. I. 328–29. The two interviewers took handwritten notes and later 

typed them into a document at the request of Rogers Group’s Health and Safety director. Tr. II. 

176–78. 

E. Oesau’s Termination 

The division vice president reviewed the results of the investigation with the area 

manager, and they agreed that Oesau should be terminated. Tr. II. 137–38. Neither the 

Greenbrier plant manager nor the Cabot plant manager was involved in the decision to terminate 

Oesau. Tr. II. 137–38, 139–40; Tr. III. 110. Oesau was called into the division vice president’s 

office and informed of his termination on March 19, 2019. Tr. I. 150; Jt. Stip. 8. Oesau estimated 

that his termination occurred approximately three weeks after turning in his list of safety issues 

to his supervisor. Tr. I. 150. 

Oesau filed a 105(c) discrimination complaint with MSHA on March 26, 2019. Ex. C–1, 

p. 1. On May 23, 2019, MSHA notified Oesau that the agency had investigated his complaint and 

determined that there was insufficient evidence to support his allegations. Id. p. 6–7. Oesau then 

initiated this case on June 14, 2019. Jt. Stip. 11. Testimony and documentary evidence was 

presented at a hearing held in Little Rock, Arkansas on February 18–21, 2020, and the parties 

thereafter submitted briefs and replies to the court. 

III. DISPOSITION 

Oesau’s termination is the subject of this case. He claims that he was fired because he 

raised concerns about various safety issues. Rogers Group argues that his safety complaints are 

not protected activity because Oesau had no reasonable, good faith belief that his safety 

allegations were true. Respondent maintains that it did not terminate Oesau because he engaged 

in protected activity, but rather because he violated the company’s No Harassment Policy by 

using offensive, racist language on multiple occasions in front of other employees at work and 

because he attempted to lure other employees into a racially-motivated campaign to get the 

Greenbrier plant manager fired. 

Section 105(c)(1) of the Mine Act provides that a miner shall not be discharged or 

otherwise discriminated against because they have made a complaint regarding an alleged safety 

or health violation. 30 U.S.C. § 815(c)(1). Under the traditional Pasula-Robinette framework, the 

Commission has held that a miner alleging discrimination establishes a prima facie case of 

prohibited discrimination by presenting evidence sufficient to support a conclusion that (1) the 

complainant engaged in protected activity, and (2) the adverse action complained of was 

motivated in any part by the protected activity. Jayson Turner v. Nat'l Cement Co., 33 FMSHRC 

1059, 1064 (May 2011); Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 

1998); Sec'y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 

(Oct. 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 

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

FMSHRC 805, 817–18 (Apr. 1981). 

42 FMSHRC Page 635
If a miner establishes a prima facie case, the operator may rebut that case “by showing 

either that no protected activity occurred or that the adverse action was in no part motivated by 

the protected activity.” Turner, 33 FMSHRC at 1064. If the operator cannot rebut the prima facie 

case, it may nevertheless defend affirmatively by proving by a preponderance of the evidence 

that, although part of its motivation was unlawful, the adverse action was also motivated by the 

miner’s unprotected activity and it would have taken the adverse action against the miner for the 

unprotected activity alone. Id.; Pasula, 2 FMSHRC at 2799–2800. 

A. Prima Facie Case 

It bears repeating that to make out a prima facie case of discrimination, a complainant 

need only present “evidence sufficient to support a conclusion that the individual engaged in 

protected activity and that the adverse action complained of was motivated in any part by that 

activity.” Driessen, 20 FMSHRC at 328 (emphasis added). “This burden is lower than the 

ultimate burden of persuasion, which the complainant must sustain as to the overall question of 

whether section 105(c)(1) has been violated.” Turner, 33 FMSHRC at 1065. For the reasons that 

follow, I find that Oesau has met this initial, low burden and established a prima facie case of 

discrimination. 

1. Protected Activity 

Complainants bear the burden of establishing protected activity. Pasula, 2 FMSHRC at 

2797–2800; Sec’y of Labor on behalf of Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914, 

1920–21 (2016). A miner has engaged in protected activity if they (1) have “filed or made a 

complaint under or related to this Act, including a complaint . . . of an alleged danger or safety or 

health violation;” (2) are “the subject of medical evaluations and potential transfer under a 

standard published pursuant to section 101;” (3) have “instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or is about to testify in any such 

proceeding;” or (4) have “exercised on behalf of himself or others . . . any statutory right 

afforded by this Act.” 30 U.S.C. § 815(c)(1). 

It is undisputed that Oesau raised numerous safety concerns while employed at Rogers 

Group. Though Respondent does not dispute the existence of Oesau’s safety complaints, it has 

attempted to show that Oesau’s complaints were made in bad faith and are thus unprotected by 

the Mine Act. See Respondent’s Post-Hearing Brief (Resp. Br.) at 40–62. Rogers Group argues 

that Oesau “ignored open and obvious information readily available to him showing that there 

was no hazard.” Resp. Br. at 41. Respondent has also endeavored to undermine Oesau’s safety 

concerns by highlighting that he is not a certified mechanic. Id. 

Unquestionably, raising safety concerns at work constitutes “protected activity” within 

the ambit of section 105(c). See, e.g., Riordan, 38 FMSHRC at 1922 (“Raising safety concerns is 

paradigmatic ‘protected activity’ within the meaning of section 105(c)(2).”). For the purpose of 

this decision, it is immaterial whether the safety hazards Oesau feared actually existed. Oesau 

had no duty to avail himself of information that could have dispelled his concerns prior to 

submitting his complaints, and thus his failure to do so does not amount to bad faith. Oesau has 

provided sufficient evidence to show that he had legitimate concerns about various practices and 

42 FMSHRC Page 636
equipment at Greenbrier and that he communicated these concerns to his superiors. Ex. C–4, p. 

1–4; see Tr. I. 140–41, 145–49. Accordingly, I find that Oesau engaged in protected activity and 

has satisfied the first element of the prima facie case. 

2. Adverse Action Motivated by Protected Activity 

 The Commission has defined “adverse action” as “an action of commission or omission 

by the operator subjecting the affected miner to discipline or a detriment in his employment 

relationship. Sec’y on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1930 (Aug. 

2012). The question of whether an employer’s action qualifies as “adverse” is thus decided on a 

case by case basis. Sec’y of Labor ex. rel. Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 

1848 n.2 (Aug. 1984). 

Oesau alleged in his initial MSHA complaint and briefly mentioned at hearing that he 

was denied a raise in early February 2019. Ex. C–1, Tr. I. 268. This allegation was scarcely 

discussed at hearing and Oesau has failed to proffer any evidence that establishes he was ever 

denied a raise. There is no dispute, however, that Respondent discharged Oesau on March 14, 

2019. Jt. Stip. 8. This indisputably constitutes adverse action, as “[d]ischarge is perhaps the 

clearest form of adverse action prohibited by the plain language of the Mine Act.” Driessen, 20 

FMSHRC at 329. Having established both protected activity and an adverse action, Oesau must 

demonstrate that there is evidence sufficient to support an inference of a causal nexus: that his 

protected activity motivated Rogers Group to terminate his employment. 

A miner need not provide direct evidence of an operator’s discriminatory motive, but 

may provide “circumstantial evidence . . . and reasonable inferences drawn therefrom may be 

used to sustain a prima facie case.” Turner, 33 FMSHRC at 1066–67 (quoting Bradley v. Belva 

Coal Co., 4 FMSHRC 982, 992 (June 1982)). In evaluating whether a causal connection exists 

between the protected activity and the adverse action, the Commission looks to four factors: “(1) 

the mine operator's knowledge of the protected activity; (2) the mine operator's hostility or 

‘animus’ toward the protected activity; (3) the timing of the adverse action in relation to the 

protected activity; and (4) the mine operator's disparate treatment of the miner.” Cumberland 

River Coal Co., 712 F.3d at 318; see also Sec'y of Labor on behalf of Chacon v. Phelps Dodge 

Corp., 3 FMSHRC 2508, 2510–12 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 

1983). I will examine these factors in turn. 

a. Knowledge of Protected Activity 

Rogers Group does not dispute that Oesau submitted safety complaints. Multiple miners, 

including Oesau, testified about the way in which Oesau complained to his supervisor about 

various issues he had with situations and equipment at the mine. As discussed above, I do not 

agree with Respondent that Oesau’s allegations were all in bad faith and thus not protected 

activity. I find that Respondent had knowledge of Oesau’s protected activity. 

42 FMSHRC Page 637
b. Animus or Hostility Toward the Protected Activity 

Oesau argues that an email sent by the Rogers Group Arkansas area manager to the 

division vice president definitively establishes Respondent’s animus toward his complaints. 

Complainant’s Post-Hearing Brief at 15–16. With regard to Oesau’s alleged racially charged 

derogatory comments the email states that, 

[b]y itself this conduct could be forgivable, with a last chance, if there was 

acknowledgement from Ted and remorse regarding the conduct. The problem 

with the conduct is that it is aggravated by Ted’s concerted attempt to organize 

the labor force. Again, if this concerted activity was isolated and the only issue 

there could be consideration given. Given the circumstance that both acts indeed 

occurred, the likelihood of being able to salvage Ted’s job is slim to none. 

Ex. C–13, p. 2. After considering all of the evidence and testimony, I do not agree with Oesau’s 

assertion. However, for the purpose of establishing a prima facie case, I will accept that this 

email is at least sufficient to support an inference that there was some animus towards Oesau’s 

collection of safety complaints from other miners, which is related to his protected activity. 

c. Timing 

Oesau was terminated within a matter of weeks after he submitted a list of safety 

complaints to his supervisor. See Tr. I. 150. The Commission does not apply “hard and fast 

criteria in determining coincidence in time between protected activity and subsequent adverse 

action when assessing an illegal motive.” Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 

(Apr. 1991). Given the objectively short amount of time between the protected activity and the 

adverse action, I find that a coincidence in time exists in this case. 

d. Disparate Treatment 

Oesau has not provided any evidence of disparate treatment. “Typical forms of disparate 

treatment are encountered where employees guilty of the same, or more serious, offenses than 

the alleged discriminatee escape the disciplinary fate which befalls the latter.” Chacon, 3 

FMSHRC at 2512. While the company has not experienced any other allegations of racial 

harassment, it had previously dealt with a sexual harassment allegation. Tr. I. 141–42. In that 

instance, as in this one, Rogers Group conducted an investigation, confirmed the allegations were 

true, and terminated the employee for violating the No Harassment Policy. Tr. I. 142. 

Because Oesau’s experience was consistent with that of the other employee who violated 

the policy, I find that he was not subject to disparate treatment. 

e. Conclusion 

Bearing in mind that the prima facie burden is minimal, I find, in light of the above 

factors, that Oesau has put forth evidence that “could support an inference” that the adverse 

action was motivated, at least in part, by his protected activity. Turner, 33 FMSHRC at 1066 

42 FMSHRC Page 638
(citation omitted). As discussed below, however, I find that Rogers Group has successfully 

rebutted Oesau’s prima facie case. 

B. Rebuttal 

The operator may rebut the miner's prima facie case by showing either that no protected 

activity occurred or that the adverse action was in no part motivated by the protected activity. 

Turner, 33 FMSHRC at 1064. As discussed above, Rogers Group argues that no protected 

activity occurred because Oesau made his safety complaints in bad faith. Because I disagree, and 

find that protected activity has occurred, I turn to Respondent’s additional argument that Oesau’s 

termination was in no part motivated by his protected activity. 

Respondent asserts that “the evidence firmly establishes that Oesau used racist language 

at work, including highly offensive words and phrases that any person would recognize as 

bigoted, potentially threatening, and unacceptable in any context.” Resp. Br. at 65. I agree. The 

language Oesau used is a flagrant violation of Rogers Group’s No Harassment Policy, which 

explicitly lists “racial comments, slurs, [and] off-color jokes” as examples of harassment. Ex. R–

B, p. 1. The policy also states that, following an investigation, “[i]f harassment is found, 

disciplinary action, up to and including termination, will be taken against the harassing 

employee.” Id., p. 3. 

Through the testimony of multiple witnesses, Rogers Group established that Oesau made 

race-based, offensive comments at Greenbrier when referring to the Black plant manager. The 

evidence also shows that Oesau endeavored to get the plant manager fired by attempting to 

collect safety complaints about the plant manager. Oesau’s counsel points to the area manager’s 

email referencing “Ted’s concerted activity to organizer the labor force” as “smoking gun” 

evidence of discrimination under the Mine Act. Tr. I. 19; Ex. 13, p. 2. However, I find that the 

email, especially when analyzed in light of the extensive testimony on this issue, actually just 

shows that Rogers Group management was concerned about both Oesau’s racist comments and 

his racist motivation likely behind the attempt to get the plant manager fired. 

The evidence is clear: Rogers Group fired Complainant for racial harassment. 

Respondent’s decision to terminate Oesau was not motivated by his protected activity, but rather 

by his violation of the No Harassment Policy and Rogers Group’s interest in enforcing that 

policy and ensuring that employees have a workplace free of harassment. I find that Rogers 

group has successfully rebutted Oesau’s prima facie case. 

C. Affirmative Defense 

If an employer cannot rebut the prima facie case, “it nevertheless may defend 

affirmatively by proving that is also was motivated by the miner’s unprotected activity and 

would have taken the adverse action for the unprotected activity alone.” Turner, 33 FMSHRC at 

1064. In asserting this defense, “[i]t is not sufficient for the employer to show that the miner 

deserved to have been fired for engaging in the unprotected activity . . . . The employer must 

show that [it] did in fact consider the employee deserving of discipline for engaging in the 

42 FMSHRC Page 639
unprotected activity alone and that [it] would have disciplined him in any event.” Pasula, 2 

FMSHRC at 2800. 

Ample evidence shows that Rogers Group was motivated to discipline Oesau for the 

harassing remarks he made at work. The company’s harassment policy, its internal emails 

admitted into evidence, its past discharge of a harassing employee, and testimony of its 

management officials make this clear. In fact, when asked by the court about why the company 

elected to “go straight to termination, as opposed to some other discipline,” Rogers Group’s 

director of human resources confirmed that it was “the egregious nature of the comments that 

were made” that merited going straight to termination. Tr. III. 209. 

As discussed above, I find that Rogers Group terminated Oesau based on unprotected 

activities alone. However, even assuming that Oesau’s protected activity partially motivated 

Rogers Group’s decision to terminate him, Respondent still did not violate section 105(c) of the 

Mine Act because it has proven that it would have terminated Oesau for his harassing conduct 

alone. Rogers Group has thus proven its affirmative defense. 

IV. ORDER 

Accordingly, it is ORDERED that the complaint of discrimination brought by Theodore 

Oesau is hereby DISMISSED. 

 /s/ David P. Simonton 

 David P. Simonton 

 Administrative Law Judge 

Distribution: (Email10) 

Chris W. Burks, WH Law, PLLC, chris@wh.law 

Margaret S. Lopez, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., 

margaret.lopez@ogletree.com 

J. Carin Burford, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., carin.burford@ogletree.com 

10 For the foreseeable future, Federal Mine Safety and Health Review Commission 

(FMSHRC) notices, decisions, and orders will be sent only through electronic mail. Because 

FMSHRC will not be monitoring incoming physical mail or faxes, parties are encouraged to 

submit all filings through the agency’s electronic filing system. If you are not able to file through 

our electronic filing system, please send an email copy and we will file it for you. 

42 FMSHRC Page 640
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 

August 4, 2020 

DECISION AND ORDER GRANTING TEMPORARY REINSTATEMENT 

Appearances: Thomas J. Motzny, Esq., Nashville, Tennessee, for the Secretary of Labor 

Tony Oppegard, Esq., Lexington, Kentucky, and Wes Addington, Esq., 

Whitesburg, Kentucky, for the Complainant 

Arthur M. Wolfson, Esq., Fisher & Phillips, LLP, for the Respondent 

Before: Judge William B. Moran 

 This matter is before the Court on an application for temporary reinstatement 

(“Application”) filed by the Secretary of Labor on behalf of Complainant William R. Whitmore 

pursuant to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

815(c)(2) (“the Act”). The application, which was filed on July 9, 2020, seeks reinstatement of 

the Complainant “to the position he held immediately prior to the discharge, or to a similar 

position, at the same rate of pay, same shift assignment, and with the same or equivalent duties.” 

Application at 3. A video hearing on the Application was held on July 29, 2020. For the reasons 

that follow, the application is granted. Respondent is ORDERED to immediately reinstate the 

Complainant, William R. Whitmore, to the position he held immediately prior to his discharge, 

or to a similar position, at the same rate of pay, and the same shift assignment, and with the same 

or equivalent duties.

SECRETARY OF LABOR, U.S. 

DEPARTMENT OF LABOR on behalf of 

WILLIAM R. WHITMORE, 

 Complainant 

 v. 

YAGER MATERIALS CORP., 

 Respondent 

 TEMPORARY REINSTATEMENT 

Docket No. KENT 2020-0116-DM 

Mine: Riverside Stone Mine 

Mine ID: 15-00081 

Docket No. KENT 2020-0117-DM 

Mine: Riverside Stone Mine 

Mine ID: 15-18549 

42 FMSHRC Page 641
SUMMARY OF THE EVIDENCE 

As set forth below in greater detail, on the basis of credible testimony presented during 

the July 29, 2020 video hearing, the Court finds that the Complainant established several 

instances of protected activity by voicing safety complaints, that the Respondent had knowledge 

of those safety complaints, and that the Complainant’s suspension and termination occurred soon 

after those safety complaints were made. The Respondent’s defense did nothing to dispel the 

credibility of the Complainant’s safety complaints, but rather spoke to an alternative basis for the 

Complainant’s firing. That defense did not, in any way, tend to show that Mr. Whitmore’s claim 

was frivolous. Accordingly, the Court finds that the Mr. Whitmore’s Complaint was not 

frivolously brought and on that basis that the Complainant is to be immediately reinstated to his 

former position. 

HEARING TESTIMONY AND FINDINGS OF FACT1

Mr. William Whitmore, the Complainant, testified first. Whitmore began his employment 

with Respondent, Yager Materials Corp, on September 30, 2019. His job title was “maintenance 

manager.”2

 Tr. 19-20. The name of the mine for both its underground and surface operations is 

Riverside Stone. Tr. 60. He described his job duties as “[s]ite-wide maintenance management 

for the underground mine and the surface mine. ... [which entailed] [a]ll of the plant equipment 

that processes the aggregate and also all of the mobile equipment that produces the aggregate.” 3

Tr. 20. It is noted that, among his work experience, Whitmore is an MSHA certified instructor 

and has done a lot of miner safety training in the course of his 36 years of mining experience. Tr. 

62. Whitmore was terminated (fired) from his job at Yager on April 29, 2020. Id. 

 Whitmore testified that, during January 2020, while he was on medical leave, he 

anonymously reported safety incidents, which occurred prior to that leave, to MSHA through an 

online method provided by MSHA to report such matters. Tr. 21-24. The incidents he reported 

through the MSHA online method involved inadequate training and improper documentation of 

such training, relating to mobile equipment operators. Id. Upon his return to work, though no one 

accused Whitmore as the source for the anonymous complaint, Bryan Ory, the site’s general 

manager, who was Whitmore’s immediate supervisor at Yager, acted differently toward him. Tr. 

1

 This section of the Court’s decision and order represents a more detailed summary of 

the hearing testimony and is derived from what the Court determined to be the salient evidence 

for the limited nature of the issue to be resolved in this hearing. It is not intended as a substitute 

for the entirety of the transcript. The parties were all provided with a copy of the transcript on the 

morning of July 30, 2020, the day following the hearing. 

2

 According to Whitmore, “Yager Materials never had a maintenance manager for that 

site since 1954, approximately, whenever they started mining there.” Tr. 64. Once Carmeuse 

acquired Yager, they determined it “necessary to have a maintenance manager on-site,” and he 

was the first maintenance manager hired for that mine. Tr. 64-65. It was Whitmore’s 

understanding that Bryan Ory, the site’s general manager, had worked at Yager for some 32 

years. Tr. 65. 

3

 Yager Materials, at both its surface and underground facility, produces limestone. Tr. 

78. The operation is located in Battletown, Kentucky. Tr. 20. 

42 FMSHRC Page 642
21, 25. Whitmore presented credible examples to support his claim that Ory treated him 

differently upon his return to work following his medical leave. E.g. Tr. 28. 

During April 2020, Whitmore raised safety issues with Yager. The first was his concern 

that a contractor working on-site was not complying with the mine’s COVID-19 restrictions and 

protocols. Tr. 28. Those protocols were put in place by Yager’s parent company, Carmeuse. Id. 

He emailed his concern about this to Jenn Carnley, Respondent’s office manager, and a human 

resources employee, described as a “HR generalist.” Tr. 29. Several other Yager personnel were 

included in Whitmore’s email to Carnley, including Bryan Ory. Ex. C 1 and Tr. 30. Following 

that, Whitmore had a face-to-face discussion with Ory about this issue. Tr. 31. 

 A separate instance occurred on April 17, 2020. This involved the Complainant’s 

assertion that there was a near miss accident while he was driving in the company’s pickup truck 

as he came upon a haul truck using the same road. According to Whitmore’s account which, for 

purposes of this hearing, the Court finds to have been credible, a 70 to 75 ton haul truck was 

speeding on the road and upon hitting a dip in the road, large pieces of aggregate (limestone ore) 

fell off the haul truck, narrowly missing hitting Whitmore’s vehicle. Tr. 32. Following that event, 

Whitmore drove to Ory’s office and related the event to him, including his suggestions to remedy 

the safety issue he perceived. Tr. 33. Whitmore contended that Ory acted disinterested about the 

matter. Whitmore also emailed others within the Respondent’s chain of authority about this 

event. Tr. 34-35 and Ex. C 2, C 3, C 4, and C 5. 

 Whitmore then identified another safety concern he raised with Yager. This also occurred 

in April 2020. Tr. 41, Ex. C 6. This matter involved maintenance concerns and his 

recommendation that equipment with safety issues should be taken out of service until repairs 

were made. In conjunction with this issue, Whitmore created a spreadsheet identifying safety 

deficiencies with particular pieces of equipment. This spreadsheet included some handwritten 

additional safety concerns involving inadequate steering control on loaded trucks. Ex C 6, with 

Whitmore’s signature on the exhibit and dated April 21, 2020. That document was created 

entirely by Mr. Whitmore, including the handwritten notes on it. Tr. 76-77. Whitmore testified, 

again the Court finding his testimony to have been credible, in the context of this temporary 

reemployment proceeding, that he reported this to Ory, placing it on his desk. Tr. 41-42. The 

report Whitmore created was not an isolated instance, as he presented similar such reports “every 

couple of weeks.” Tr. 42. The next day Whitmore found the spreadsheet returned to his desk, 

with no comment from Ory. Tr. 43. Whitmore informed the Court that reviewing the preshift 

notes and deficiencies were part of his job. Tr. 44. Whitmore provided credible detail about the 

nature of the safety issues he identified in that spreadsheet. Tr. 45-50. 

 Following the safety concerns expressed by Whitmore, as described above, on April 23rd, 

that is to say, two days after the spreadsheet was presented to Ory, Whitmore was instructed by 

Lisa Wellman to be in Ory’s office for a telephone conference that day. Tr. 51. During that 

conference Wellman raised questions about Whitmore’s interaction with a new employee, who 

was identified for purposes of this hearing and with the agreement of all parties only as “Mike.” 

Whitmore was Mike’s direct supervisor. Tr. 77. Focusing upon the only issue of potential 

pertinence to this proceeding was the Respondent’s interest as to whether Whitmore had spoken 

to Mike on the issue of whether the new employee’s probationary period could be extended. 

42 FMSHRC Page 643
Whitmore denied ever discussing that subject with Mike. 4

 Tr. 55. The upshot of the telephone 

conversation was that Whitmore was informed he was suspended for three days, “[p]ending an 

investigation of conversations [that he, Whitmore] had with Mike.” Id. The suspension began on 

April 23rd. Tr. 56. Subsequently, Whitmore was told to appear at Yager’s Owensboro corporate 

office on April 29th. Several Yager management persons were at the meeting, including Ory, who 

was present, via computer, from Battletown. Tr. 57-58. Lisa Wellman directed the meeting, and 

informed the Complainant that he was being terminated. Tr.58. According to Whitmore, he could 

not get an answer as to reason for his firing but eventually Wellman, as Whitmore related her 

response to him, informed him that “management cannot say to an employee “what [he 

Whitmore allegedly] said [to Mike] and they determined that was unacceptable and that was 

grounds for my dismissal.” Tr. 58-59, reflecting Whitmore’s recounting of Wellman’s reason for 

his firing. Following that, he was on that day given his termination letter, a severance document 

and informed that he had 21 days to respond to it. Tr. 59. Whitmore did not sign the agreement 

presented to him by Yager. Id. 

Both at the time of the testimony under cross-examination of Mr. Whitmore and upon 

review of the transcript of that cross-examination, (Tr. 78- 97), and recalling that the Respondent 

has advanced in its defense the single claim that Whitmore made inappropriate remarks about the 

probationary period for the employee identified as “Mike,” the Court has concluded that only the 

following has relevance to this proceeding seeking temporary reinstatement. Whitmore was 

questioned by Respondent about his duties as maintenance manager and in particular about 

Exhibit C 6 which, it will be recalled, involved alleged safety issues Whitmore recorded on that 

exhibit. Though that exhibit listed “up” for each equipment issue, the term being used to declare 

that the equipment was still being operated, Whitmore stated that he lacked authority to tag out 

equipment, making it unavailable for service. The Court finds that the Respondent’s line of 

questioning regarding the equipment Whitmore listed with deficiencies did not advance the 

Respondent’s attempts to diminish the information contained in that exhibit. Whitmore added 

that while he tagged out a lot of equipment, beyond the equipment listed in Ex. C 6, “in most 

cases the tags were disregarded and the equipment was run anyway.” Tr. 84. It is noted that the 

Respondent presented no evidence in its case on rebuttal to challenge Whitmore’s claim on that 

score. 

Challenged by Whitmore’s private counsel as to the Respondent’s line of questioning 

about Ex. C 6 and Respondent’s Counsel’s admission that such questions were directed to 

Whitmore’s veracity about the information in that exhibit, Whitmore’s private counsel noted that 

credibility findings are not within the ambit of a temporary reinstatement proceeding. 

Respondent’s Counsel differed on that score, contending that the views of two Commissioner’s 

in Shaffer v. Marion County, 40 FMSHRC 39, (Feb. 2018) (“Shaffer”) supported the line of 

questioning. The Court ruled by noting again that the Respondent’s defense had been limited to 

the claim that Whitmore had made inappropriate remarks to Mike in connection with that 

employees probationary period. The Court then noted its view that the expressions s of any two 

Commissioners has no precedential value. Tr. 87-88. More will be said about Shaffer in the 

discussion regarding conclusions of law, infra. The Court also agreed that credibility 

determinations must await the full discrimination action. 

4

 In later testimony, as discussed infra, Yager employees arrived at a different conclusion, 

determining that, in their view, Whitmore had raised the topic with Mike. 

42 FMSHRC Page 644
However, the Court permitted Respondent’s attorney some leeway to continue that line of 

questioning on the basis that “the rule itself [addressing temporary reinstatement proceedings, at 

29 C.F.R. § 2700.45(d)] says that the respondent shall have an opportunity to cross-examine any 

witnesses called by the Secretary and may present testimony and documentary evidence in 

support of its position that the complaint was frivolously brought. Tr. 88. Thus given limited 

leeway to proceed, the Court finds that in the few questions that followed, the Respondent made 

no headway on that score to advance the contention that Whitmore’s complaint was frivolous. 5

The Court elaborated on this subject with the following remark: 

The issue with reference to C6 might be the subject of a full hearing on 

discrimination, but really, for purposes of this proceeding it is just whether the 

respondent was aware that Mr. Whitmore created this document. And his 

testimony was, if I have it correct, that he created this document, put that and 

others on the desk of Mr. Ory, and so that's the limited focus. Not whether, in fact, 

a backup alarm, reverse lights were fixed and not whether the lights that were out 

were corrected. The same is true for the question [Respomdent’s Attorney] just 

asked about documentation and training. The subject for this hearing [in the 

context of this line of questioning is] did the complainant raise issues with Yager 

about training and about documentation of the training. Not into the particulars of 

that. That is further down the road. So that's my ruling on that and so you can 

proceed on to something else. 

Tr. 92. 

When Respondent’s Counsel questioned Whitmore about whether, in Ex. C 1, he 

specifically raised the subject of social distancing in connection with the COVID 19 pandemic, 

in that email, the Court noted that while those words were not expressly in the email, it was 

clearly the import of the message. When next asked if he received a response to that email, over 

an objection to the question by the Secretary’s attorney, the Court allowed the question but 

observed that: 

for purposes of the temporary reinstatement application, A, the respondent has not 

alleged that had anything to do with Whitmore's termination. Another point is any 

employee, Mr. Whitmore doesn't have to be making a safety complaint or safety 

issue about those within his particular ambit, in other words those people that 

work directly under him or not. If I'm electrician at a mine, which is a shocking 

suggestion, but if I were and I make a complaint about someone who has a totally 

different job doing something, I can still make that complaint to management or I 

can make an anonymous call. It doesn't have to be something that's in my circle of 

authority. So, again, I come back to the point the issue in C1 is that Mr. Whitmore 

transmitted this message to Jenn Carnley and that's the extent of it. 

 

5

 Similarly, the Court finds that the Respondent made no advances to establish 

frivolousness, when Whitmore was asked about his anonymous complaint regarding inadequate 

training and insufficient documentation of such training. Tr. 89-90. 

42 FMSHRC Page 645
Continuing, the Court noted that: 

[h]ow they respond to [my electrician making a safety complaint example] gets 

far afield to what [the Court has] to determine in the narrow scope of this 

proceeding.” [As applied here], “[d]id Mr. Whitmore send this email. Doesn't 

seem to be any challenge about that. So he communicated this concern and I think 

beyond that, when we get into issues about well, what did the respondent do about 

that, that, in my view, gets into the question of a full discrimination proceeding 

and for determination perhaps in such a proceeding if that occurs. That's my 

ruling on that. It is far afield. 

Tr. 95-96. 

With Respondent’s Counsel expressing that he was unsure where the Court’s ruling pointed, the 

Court then added, 

[i]t leaves you, I'm not interested in this hearing, it might be very interesting in a 

full discrimination proceeding, but I'm not interested in this proceeding whether 

the company did something constructive in reaction to that because that wouldn't 

tell me, that wouldn't instruct me that the complaint was frivolously brought and I 

would also note that this was not the only issue that was raised by Mr. Whitmore. 

There are numerous subjects that he raised during his direct testimony. It is 

certainly not limited to this. For my purposes, ... I view this as whether the 

complainant issued what is effectively a complaint and a concern, safety and 

health concern, and [ ] there's no challenge to that. He did communicate that. 

Tr. 96. 

The Secretary then rested its case and the rebuttal testimony from the Respondent 

proceeded. Tr. 98. Ms. Lisa Wellman was then called by the Respondent. She is the HR manager 

for Carmeuse. She reports to Melissa Croll and for any other operations within Carmeuse she 

reports up through Victoria Neff. Ms. Neff is the director of HR for the field operations for 

Carmeuse but she does not have responsibilities over Yager. Tr. 102-103. For Yager related 

matters, Wellman reports to Ms. Croll. Tr.103. As to this Whitmore proceeding, Wellman 

informed that she “conducted the investigation and ultimately made the recommendation to 

Melissa Croll for [Whitmore’s] termination. Tr. 104, 113-114. Again, Respondent’s position is 

that it fired Whitmore solely for his “inappropriate comments regarding extending a probationary 

period for an employee with [a] medical condition.” Id. Wellman then related the alleged 

circumstances regarded the claimed inappropriate comments, which comments, as have been 

noted, Mr. Whitmore has denied making them. There is no purpose is an extended retelling of 

Ms. Wellman’s testimony on this score. In sum, she conducted her investigation, concluded that 

 

42 FMSHRC Page 646
Mr. Whitmore’s version was not true and on that basis he was fired.6

 Wellman’s 

recommendation to terminate Whitmore was made to Ms. Croll, who agreed with that outcome. 

Tr. 115. 

At the conclusion of Ms. Wellman’s testimony the Court took the opportunity to remark 

that 

for the purposes of the decision I have to make that I'm able to and I must 

compartmentalize as follows: In box A, if you will, I have Mr. Whitmore's 

multitude of safety and health issues which he raised. I'm not speaking to Miss 

Wellman's knowledge of that. I have box A, I have all of that testimony. And then 

in box B I have, if you will, the Mike issue. It seems to me that I don't have to 

resolve the Mike issue in the context of a temporary reinstatement application. If I 

accept for the moment that Miss Wellman knew nothing about any of this, I'm not 

suggesting you did, that nobody at Yager knew anything about any of these 

things, it doesn't matter for purposes of the temporary application proceeding. 

What I have to find are the bare elements, which I've reviewed already and so that 

would not make up, even accepted as absolutely true, that transforms Mr. 

Whitmore's application into a frivolous one. That's my view of it. Tr. 117. 

Respondent then called Melissa Croll. Ms. Croll is based in Pittsburgh, PA and is 

employed by Carmeuse Americas. Tr. 126. She is the vice-president of human resource for 

Carmeuse Americas. Id. As pertinent to this proceeding, Ms. Croll stated that Lisa Wellman 

reports to her only for Yager Materials activities. Tr. 127. Croll determines matters of employee 

terminations and she approved Whitmore’s firing. Tr. 128. She stated that the termination was 

merited because Whitmore’s remarks “that he made were inappropriate and illegal and was 

worthy of termination.” Tr. 128. Thus, she accepted Wellman’s recommendation. Id. As with 

Wellman’s testimony, Croll maintained that she knew nothing about Whitmore’s various safety 

related complaints. Tr. 129.

6

 Although Counsel for the Respondent, in response to an objection, that his question to 

Ms. Wellman was for the limited purpose of showing that those who decided to fire Whitmore 

had no knowledge of his protected activity and were only making the decision because the 

Whitmore’s alleged remarks to Mike, the Court sustained the objection. The Court explained its 

ruling further noting that “it's enough if I have, if I accept the veracity of the complainant's 

testimony and then we have a close in time termination, which is what we have here. I do have 

some evidence that he communicated some of these safety concerns via email and via his 

testimony about the spreadsheet. So, ... beyond that, that's all I have to have in meeting the very 

low bar for whether this complaint is frivolous[ ] or not.” Tr. 110-111. 

42 FMSHRC Page 647
Commission Case Law on Applications for Temporary Reinstatement 

The Commission has a venerable history regarding the standard to be applied in 

applications for temporary reinstatement and by virtue of that, the applicable law to be applied in 

applications for temporary reinstatement has been well established. A representative example 

expressing the law to be applied is set forth here: 

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

miners for exercising any right afforded by the Act. Under Section 105(c)(2) of 

the Act, “if the Secretary finds that [a discrimination] complaint was not 

frivolously brought, the Commission, on an expedited basis upon application of 

the Secretary, shall order the immediate reinstatement of the miner pending final 

order on the complaint.” 30 U.S.C. § 815(c)(2). The Commission has stated that 

the scope of a temporary reinstatement hearing 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 *637 in a 

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

738, 748 (11th Cir. 1990). 

The Commission has explained that “it is not the judge’s duty ... to resolve 

[[[any] conflict in testimony at this preliminary stage of proceedings.” Sec’y of 

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

1999). See also, Sec’y of Labor on behalf of Shaffer v. Marion County Coal Co., 

No. WEVA 2018-117-D, 40 FMSHRC ___, slip op. at 4, 9 (Feb. 8, 2018). 

Nevertheless, the Judge “need not accept testimony if it is demonstrably false, 

patently incredible, or obviously erroneous.” Shaffer, slip op. at 9 (Althen, 

Chairman, and Young, Comm’r). [“Shaffer”] [40 FMSHRC 39, 47]. 

The issues raised in a temporary reinstatement hearing are “conceptually different 

from those implicated by the underlying merits” of the miner’s discrimination 

claim. JWR, 920 F.2d at 744. The temporary reinstatement proceeding addresses 

“whether the evidence mustered by the miner[] to date establishe[s] that [his] 

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

discrimination to justify permanent reinstatement.” Id. 

While an applicant for temporary reinstatement need not prove a prima facie case 

of discrimination, the elements of a discrimination claim are relevant to the 

analysis of whether the evidence presented satisfies the non-frivolous test. Sec’y 

of Labor on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1088 

(Oct. 2009). In order to establish a prima facie case of discrimination under the 

Act, a complaining miner must present evidence sufficient to support a conclusion 

that he engaged in protected activity, that he suffered an adverse employment 

action, and that the adverse action was motivated at least in part by that activity. 

Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1064 (May 2011); Sec’y 

of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-

42 FMSHRC Page 648
18 (Apr. 1981); Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2

FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3d 

Cir. 1981). The Commission has acknowledged that evidence of motivation is 

frequently indirect, and has identified several “circumstantial indicia of 

discriminatory intent: (i) hostility or animus toward the protected activity; (ii) 

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

protected activity and adverse action.” Williamson, 31 FMSHRC at 1089; Sec’y of 

Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 

1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). The question for the 

judge at this stage is whether there is a non-frivolous question as to the elements 

of the case. Williamson, 31 FMSHRC at 1091. 

D&H Mining, 40 FMSHRC 635, 636-637 (Mar. 19, 2018) (ALJ Miller) (“D&H”). 

Recently, however, the Court has noted that two Commissioners, Commissioner William 

Althen and Commissioner Michael Young, have expressed new perspectives about the standard 

required in applications for temporary reinstatement. This occurred in Sec’y of Labor on behalf 

of Shaffer v. Marion County Coal Co., 40 FMSHRC 39 (Feb. 2018) (“Shaffer”), wherein they 

introduced the view that the “preponderance of the evidence” plays a role in temporary 

reinstatements proceedings. This is new. As set forth below, in an examination by this Court of 

all prior Commission level decisions, it has not been able to find and therefore has not located 

any prior decision introducing that test into the temporary reinstatement analysis. In fact, as set 

forth below, a Commission majority opinion, which included Commissioner Young, disavowed 

consideration of engaging a preponderance test in such matters. See, Williamson v. CAM Mining, 

31 FMSHRC 1085 (Oct. 2009), infra.

Here is what Commissioners Young and Althen had to say about the matter in Shaffer: 

There is no presumptive right to temporary reinstatement. Rather, the 

complainant’s entitlement must be established by substantial evidence, as in any 

other proceeding. Only the standard that the evidence must meet is diminished. 

Thus, in a discrimination case, the complainant bears the burden of proving 

discrimination by a preponderance of the evidence. Sec’y of Labor on behalf of 

Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (Oct. 1980), 

rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 

1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817-18 (Apr. 1981). In contrast, at this early stage of the 

proceedings, the Secretary has the burden of proving by a preponderance of the 

evidence only that the claim is not frivolous. Sec’y of Labor on behalf of Pappus, 

38 FMSHRC 137, 154 (Feb. 2016), rev’d on other grounds, CalPortland Co. v. 

FMSHRC, 839 F.3d 1153 (D.C. Cir. 2016).

42 FMSHRC Page 649
Preponderance of the evidence means the greater weight of the evidence, such 

that the Secretary has demonstrated that it is more probable than not that the claim 

is not frivolous. The burden of proof in a temporary reinstatement case, 

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

“““non-frivolous.” 

 As with all disputed claims, the outcome depends upon the evidence presented. If 

the operator requests a hearing, the hearing is a full judicial proceeding. In 

Secretary of Labor on behalf of Gray v. North Fork Coal Corp., 33 FMSHRC 27 

(Jan. 2011), the Commission quoted with approval the decision of the Eleventh 

Circuit regarding the nature of a temporary reinstatement hearing: 

 At [the temporary reinstatement hearing], the employer has the opportunity to test 

the credibility of any witnesses supporting the miner’s complaint through crossexamination and may present his own testimony and documentary evidence 

contesting the temporary reinstatement.... [T]he statute grants [the employer] the 

right to seek an adjudication from a neutral tribunal, prior to a deprivation of its 

property interest, with all the regalia of a full evidentiary hearing at its disposal. 

40 FMSHRC 39 at 42 (quoting Jim Walter Res., 920 F.2d at 747-748) (emphasis 

added). 

 We glean two points. First, a temporary reinstatement hearing or proceeding is a 

full evidentiary process, albeit a greatly expedited one. The opportunity for such a 

hearing satisfies the operator’s due process rights. 

 Second, the opportunity to test credibility identified by the Commission in Gray

would be meaningless without a genuine exposition of the evidence presented. If 

versions of events diverge without dispositive proof of either, the outcome at the 

reinstatement stage may not rest upon a choice between the versions, and the 

miner must be reinstated. However, a Judge need not accept testimony if it is 

demonstrably false, patently incredible, or obviously erroneous, because such 

evidence fails to qualify as “substantial evidence” upon which a reasonable 

person might rely. 

 Thus, 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 

42 FMSHRC Page 650
determine whether the claim is frivolous, in light of undisputed or conclusivelyestablished facts and inescapable inferences. 

Id. at 46-47 (emphasis added).7

7

 In Shaffer, Commissioner Mary Lu Jordan and now former Commissioner Robert F. 

Cohen Jr. hewed to the traditional and longstanding analysis applied to temporary reinstatement 

application proceeding, expressing: 

“Under section 105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination] 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the immediate reinstatement of the miner pending final order on the 

complaint.” 30 U.S.C. § 815(c)(2). The Commission has recognized that the “scope of a 

temporary reinstatement hearing is narrow, being limited to a determination by the [J] udge 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). 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.” Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 748 

(11th Cir. 1990). 

Courts and the Commission have likened the “not frivolously brought” standard set forth 

in section 105(c)(2) with the “reasonable cause to believe” standard applied in other statutes. Jim 

Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990) (“there is virtually no rational 

basis for distinguishing between the stringency of this standard and the ‘reasonable cause to 

believe’ standard”); Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC, 34 FMSHRC 

1875, 1877 (Aug. 2012) (other citations omitted). The Commission has noted that in the context 

of a petition for interim injunctive relief under the National Labor Relations Act (“NLRA”), 29 

U.S.C. § 160(j), courts have recognized that establishing “reasonable cause to believe” that a 

violation of the statute has occurred is a “relatively insubstantial” burden. Argus Energy, 34 

FMSHRC at 1878 (citing Schaub v. W. MI Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th 

Cir. 2001). The Commission stated that in Schaub, “the Court explained that the proponent ‘need 

not prove a violation of the NLRA nor even convince the district court of the validity of the 

Board’s theory of liability; instead he need only show that the Board’s legal theory is substantial 

and not frivolous.”’ Id. (citations omitted). It noted that the Court cautioned: 

An 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. See Fleischut [v. Nixon Detroit Diesel, 

Inc., 859 F.2d 26, 29 (6th Cir. 1988)] (stating that the appellant’s appeal did not 

seriously challenge whether reasonable cause exists; instead it simply showed 

that a conflict in the evidence exists); Gottfried [v. Frankel, 818 F.2d 485, 494 

(6th Cir. 1987)] (same). Rather, so long as facts exist which could support the 

(continued...) 

42 FMSHRC Page 651
Of course, the opinions of any two Commissioners, as with the views of Commissioners 

Althen and Young recounted here, when unaccompanied by other Commission majority 

decisions subscribing to such views, is of no precedential value. Commissioner Young has 

observed this in The American Coal Co., 35 FMSHRC 380 (Feb. 2013) (“American Coal ”), 

expressing that: 

the Secretary was unable to persuade a majority of the Commission of the 

propriety of that definition then, at least in Phelps Dodge flaming combustion was 

the actual hazard occasioned by a stubborn grease fire ignited by cutting a piece 

of mining equipment with a torch. Id. at 647. Two Commissioners rejected then 

the imposition of a relevant broader definition, in part based on a reasonable 

concern about unintended consequences. See id. at 663 (Duffy and Young, 

concurring) (“Far-ranging conclusions, not necessary to the disposition of issues 

presented to the reviewing court in one case, may, ironically, end up constricting 

7

 (...continued) 

Board’s theory of liability, the district court’s findings cannot be clearly 

erroneous. Fleischut, 859 F.2d at 29; Gottfried, 818 F.2d at 494. 

Id. (citations omitted). 

Similarly, 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 744. As the Commission has recognized, “[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.” Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 

719 (July 1999). The Commission applies the substantial evidence standard in reviewing the 

Judge’s determination. Sec’y of Labor on behalf of Bussanich v. Centralia Mining Co., 22 

FMSHRC 153, 157 (Feb. 2000). 

 

While an applicant for temporary reinstatement need not prove a prima facie case of 

discrimination, it is useful to review the elements of a discrimination claim in order to assess 

whether the evidence at this stage of the proceedings meets the non-frivolous test. CAM Mining, 

LLC, 31 FMSHRC 1085, 1088 (Oct. 2009). In order to establish a prima facie case of 

discrimination under section 105(c) of the Mine 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, 2799 (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 Commission has identified the following indicia of discriminatory intent to establish 

a nexus between the protected activity and the alleged discrimination: (1) knowledge of 

protected activity; (2) hostility or animus toward the protected activity; (3) coincidence in time 

between the protected activity and the adverse action; and (4) disparate treatment of the 

complainant. CAM Mining, 31 FMSHRC at 1089 (other citations omitted).” Shaffer at 41-43. 

42 FMSHRC Page 652
the court’s discretion in subsequent cases where the facts may be significantly 

different. 

Id. at 390 (Commissioner Young, concurring in part and dissenting in part) (emphasis added).8

The Court’s Research of Commission Case Law on Applications for Temporary 

Reinstatement and the Term “preponderance of evidence.” 

The Court’s research revealed fifteen (15) cases where the phrase “preponderance of 

evidence” was expressed, but only in Shaffer has the term been employed to an applicant for 

temporary reinstatement. What follows are the cases uncovered by the Court’s review. 

In Cobra Natural Resources, LLC, 35 FMSHRC 394 (Feb. 2013), a temporary 

reinstatement proceeding, the Commission employed the phrase, but in the context of an 

operator affirmatively proving that a layoff justifies tolling temporary reinstatement by a 

preponderance of the evidence. Id. at 397 (citing Gatlin, 31 FMSHRC at 1055). 

In KenAmerican Resources, 31 FMSHRC 1050 (Oct. 2009), also a temporary 

reinstatement proceeding, the issue of whether the duration of a temporary reinstatement should 

be modified was involved. There, the Commission instructed that the judge “should determine 

whether [the mine operator] KenAmerican has proven by a preponderance of the evidence that 

the occurrence of the layoff is a legitimate reason for tolling Mr. Gatlin’s economic 

reinstatement. ... In sum, in order to justify termination of economic reinstatement, 

KenAmerican must prove by a preponderance of the evidence that Mr. Gatlin’s inclusion in the 

layoff was entirely unrelated to his protected activities.” Id. at 1055 (emphasis added).9 

8

 By analogy, this is in keeping with the somewhat related concept that where two 

Commissioners vote to grant a motion and two to deny, the original decision stands. See, e.g., 

Sec'y of Labor on behalf of McGary v. Marshall County Coal Co., 40 FMSHRC 767, 768 (June 

28, 2018) (Commissioners Jordan and Cohen, in favor of denying the stay and then Acting 

Chairman Althen and Commissioner Young, in favor of granting the stay). 

9

 A few of the cases found by the Court have been relegated to this footnote as follows. 

In the temporary reinstatement proceeding in North Fork Coal Corp., 33 FMSHRC 27 (Jan. 

2011), a majority of the Commission held that the miner’s reinstatement was not dissolved 

following the Secretary of Labor’s decision to not pursue the full discrimination proceeding. 

The miner, however, as permitted under the statutory scheme, then filed his own action under 

section 105(c)(3). Commissioners Young and former Commissioner Duffy dissented on that 

outcome, but as it pertains to this review, “preponderance of the evidence” only arose in the 

context of those dissenting commissioners referring to the Secretary’s burden of proof in the full

discrimination proceeding. Id. at 55. In Lehigh Cement Co., 2020 WL 4366183 (July 2020), a 

unanimous Commission concluded that the judge erred in tolling a miner’s economic 

reinstatement. Here again, although the phrase “preponderance of the evidence” was invoked, it 

was to point out that “[o]perators bear the burden of showing by a preponderance of the 

evidence that tolling is justified.” Citing, Sec’y of Labor on behalf of Ratliff v. Cobra Natural 

(continued...) 

42 FMSHRC Page 653
In C.R. Meyer and Sons Co., 35 FMSHRC 1183 (May 2013), yet another temporary 

reinstatement proceeding, the question of tolling the reinstatement obligation was again 

involved. The phrase “preponderance of the evidence” arose there, but again only in the context 

of the mine operator’s burden, with the Commission stating “[s]hould the Secretary fail to 

sufficiently establish the possibility that any inclusion of Rodriguez in the layoff might have 

been motivated by the miner’s protected activity, the judge must then consider the entire record 

and determine whether the operator has proven by a preponderance of the evidence that the 

layoff of local miners, ... justifies tolling its obligation to temporarily reinstate [the miner].” Id.

at 1188 (emphasis added). 

In the temporary reinstatement proceeding of CalPortland, 38 FMSHRC 137, (Feb. 

2016), a Commission majority affirmed the miner’s temporary reinstatement. In that case 

Commissioner Althen dissented on grounds not pertinent to this review of cases, referring to the 

“preponderance of the evidence,” but his remark was in the context of a full discrimination 

proceeding, that “if the Secretary or [the miner] can prove by a preponderance of evidence that 

CalPortland refused to hire [the miner] based on protected activity, [the miner] will be entitled 

to full relief under section 105(c). Id. at 148, n. 1 

Sec’y of Labor obo Williamson v. CAM Mining, 31 FMSHRC 1085 (Oct. 2009), is yet 

another temporary reinstatement matter but it is of particular importance regarding the 

preponderance of evidence applicability in such matters. There, an administrative law judge 

denied reinstatement, a decision the Commission reversed and for which it ordered the 

immediate reinstatement of the miner. Pointedly all four members then composing the 

Commission, which group included Commissioner Young, stated: “we note that evidence that 

Williamson was discharged for unprotected activity relates to the operator’s rebuttal or 

affirmative defense. In essence, the judge weighed the operator’s rebuttal or affirmative defense 

evidence against the Secretary’s evidence of a prima facie case. In doing so, the judge erred by 

assigning a greater burden of proof than is required. In a temporary reinstatement 

proceeding, the Secretary need not establish a prima facie case of discrimination by a 

preponderance of the evidence. Rather, the Secretary was required to prove only that a 

 

9

 (...continued) 

Res., LLC, 35 FMSHRC 394, 397 (Feb. 2013). Id. at *3 (emphasis added). Note, in a related 

Lehigh Cement Co. case, 2020 WL 4366184 (July 2020), distinctive only in that a different 

docket number was involved, the same result was reached. In Robinette v. United Castle Coal, 3 

FMSHRC 803, (April 1981), the Commission remanded to address an aspect of the 

discrimination issue. For the purposes of this review, the phrase “burden of proof” only arose in 

a footnote analogy concerning unfair labor practices in NLRB matters and therefore is of no 

consequence to this review. Id. at 818, n. 20. Last, in Contractors Sand and Gravel, 20 

FMSHRC 960, (Sept. 1998), that case too is only tangential to this review because its thrust 

concerned the recovery of attorney’s fees and expenses under the Equal Access to Justice Act. 

In speaking to that issue, the Commission found that the Secretary’s position had a reasonable 

basis in fact and rejected the contention that the Secretary had to establish its position under the 

preponderance of evidence standard. Id. at 973. 

42 FMSHRC Page 654
non-frivolous issue exists as to whether Williamson’s discharge was motivated in part by 

his protected activity. Id. at 1091, also citing, Chicopee Coal Co., 21 FMSHRC at 719 

(emphasis added). 

In Reading Anthracite, 22 FMSHRC 298, (Mar. 2000), involved was a review by the 

Commission vacating a judge’s determination that Reading did not violate the Act’s section 

10(c) discrimination provision. There the miner had been previously temporarily reinstated. 

Reference to the preponderance of the evidence appears only in the dissent. However, the dissent 

was somewhat atypical because the dissenting commissioners agreed that the judge erred; their 

dissent was that it was unnecessary to send the matter back to the judge and that the judge’s 

decision could simply be reversed, finding in favor of the complainant miner. The dissenting 

commissioners reminded that the mine operator, “Reading must prove its affirmative defense by 

a preponderance of the evidence,” Id. at 314, citing (Sec’y of Labor on behalf of Price v. Jim 

Walter Resources, Inc., 14 FMSHRC 1549, 1556 (Sept. 1992)). (“Price and Vacha”). 

Speaking of Price and Vacha, four members of the Commission, affirming the judge’s 

decision upon remand that Jim Walter Resources discriminatorily applied its drug program 

against the complainants, referred to the “preponderance of the evidence” but in the context of 

the mine operator’s burden in its affirmative defense, stating: “[a]n operator must prove this 

affirmative defense by a preponderance of the evidence. E.g., Eastern Associated Coal, 813 F.2d 

at 642.” 14 FMSHRC 1549 at 1556. 

In Sec’y of Labor on behalf of Bernardyn v. Reading Anthracite, 23 FMSHRC 924, (Sept. 

2001), the Commission again remanded the matter to the administrative law judge, after that 

judge again found no violation of section 105(c)(1). This decision reiterates the point made in 

Price and Vacha, and cites to that decision for the principle that in order “[t]o make out its 

affirmative defense, the operator must prove by a preponderance of the evidence that it would 

have taken the adverse action in any event because of unprotected activity alone. Id. at 929. 

(emphasis added). 

Hopkins County Coal, 38 FMSHRC 1317 (June 2016) is yet another decision by the 

Commission which refers to the phrase “preponderance of the evidence,” but its use is not of 

value to this discussion, as it employed the phrase only in the context of the Secretary’s burden 

to establish the validity of a section 104(b) order, a burden which the Secretary met. The 

discrimination matter involved a separate dispute. It involved violations which were issued in 

response to the mine’s refusal to release personnel records to inspectors as part of an MSHA 

discrimination investigation, records which the Secretary sought in order to determine whether 

there was a violation of the anti-discrimination provisions of the Act. Three commissioners, 

which is to say a majority, affirmed that the order was validly issued. Commissioners Althen and 

Young dissented, but they made no mention to the preponderance of the evidence, although they 

believed that the Secretary “utterly failed to carry his burden of proof of showing a reasonable 

basis for the document demand.” Id. at 1338. In making no mention of the burden of proof, even 

when they were referencing temporary reinstatements, the dissenters, Commissioners Althen and 

Young, described for that process that “MSHA’s preliminary investigation “must determine only

whether there may be validity to the miner’s claim, or in other words, that the claim was ‘not 

frivolously brought.” Id. at 1344, n.9. (emphasis in original). 

42 FMSHRC Page 655
From the foregoing, it can be seen that invoking “preponderance of the evidence” in the 

context of an application for temporary reinstatement has no place in the determination of 

whether a claim is not frivolously brought. Even the Commission itself, through the vehicle of a 

majority opinion, has acknowledged this to be the case. Sec’y of Labor on behalf of Williamson 

v. Cam Mining, 31 FMSHRC 1085 (Oct. 2009), supra. This makes sense as a general matter as 

well, since establishing a fact by a preponderance of the evidence means to prove that the fact is 

more likely true than not true. Fischl v Armitage, 128 F.3d 50, 55 (2d Cir. 1997). That burden is 

decidedly not required in a temporary reinstatement proceeding. In fact, it is inappropriate to 

engage in such determinations. Mixing the concepts of “not frivolously brought” with 

“preponderance of the evidence” is inappropriate, as they are mutually exclusive concepts in the 

context of temporary reinstatement applications and doing so introduces a layer of consideration 

which can only invite conflict.10

Summary of the Court’s Conclusions and Findings Regarding Complainant William R. 

Whitmore’s Application for Temporary Reinstatement 

The Court finds that the credible evidence adduced during the temporary reinstatement 

hearing established, writ large, that William Whitmore’s application for temporary reinstatement 

was not frivolously brought. 11 Mr. Whitmore’s testimony was not demonstrably false, nor 

10 Although the Court’s exposition of the Commission’s case law regarding temporary 

reinstatement is dispositive, it is noted that in other non-mine safety and health matters, courts 

have eschewed comingling the concepts of preponderance of evidence and frivolousness. For 

example, in National Labor Relations matters pertaining to temporary injunctive relief, the 5th

Circuit observe that it was not their duty at that “juncture to pass upon whether violations have 

been established by a preponderance of the evidence, but merely to decide that the Board’s 

theories are substantial and not frivolous.” Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 

1191 (5th Cir. 1975). 

11 The Court received a “Post-Hearing Statement” from the Respondent. (“R’s 

Statement”). The parties representing the Complainant were given an opportunity to respond and 

declined to do so. The Court finds that the Complainant’s representatives’ decision to not 

respond is understandable, given the record testimony. Further, the body of this decision ordering 

Mr. Whitmore’s immediate reinstatement effectively addresses the contentions raised by the 

Respondent. However, the Court makes the following additional comments about the R’s 

Statement. Respondent raises two challenges in an attempt to show that the application is 

frivolous. First, Respondent contends that Complainant’s April 6, 2020 email expressing his 

concern about a contractor employee and whether that individual was practicing social distancing 

in light of COVID 19 did not constitute protected activity. R’s Statement at 5. The Court does 

not agree. The Court refers the reader to the transcript summary above. By raising his concern, 

the Complainant was voicing a health concern, which constitutes protected activity. The 

Respondent then states that such a concern may be analogized to a protected work refusal. Id. 

From that argument, the Respondent seems to argue that a miner’s expressed health concern, 

when not specifically covered by a standard, evaporates once the miner has been given 

reassurance about the concern. The analogy does not hold up; Whitmore did not make a work 

 

 (continued...) 

42 FMSHRC Page 656
patently incredible, nor obviously erroneous. The Court finds that the testimony mustered by 

Whitmore presented evidence sufficient to support a conclusion that he engaged in protected 

activity, that he suffered an adverse employment action, and that the adverse action was 

motivated at least in part by that activity and in light of that, established that his complaint was 

not frivolously brought.12 

 The Application for Temporary Reinstatement is hereby GRANTED. Immediately upon 

receipt of this decision Respondent is ORDERED to reinstate Complainant William R. 

Whitmore to his former position at the mine, or to a comparable position within the same 

commuting area at the same rate of pay and benefits he received prior to his discharge, pending a 

final Commission order on the discrimination complaint. The court retains jurisdiction over this 

temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e)(4). 

 11 (...continued) 

refusal in connection with his expressed health concern. Further, expressing his concern was 

protected activity and its status as such remained so, even if the employer addressed it. 

Respondent’s second contention is that without showing that the Respondent’s decisionmakers, meaning the two individuals who decided to fire the Complainant, knew of, that is to say 

“had knowledge of” Whitmore’s several instances of protected activity, the complaint is 

frivolous. Respondent asserts that the only evidence of record is that the two individuals who 

decided to fire Whitmore testified that they knew nothing of his protected activities and 

terminated him solely on another basis, as described above in the body of this decision. As such, 

Respondent asserts that, their decision being pure of any protected activity knowledge, makes 

Whitmore’s complaint frivolous. Id. 7-9. As the discussion of the applicable case law, set forth 

above, makes clear, the temporary reinstatement application proceeding may not be based on 

such claims, as it would transform the proceeding into resolving conflicts in testimony. Such a 

conflict is plainly present. A conflict can exist in less direct forms than a contention and a denial. 

Thus, the mere assertion by two witnesses maintaining certain factual contentions, even if not 

specifically denied, can still present a conflict, when viewed from the perspective of the entire 

record. In short, a conflict can exist in more subtle forms than an assertion and a parallel denial. 

At this stage, made for the purpose of determining only non-frivolity, it is not required for the 

Complainant to establish that the two individuals made their decision on grounds beyond their 

claimed basis. Instead, again as plainly described above, the Complainant established multiple 

instances of protected activity, each of which the Court found to be have been communicated, 

that he suffered the adverse action of termination, and that such termination occurred within a 

short period of time following expression of his safety and health concerns. “Requiring the Judge 

to resolve alleged inaccuracies and conflicts in testimony when the parties have not yet 

completed discovery would improperly transform the temporary reinstatement hearing into a 

hearing on the merits.” Sec. obo Deck v FTS Int’l, 34 FMSHRC 2388, 2391 (Sept. 2012), citing 

Chicopee Coal, 21 FMSHRC at 719; CAM Mining, 31 FMSHRC at 1088-89. 

12 It is worth restating that in the context of an application for temporary reinstatement 

the test is not whether there is sufficient evidence of discrimination to justify permanent 

reinstatement. 

42 FMSHRC Page 657
Per 30 U.S. Code § 815, titled, “Procedure for enforcement,” and in particular, subsection 

(c)(3) of the section, the Secretary is directed to comply with that provision which commands 

that “[w]ithin 90 days of the receipt of a complaint filed under paragraph (2)[of subsection (c)], 

the Secretary shall notify, in writing, the miner, applicant for employment, or representative of 

miners of his determination whether a violation has occurred.” (emphasis added). The Secretary 

shall diligently pursue completion of the investigation in the underlying discrimination 

complaint. Immediately upon completion of the investigation, the Secretary SHALL notify 

counsel for Yager Materials Corp. and this court, in writing, whether a violation of Section 

105(c) of the Mine Act has occurred. The Court considers the Secretary’s duty to comply with 

this provision to be of high importance. The mine operator’s rights in defending against the 

discrimination claim are significantly affected by delays in meeting this statutory deadline. 

SO ORDERED. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Thomas J. Motzny, Esq., Office of the Solicitor, U. S. Department of Labor, U. S. Department of 

Labor, 618 Church Street, Suite 230, Nashville, TN 37219 motzny.thomas.j@dol.gov 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 tonyoppegard@gmail.com 

Wes Addington, Esq., Appalachian Citizens’ Law Center, 317 Main Street, Whitesburg, KY 

41858 wes@aclc.org 

Arthur M. Wolfson, Esq., Fisher & Phillips, LLP, Six PPG Place, Suite 830, Pittsburg, PA 15222 

awolfson@fisherphillips.com 

42 FMSHRC Page 658
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th ST. SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 FAX: 303-844-5268 

August 7, 2020 

DECISION ON REMAND

Before: Judge Miller 

This case is before me upon petition for assessment of a civil penalty filed by the 

Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815(d) (“the Act”). This case was remanded by the Commission to determine 

an appropriate civil penalty for Citation No. 8502992, issued pursuant to Section 103(a), with a 

total proposed penalty of $18,742.00. 

I. HISTORY OF THE CASE 

This case was originally assigned to Administrative Law Judge L. Zane Gill. On July 24, 

2015, KenAmerican Resources (“KenAmerican”) filed a motion for summary judgment, alleging 

that the Secretary’s claims were unsubstantiated and that there was no violation of section 103(a) 

of the Mine Act. That section of the act, states in pertinent part that “no advance notice of an 

inspection shall be provided to any person,” 30 U.S.C. § 813. KenAmerican’s motion was 

granted and the citation was vacated. Sec’y of Labor v. KenAmerican Resources, Inc., 37 

FMSHRC 1809 (Aug. 2015) (ALJ). On August 25, 2016, following a petition for discretionary 

review, the Commission found that the summary decision was improper and reversed and 

remanded the case with instructions to hold a hearing. Sec’y of Labor v. KenAmerican 

Resources, Inc., 38 FMSRC 1943 (Aug. 2016). After an evidentiary hearing of the case, Judge 

Gill issued a decision on December 14, 2018, finding that the Secretary failed to establish a 

violation. Sec’y of Labor v. KenAmerican Resources, Inc., 40 FMSHRC 1544 (Dec. 2018) (ALJ). 

Following Judge Gill’s decision, the Commission granted the Secretary a second petition 

for discretionary review. After briefing and argument, the Commission determined that a 

violation had occurred as set forth in the citation issued by the Secretary and determined that the 

case should be remanded for the assessment of a penalty consistent with section 110(i) of the 

Act. 30 U.S.C. § 821(i). The Commission decision constitutes the law of the case. See Pepper 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

KENAMERICAN RESOURCES, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. KENT 2013-0211 

A.C. No. 15-17741-305075 

Mine: Paradise #9 

42 FMSHRC Page 659
v. United States, 131 S. Ct. 1229, 1250 (2011). Following the unexpected passing of Judge Gill 

on June 23, 2020, this case was reassigned to determine the appropriate penalty. For the reasons 

set forth below, I assess the penalty in the amount proposed by the Secretary. 

II. ISSUE ON REMAND 

On April 20, 2012, MSHA Inspector Doyle Sparks and six other inspectors traveled to 

KenAmerican’s Paradise #9 mine to conduct an investigation in response to a complaint of an 

alleged hazardous condition. Before the inspectors traveled into the mine to begin their 

investigation, MSHA inspectors instructed the miners on the surface not to warn underground 

personnel that MSHA inspectors were present. While inspector Sparks monitored the mine’s 

communication system, he heard an exchange between two miners that appeared to be providing 

advance notice to the miners underground. Sparks overheard a call from the #4 unit in which a 

miner asked the dispatcher if there was “company outside,” to which the dispatcher responded, 

“yeah, I think there is.” Tr. 23-24, 163-164. Sparks asked the underground miner to identify 

himself, but received no response. Once underground, Sparks made a second attempt to identify 

the miner, but again received no response. The Commission found that Holz, the dispatcher, 

agreed that a miner asked him if “company” was outside and that he understood the unidentified 

miner’s question to be an inquiry into the presence of MSHA inspectors. “Therefore, he knew 

the question presented a request for advance notice.” Sec’y of Labor v. KenAmerican Resources, 

Inc., 42 FMSHRC 1, slip op. at 2, No. KENT 2013-0211 (Jan. 16, 2020). 

Sparks issued Citation No. 8502992 to Respondent pursuant to Section 103(a) of the 

Mine Act alleging that mine personnel provided advance notice to underground miners that 

MSHA inspectors were on site during a hazard complaint inspection. Tr.10. Section 103(a) of the 

Mine Act authorizes the mine inspectors to conduct inspections and investigations of coal and 

other mines. This section also requires that “In carrying out the requirements of this subsection, 

no advance notice of an inspection shall be provided to any person....” Similarly, a person who 

provides advance notice of an inspection may face the possibility of a criminal prosecution. 30 

U.S.C 820(3). The citation, after amendment, was issued as a significant and substantial violation 

and the result of high negligence. The Commission upheld the citation as issued and remanded 

the case solely for the assessment of civil penalty. The penalty assessment is based upon the 

Commission’s decision on remand and the record in its entirety, including the hearing transcript 

and the briefs filed by the parties in the case. 

III. PENALTY 

The principles governing the authority of Commission Administrative Law Judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). Commission Judges are not bound by the Secretary’s 

penalty regulations. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act 

requires that in assessing civil monetary penalties, the judge must consider six statutory penalty 

criteria: the operator’s history of violations, its size, whether the operator was negligent, the 

effect on the operator’s ability to continue in business, the gravity of the violation, and whether 

the violation was abated in good faith. 30 U.S.C. § 820(i). 

42 FMSHRC Page 660
The Secretary has proposed a penalty of $18,742.00 for the violation. I have considered 

and applied the six penalty criteria found in Section 110(i) of the Act. I have reviewed the history 

of this operator and taken note of the fact that two mine superintendents and a foreman were 

previously convicted of the crime of providing advance notice at this mine.1 I have also 

considered that this is a large-sized operator, and that the parties have stipulated to the ability to 

pay. No issue was raised by either party about a lack of good faith abatement. 

The violation was assessed as significant and substantial and was the result of high 

negligence. The Commission made no change to these findings in its decision and I accept the 

findings in determining a penalty. The violation was significant and substantial, given the 

importance placed on the notice requirement in the Act and that providing notice could result in a 

criminal prosecution. In addition, giving advance notice allows a mine operator the opportunity 

to alter violative conditions prior to the arrival of an MSHA inspector and allows the 

continuation of operations under violative conditions after an inspector departs. Therefore, the 

gravity of the violation is serious, and the penalty is intended to reflect that it is serious. 

The Commission has recognized that “[e]ach mandatory standard ... carries with it an 

accompanying duty of care to avoid violations of the standard, and an operator’s failure to meet 

the appropriate duty can lead to a finding of negligence if a violation of the standard occurs.” 

A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met its 

duty of care, the judge must consider “what actions would have been taken under the same 

circumstances by a reasonably prudent person familiar with the mining industry, the relevant 

facts, and the protective purpose of the regulation.” Newtown, 38 FMSHRC at 2047; Brody 

Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); U.S. Steel Corp., 6 FMSHRC 1908, 1910 

(Aug. 1984). While the Secretary’s Part 100 regulations evaluate negligence based on the 

presence of mitigating factors, Commission judges are not limited to that analysis. Brody, 37 

FMSHRC at 1702-03. Rather, Commission judges consider “the totality of the circumstances 

holistically” and may find high negligence in spite of mitigating circumstances. Id. at 1702. The 

Commission has recognized that “the gravamen of high negligence is that it ‘suggests an 

aggravated lack of care that is more than ordinary negligence.’” Id. at 1703 (quoting Topper 

Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)). 

In reviewing the record as a whole and the Commission decision, I find that the 

designation of high negligence is well supported. The record clearly indicates that an affirmative 

response was provided to a request for advance notice from an underground miner, even after the 

inspectors warned the miners at the surface not to engage in that conduct. Management’s failure 

to instruct or ensure that no advance notice was given prior to inspections constitutes more than 

ordinary negligence. See Ky. Fuel Corp., 40 FMSHRC 28 (Feb. 2018) (in which the Commission 

approved a judge’s decision that similarly concluded that high negligence was appropriate due 

largely to an operator’s failure to provide adequate training and materials to prevent a violation). 

A finding of high negligence is further supported by the circumstances surrounding the violation, 

in particular the unidentified miner’s refusal to identify himself on the phone or in person when 

1 See KenAmerican Resources, slip op. at 5 (Jan. 16, 2020)(noting that “two mine 

superintendents and a foreman working at the Paradise No. 9 mine were previously convicted of 

the crime of providing advance notice.” (citing United States v. Gibson, 409 F.3d 325, 333 (6th

Cir. 2005)). 

42 FMSHRC Page 661
Sparks arrived underground and Holz’s admission that he knew he was prohibited from 

providing advance notice of MSHA’s presence to underground miners. 

IV. ORDER

I have reviewed the record in its entirety and find that the Secretary’s proposed penalty is 

appropriate in this case. Accordingly, Respondent is hereby ORDERED to pay the Secretary of 

Labor the sum of $18,742.00 within 30 days of the date of this decision. 

 /s/ Margaret A. Miller 

 Margaret A. Miller 

Administrative Law Judge 

Distribution: (Electronic Mail with Appeal cover sheet) 

Emily Toler Scott, Ali A. Beydoun, April Nelson, U.S. Department of Labor, Office of the 

Solicitor, 201 12th Street South, Suite 401, Arlington, VA 22202-5450 

Scott.emily.t@dol.gov, beydoun.ali@dol.gov, nelson.april@dol.gov 

Melanie Garris, U.S. Department of Labor, MSHA, Office of Civil Penalty Compliance, 201 12th

Street South, Suite 401, Arlington, VA 22202-5450, garris.melanie@dol.gov 

Jason Hardin, Artmeis Vamianakis, Fabian VanCott, 215 South State Street, Suite 1200, 

Salt Lake City, UT 84111-2323, jhardin@fabianlaw.com, avamianakis@fabianlaw.com 

42 FMSHRC Page 662
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th ST. SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

August 12, 2020 

DECISION ON REMAND 

Before: Judge Simonton 

 This case is before me upon remand from the Commission. Peabody Midwest Mining, 

LLC, 42 FMSHRC___, slip. op. at 11 (June 2, 2020). It involves a petition for assessment of a 

civil penalty filed by the Secretary of Labor through the Mine Safety and Health Administration 

(“MSHA”) against Peabody Midwest Mining, LLC (”Peabody” or “Respondent”), pursuant to 

section 104(d)(1) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 

814(d)(1). 

I. HISTORY OF THE CASE 

On July 17, 2017, MSHA issued Citation No. 9105403 to Peabody for a violation of 

section 316(b) of the Mine Improvement and New Emergency Response Act of 2006 (“MINER 

Act”), which requires every underground coal mine to develop a written plan to provide for the 

evacuation of all individuals in an emergency and provide for the maintenance of miners trapped 

underground where evacuation is not possible. 30 U.S.C. § 876(b). Peabody’s Emergency 

Response Plan (“ERP”) requires two properly positioned refuge chambers, sufficient to shelter 

all the miners present in the event of an emergency, even during a shift change when two teams 

of 15 miners would be present. Ex. S–3. It states that refuge chambers “will not be placed in the 

direct line of sight of the working face.” However, at the time of inspection, one refuge chamber 

was in the travelway in the direct line of sight of the working face and in violation of the ERP. 

Ex. R–A; Tr. 27–29. The inspector designated the citation significant and substantial (“S&S”), 

reasonably likely to be fatal, and the result of Peabody’s high negligence and unwarrantable 

failure to comply with the Mine Act. Ex. S–1. The Secretary proposed a civil penalty of 

$44,546.00. 

Peabody contested the S&S, negligence, unwarrantable failure designation, and the 

penalty. Respondent’s Post-Hearing Brief at 10. A violation is S&S “if based upon the particular 

facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably serious nature.” Cement Division, National 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

PEABODY MIDWEST MINING, LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2017-0450 

A.C. No. 12-02295-447106 

Mine: Francisco Underground Pit 

42 FMSHRC Page 663
Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). I determined that the violation was S&S because 

the Secretary proved the four elements of the Mathies test: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to safety—

contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will 

result in an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984). In analyzing the 

second criterion, I acknowledged the Commission’s recognition in past cases that “emergency 

standards are different from other mine safety standards because they are intended to apply 

meaningfully only when an emergency actually occurs.” IGC Illinois, LLC, 38 FMSHRC 2473, 

2476 (Oct. 2016) citing Cumberland Coal Res., LP, 33 FMSHRC 2357, 2367 (Oct. 2011), aff’d

717 F.3d 1020 (D.C. Cir. 2013). Because Commission precedent directs judges to assume the 

existence of a contemplated emergency when defining the hazard contributed to by a violation, 

see, e.g., ICG Illinois, LLC, 38 FMSHRC at 2476, I assumed an emergency in which evacuation 

was impossible and the refuge chamber was necessary. 

Testimony at the hearing established that the ERP prohibits positioning the refuge 

chamber in the direct line of sight of the working face because an explosion traveling out could 

damage or destroy the chamber. Tr. 29–30, 84–85. In presuming the occurrence of a fire or 

ignition significant enough to prevent miners from evacuating, I found that all four elements of 

the Mathies test were satisfied and thus the violation was S&S. I affirmed the citation as written 

and assessed a penalty of $50,000.00. 40 FMSHRC 861 (June 2018) (ALJ). 

Following the issuance of my June 28, 2018 decision after hearing, Peabody appealed the 

decision to the Commission. It did not contest the fact of violation or the unwarrantable failure 

designation, but challenged the citation’s Significant and Substantial (“S&S”) designation. Upon 

review, the Commission reversed the S&S designation. 42 FMSHRC___, slip op. at 10–11. In 

doing so, it reviewed S&S precedent and restated the proper test for an S&S violation: 

In order to establish that a violation of a mandatory safety standard is significant 

and substantial, the Secretary of Labor under National Gypsum must prove: (1) 

the underlying violation of a mandatory safety standard; (2) the violation was 

reasonably likely to cause the occurrence of the discrete safety hazard against 

which the standard is directed; (3) the occurrence of that hazard would be 

reasonably likely to cause an injury; and (4) there would be a reasonable 

likelihood that the injury in question would be of a reasonably serious nature. 

Id. at 5. Because more than 15 miners were only present during shift changes when no mining 

activities were occurring, the Commission determined that the one properly-placed refuge 

chamber was sufficient for the contemplated emergency because an explosion was only ever 

likely during mining activities. Id. at 8–10. The Commission remanded the case for reassessment 

of the civil penalty in accordance with its decision. 

42 FMSHRC Page 664
II. PENALTY 

 It is well established that Commission administrative law judges have the authority to 

assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5 

FMSHRC 287, 291 (Mar. 1983). Commission Judges are not bound by the Secretary’s penalty 

regulations. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act requires that 

in assessing civil monetary penalties, the Commission ALJ shall consider the six statutory 

penalty criteria: 

(1) the operator’s history of previous violations, (2) the appropriateness of such 

penalty to the size of the business of the operator charged, (3) whether the 

operator was negligent, (4) the effect on the operator’s ability to continue in 

business, (5) the gravity of the violation, and (6) the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of 

a violation. 

30 U.S.C. § 820(i). 

 I have considered and applied the six penalty criteria. In the fifteen months preceding the 

issuance of this citation, Peabody averaged 0.59 violations per inspection day and had only one 

previous violation of section 316(b). The mine is a large operator and the parties stipulated that 

the Secretary’s proposed penalty of $44,546.00 would not affect Peabody’s ability to remain in 

business. The high negligence designation was not challenged on appeal and remains unaffected 

by the Commission’s decision. The Commission has determined that this violation is not S&S, so 

the gravity involved is less severe than originally designated in the citation and affirmed in my 

initial decision. Relatedly, as a result of the S&S designation being vacated, the violation must be 

reclassified as a section 104(a) citation, which effectively removes the unwarrantable failure 

determination. Peabody immediately worked to abate the condition following the issuance of the 

citation. Tr. 62-63, 150, 172. However, it also admitted that the refuge chamber would have 

remained in the direct line of sight of the working face for a couple of days if not for the citation. 

Tr. 150. 

I remain convinced that Peabody’s failure to follow its own ERP by placing a refuge 

chamber in direct line of sight of the working face constitutes an extremely serious violation. 

After considering the penalty criteria in light of the Commission’s decision, I find that a penalty 

of $35,000 is appropriate. 

42 FMSHRC Page 665
III. ORDER 

 Because the citation’s S&S designation has been eliminated, it is hereby ORDERED that 

Citation No. 9105403 be changed from a section 104(d)(1) citation to a section 104(a) citation. 

Peabody Midwest Mining, LLC is ORDERED to pay the Secretary of Labor the sum of $35,000 

within 30 days of this decision. 1 

 /s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (Email2

) 

R. Henry Moore, Fisher & Phillips, LLP, hmoore@fisherphillips.com 

Arthur M. Wolfson, Fisher & Phillips, LLP, awolfson@fisherphillips.com 

Andrew R. Tardiff, Office of the Solicitor, U.S. Department of Labor, tardiff.andrew.r@dol.gov 

1 Please pay penalties 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. 

2 For the foreseeable future, Federal Mine Safety and Health Review Commission 

(FMSHRC) notices, decisions, and orders will be sent only through electronic mail. Because 

FMSHRC will not be monitoring incoming physical mail or faxes, parties are encouraged to 

submit all filings through the agency’s electronic filing system. If you are not able to file through 

our electronic filing system, please send an email copy and we will file it for you.

42 FMSHRC Page 666