i 

May and June 2019 

TABLE OF CONTENTS

COMMISSION ORDERS 

05-02-19 RAIN FOR RENT WEST 2016-730-M Page 243 

05-22-19 INDUSTRIAL PROCESS 

EQUIPMENT CONSTRUCTORS 

LAKE 2018-302-M Page 245

05-22-19 MACH MINING, LLC LAKE 2018-304 Page 248

05-22-19 PEABODY TWENTYMILE MINING 

LLC 

WEST 2018-410-M Page 251

05-22-19 NEW GOLD NEVADA, INC. WEST 2018-430-M Page 254

05-22-19 UPLAND ROCK, INC. WEST 2018-452-M Page 258

05-22-19 CANYON FUEL COMPANY, LLC WEST 2019-270 Page 261

05-22-19 KINGSTON MINING, INC. WEVA 2018-480 Page 264

05-22-19 WOLF RUN MINING, LLC WEVA 2018-622 Page 267

06-06-19 AMERICAN AGGREGATES OF 

MICHIGAN, INC. 

LAKE 2018-0340 Page 270

06-19-19 STONE ZONE CENT 2018-412-M Page 272
ii 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-20-19 PEABODY MIDWEST MINING, 

LLC 

LAKE 2016-0305 Page 279

YAHARA MATERIALS, INC. LAKE 2019-0025 Page 309

CONSOL BUCHANAN MINING 

COMPANY, LLC 

VA 2012-0042 Page 312

06-24-19 HOPEDALE MINING LLC LAKE 2019-0149 Page 322

06-27-19 PEABODY MIDWEST MINING, 

LLC 

LAKE 2018-0159 Page 340

06-27-19 CONSOL PENNSYLVANIA COAL 

COMPANY, LLC 

PENN 2018-0116 Page 357

ADMINISTRATIVE LAW JUDGE ORDERS 

05-22-19 THE MONONGALIA COUNTY 

COAL COMPANY, successor to 

CONSOLIDATION COAL 

COMPANY 

WEVA 2015-0074 Page 377

05-24-19 AMERICAN AGGREGATES OF 

MICHIGAN, INC. 

LAKE 2018-0340 Page 382

05-24-19

06-11-19
iii 

Review was granted in the following case during the month of June 2019: 

Secretary of Labor v. American Aggregates of Michigan, Inc., Docket No. LAKE 2018-340 

(Judge McCarthy, May 24, 2019) 

No case review was denied during the months of May and June 2019. 

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

May 2, 2019 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. WEST 2016-730-M 

RAIN FOR RENT 

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

ORDER 

BY THE COMMISSION: 

On July 31, 2018, the Commission issued a decision in the captioned civil penalty 

proceeding in which it affirmed the decision of the Administrative Law Judge and the citations at 

issue. 40 FMSHRC 976 (Jul. 2018). Rain For Rent thereafter filed a petition for reconsideration 

with the Commission, stating that the matter should be reconsidered because the Judge had not 

been properly appointed to his position in accordance with the Appointments Clause of the U.S. 

Constitution, U.S. Const. Art. II § 2, cl. 2.1

 On August 30, 2018, the Commission issued an order 

denying reconsideration. Rain For Rent then appealed both of the Commission’s decisions to the 

United States Court of Appeals for the D.C. Circuit. 

Before the D.C. Circuit, Rain For Rent represented that it intended to argue to the Court 

that the Commission Judge had not been appointed in accordance with the requirements of the 

U.S. Constitution as explained in Lucia v. SEC, 138 S. Ct. 2044 (2018). The Secretary joined 

Rain For Rent in filing a joint motion to remand the case to the Commission for a new hearing. 

1 On July 31, 2018, the same day that the Commission issued its decision on this matter, 

the United States Court of Appeals for the Sixth Circuit vacated and remanded a separate matter 

for a new hearing before a constitutionally appointed Administrative Law Judge. Jones Bros., 

Inc., v. Sec’y of Labor, 898 F.3d 669 (6th Cir. 2018). 

41 FMSHRC Page 243
On March 22, 2019, the D.C. Circuit granted the parties’ motion for remand, setting aside 

the Commission’s July 31 and August 30 decision and order and “remanded [the case] to the 

[Commission] for a new hearing, in accordance with Lucia v. SEC, 138 S. Ct. 2044 (2018).” 

Western Oilfields Supply Co., d/b/a Rain For Rent v. FMSHRC, No. 18-1269, slip op. at 1 (D.C. 

Cir. Mar. 22, 2019). 

Accordingly, the Commission hereby remands this matter to the Acting Chief 

Administrative Law Judge so that it may be reassigned to a different Judge for a hearing 

consistent with the D.C. Circuit’s instructions. 

/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 

41 FMSHRC Page 244
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 22, 2019 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On July 2, 2018, the Commission received from Industrial 

Process Equipment Constructors (“Industrial Process”) a motion seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on April 30, 2018, and became a 

final order of the Commission on May 30, 2018. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

INDUSTRIAL PROCESS EQUIPMENT 

 CONSTRUCTORS 

Docket No. LAKE 2018-302-M 

A.C. No. 20-00038-463276

41 FMSHRC Page 245
Industrial Process asserts that its failure to timely contest was the result of a typography 

error during informal negotiations with an MSHA representative. After MSHA issued Citation 

No. 8952382 to Industrial Process on March 19, 2018, Industrial Process requested an informal 

conference with a local MSHA representative in order to seek modifications to the cited safety 

standard. On May 8, 2018, the requested conference was held. As a result of the conference, 

changes were made to the citation. However, Industrial Process asserts that it typed the wrong 

citation number in the subject line of the email in which the May 8, 2018 conference was 

requested. Industrial Process asserts that, as a result of this typography mistake, the wrong 

citation was modified in MSHA records. By the time the mistake was discovered, the deadline 

for contesting the citation had passed. Industrial Process paid the penalty in full. Industrial 

Process filed a Motion to Reopen on June 29, 2018, 30 days after the Proposed Penalty 

Assessment became a final order of the Commission. The Secretary does not oppose the request 

to reopen. 

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

the operator’s failure to timely contest the assessment was the result of a mistake. In the interest 

of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for 

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. 

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment 

of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/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 

41 FMSHRC Page 246
Distribution: 

Ralph Zempel 

IPEC Safety Director 

Industrial Process Equipment Constructors 

2905 M 68 

Rogers City, MI 49779-9674 

Ali Beydoun, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Acting Chief Administrative Law Judge Jacqueline Bulluck 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

41 FMSHRC Page 247
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 22, 2019 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On July 3, 2018, the Commission received from Mach Mining, 

LLC (“Mach Mining”) a motion seeking to reopen a penalty assessment that had become a final 

order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on March 5, 2018, and became a 

final order of the Commission on April 4, 2018. MSHA mailed a delinquency notice to Mach 

Mining on June 15, 2018. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

MACH MINING, LLC 

Docket No. LAKE 2018-304 

A.C. No. 11-03141-459475

41 FMSHRC Page 248
Mach Mining asserts that its failure to timely contest the Proposed Penalty Assessment 

was caused by inadvertence by its Assistant Corporate Safety Director. Mach Mining personnel 

reviewed the Proposed Penalty Assessment and decided to contest six of the twenty-seven 

citations and pay the penalties for the remaining citations. However, the Assistant Corporate 

Safety Director, who was responsible for contesting or paying the various citations, failed to do 

so. According to an affidavit signed by the Assistant Corporate Safety Director, he realized his 

oversight when Mach Mining received a delinquency notice from MSHA on June 28, 2018. He 

immediately contacted outside counsel, who filed a Motion to Reopen on July 3, 2018, within a 

week of receipt of the delinquency notice. In its Motion, Mach Mining states that it has changed 

its contest procedures in order to prevent future errors. The Secretary does not oppose the request 

to reopen. 

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

operator’s failure to timely contest the assessment was the result of inadvertence. In the interest 

of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for 

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. 

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment 

of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/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 

41 FMSHRC Page 249
Distribution: 

Christopher Pence, Esq. 

Hardy Pence PLLC 

P.O. Box 2548 

Charleston, WV 25329-2548 

Ali Beydoun, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Acting Chief Administrative Law Judge Margaret Miller 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

41 FMSHRC Page 250
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

May 22, 2019

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On May 24, 2018, the Commission received from Peabody 

Twentymile Mining LLC (“Peabody”) a motion seeking to reopen a penalty assessment that had 

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

§ 815(a).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on April 7, 2018, and became a 

final order of the Commission on May 7, 2018. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

PEABODY TWENTYMILE MINING LLC 

Docket No. WEST 2018-410-M 

A.C. No. 05-03836-461390

41 FMSHRC Page 251
Peabody asserts that its failure to timely contest the proposed assessment was the result of 

inadvertence and mistake by company personnel. Peabody asserts that, on April 17, 2018, its 

Compliance Manager drafted a request directing outside counsel to file a contest of the proposed 

assessment. However, the Compliance Manager never sent the request to outside counsel. 

On May 23, 2018, the Compliance Manager discovered his mistake and immediately 

contacted outside counsel. A Motion to Reopen was filed the next day, less than three weeks 

after the Proposed Penalty Assessment had become a final order of the Commission. The 

Secretary does not oppose the request to reopen. 

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

operator’s failure to timely contest the assessment was the result of mistake and inadvertence on 

the part of Peabody’s personnel. In the interest of justice, we hereby reopen this matter and 

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

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

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

this order. See 29 C.F.R. § 2700.28. 

/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 

 

41 FMSHRC Page 252
Distribution: 

Christopher G. Peterson, Esq. 

Jackson Kelly PLLC 

1099 18th St., Suite 2150 

Denver, CO 80202-1908 

Ali Beydoun, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Acting Chief Administrative Law Margaret Miller 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

41 FMSHRC Page 253
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 22, 2019 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On June 11, 2018, the Commission received from New Gold 

Nevada, Inc. (“New Gold”) a motion seeking to reopen a penalty assessment that had become a 

final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on February 5, 2018, and 

became a final order of the Commission on March 7, 2018. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

NEW GOLD NEVADA, INC. 

Docket No. WEST 2018-430-M 

A.C. No. 26-02572-457995

41 FMSHRC Page 254
New Gold asserts that it failed to timely contest the Proposed Penalty Assessment 

because it was awaiting a response from MSHA in regards to a conference held on January 4, 

2018. After receiving the citations, New Gold requested an informal conference call with a local 

MSHA representative in order to negotiate modifications to the citations before penalties were 

assessed. New Gold asserts that it emailed inquiries concerning its proposed modifications to 

MSHA on January 24, 2018, February 27, 2018, and March 8, 2018, but did not receive a 

response until March 9, 2018, after the Proposed Penalty Assessment had become a final order of 

the Commission.1

 New Gold acknowledges the receipt of the Proposed Penalty Assessment, but 

states that it purposely did not respond due to what it thought were ongoing negotiations with the 

Secretary.2 The Secretary does not oppose the request to reopen, but urges the operator to take 

steps to ensure that future penalty contests are timely filed. 

1

 In its March 9, 2018 response, MSHA forwarded New Gold an email dated January 12, 

2018, which contained MSHA’s original response to the January 4, 2018 conference call. New 

Gold maintains that is has no record of receiving the January 12, 2018 email. It is unclear why 

MSHA did not promptly respond to New Gold’s subsequent attempts to resolve the confusion. 

2

 We note that, while parties are free to engage in pre-contest negotiations, such 

negotiations do not toll the deadline for an operator to contest proposed penalties. See 30 U.S.C. 

§ 815(a).

41 FMSHRC Page 255
Having reviewed New Gold’s request and the Secretary’s response, we find that the 

operator’s failure to timely contest the assessment was the result of the operator’s inadvertence. 

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

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

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

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

§ 2700.28.

/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 

41 FMSHRC Page 256
Distribution: 

Melodie Devlin-Joyal 

Corporate Secretary 

New Gold Nevada, Inc. 

8023 Enterprise St. 

Burnaby, BC V5A 1V5 

Ali Beydoun, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Acting Chief Administrative Law Judge Margaret Miller 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

41 FMSHRC Page 257
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 22, 2019 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On June 22, 2018, the Commission received from Upland 

Rock, Inc. (“Upland”) a motion seeking to reopen a penalty assessment that had become a final 

order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on February 5, 2018, and 

became a final order of the Commission on March 7, 2018. 

Upland asserts that its failure to timely contest the Proposed Penalty Assessment was the 

result of an employee’s mistake. Upon receipt of the Proposed Penalty Assessment, an Upland 

employee stored the document in his personal binder without notifying any other Upland 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

UPLAND ROCK, INC. 

Docket No. WEST 2018-452-M 

A.C. No. 04-05857-458100 

41 FMSHRC Page 258
personnel. After receiving a delinquency notice from MSHA dated May 18, 2018, the employee 

realized his mistake and came forward with the Proposed Penalty Assessment. Upland did not 

state when it received this delinquency notice. However, Upland filed its Motion to Reopen with 

the Commission on June 18, 2018, which could not have been more than 30 days from its receipt 

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

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

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

operator’s failure to timely contest the assessment was the result of an Upland employee’s 

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

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

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

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

See 29 C.F.R. § 2700.28. 

/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 

41 FMSHRC Page 259
Distribution: 

Randy Rogers 

Supervisor 

Upland Rock, Inc. 

8780 19th St., Suite 373 

Alta Loma, CA 91701-4608 

Ali Beydoun, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Acting Chief Administrative Law Judge Margaret Miller 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

41 FMSHRC Page 260
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 22, 2019 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On April 11, 2019, the Commission received from Canyon Fuel 

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

final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on January 15, 2019, and 

became a final order of the Commission on February 14, 2019. 

Canyon asserts that its safety manager mailed a contest form for Citation Nos. 8537411 

and 8537412 to the MSHA Penalty Compliance Office in January 2019. However, Canyon 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

CANYON FUEL COMPANY, LLC 

Docket No. WEST 2019-270 

A.C. No. 42-01890-480720 

41 FMSHRC Page 261
provided no proof that the safety manager mailed the contest form. Canyon further asserts that it 

mailed payment for the uncontested citations to MSHA’s Payment Office on or around January 

31, 2019. However, while MSHA recorded a payment for the contested citations on February 20, 

2019, it has no record of receiving the operator’s contest. After Canyon received a delinquency 

notice from MSHA on April 1, 2019, it filed a Motion to Reopen within ten days. The Secretary 

does not oppose the request to reopen. 

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

operator’s failure to timely contest the assessment was the result of mistake or inadvertence. In 

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

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

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

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

§ 2700.28.

/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 

41 FMSHRC Page 262
Distribution: 

R. Henry Moore, Esq.

Fisher & Phillips LLP

One Oxford Centre

301 Grant St., Suite 4300

Pittsburgh, PA 15219-1407

Ali Beydoun, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Acting Chief Administrative Law Judge Margaret Miller 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

41 FMSHRC Page 263
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 22, 2019 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On May 18, 2018, the Commission received from Kingston 

Mining, Inc. (“Kingston”) a motion seeking to reopen a penalty assessment that had become a 

final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on January 19, 2018, and 

became a final order of the Commission on February 20, 2018. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

KINGSTON MINING, INC. 

Docket No. WEVA 2018-480 

A.C. No. 46-08625-456831 

41 FMSHRC Page 264
Kingston asserts that its failure to timely contest the Proposed Penalty Assessment was 

the result of human error in the use of its case management system. Kingston states that it uses a 

software program to manage citations. The software alerts Kingston of the contest filing 

deadlines for each citation. However, Kington asserts that a safety analyst inadvertently entered 

the wrong case number into the company safety database. When inputting the relevant 

information for this case, she mislabeled the case number as “454631” rather than “456831.” 

Thus, the system did not alert Kingston of the need to contest the citations. On or about May 11, 

2018, Kingston received a delinquency notice from MSHA dated May 4, 2018. Kingston filed a 

Motion to Reopen on May 18, 2018, about one week after it received the delinquency notice. 

The Secretary does not oppose the request to reopen. 

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

operator’s failure to timely contest the assessment was the result of a clerical mistake which was 

promptly addressed. In the interest of justice, we hereby reopen this matter and remand it to the 

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

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

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

See 29 C.F.R. § 2700.28. 

/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 

41 FMSHRC Page 265
Distribution: 

Christopher Pence, Esq. 

Hardy Pence PLLC 

P.O. Box 2548 

Charleston, WV 25329-2548 

Ali Beydoun, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Acting Chief Administrative Law Judge Margaret Miller 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

41 FMSHRC Page 266
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 22, 2019 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On August 8, 2018, the Commission received from Wolf Run 

Mining, LLC (“Wolf Run”) a motion seeking to reopen a penalty assessment that had become a 

final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on June 19, 2018, and became a 

final order of the Commission on July 19, 2018. 

 Wolf Run asserts that it held a conference with an MSHA representative to discuss the 

citations before penalties had been proposed. Following this conference, Wolf Run told its 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

WOLF RUN MINING, LLC 

Docket No. WEVA 2018-622 

A.C. No. 46-04168-467185

41 FMSHRC Page 267
outside counsel that it intended to contest the citations once penalties were proposed. However, 

Wolf Run asserts that internal miscommunication resulted in the penalties inadvertently being 

timely paid, rather than contested. On August 6, 2018, Wolf Run discovered its mistake while 

responding to inquiries from mine management and immediately contacted outside counsel, who 

filed a Motion to Reopen less than three weeks after the Proposed Penalty Assessment had 

become a final order of the Commission. The Secretary does not oppose the request to reopen, 

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

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

operator’s failure to timely contest the assessment was the result of a communication mistake 

regarding whether management intended to contest or pay the penalties. In the interest of justice, 

we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further 

proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 

2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of 

penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/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 

 

41 FMSHRC Page 268
Distribution: 

Michael T. Cimino, Esq. 

Jackson Kelly PLLC 

P.O. Box 553 

Charleston, WV 25322-0553 

Ali Beydoun, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Acting Chief Administrative Law Judge Margaret Miller 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

41 FMSHRC Page 269
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

June 6, 2019 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH Docket No. LAKE 2018-0340 

 ADMINISTRATION (MSHA) 

 v. 

AMERICAN AGGREGATES OF 

 MICHIGAN, INC. 

ORDER 

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

§ 801 et seq. (2012). On February 14, 2019, the Administrative Law Judge issued a decision

denying a motion to approve settlement. On May 24, 2019, the Judge issued an Order Accepting

Appearance, Rejecting Settlement, Recusing Undersigned, Requesting Reassignment, and

Certifying Case for Interlocutory Review.

41 FMSHRC Page 270
Commission Procedural Rule 76(a), 29 C.F.R. § 2700.76(a), provides that interlocutory

review is not a matter of right but of the sound discretion of the Commission. In addition, under

Rule 76(a)(2), a majority of Commission members must conclude that the Judge's interlocutory

ruling involves a controlling question of law and that immediate review may materially advance 

the final disposition of the proceeding. 

This standard having been satisfied, we hereby grant review. The question on review is 

whether the Judge abused his discretion in denying the Secretary’s motion to approve settlement. 

Briefing is stayed pending further order of the Commission. 

/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 

41 FMSHRC Page 271
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

June 19, 2019 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On August 8, 2018, the Commission received from Stone Zone 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

v. 

STONE ZONE 

Docket No. CENT 2018-412-M 

A.C. No. 41-04718-456977

Docket No. CENT 2019-237-M 

A.C. No. 41-04718-361889

Docket No. CENT 2019-238-M 

A.C. No. 41-04718-367048

Docket No. CENT 2019-239-M 

A.C. No. 41-04718-389316

Docket No. CENT 2019-240-M 

A.C. No. 41-04718-392027

Docket No. CENT 2019-241-M 

A.C. No. 41-04718-399316

Docket No. CENT 2019-242-M 

A.C. No. 41-04718-399406

Docket No. CENT 2019-243-M 

A.C. No. 41-04718-401278

Docket No. CENT 2019-244-M 

A.C. No. 41-04718-410608

Docket No. CENT 2019-245-M 

A.C. No. 41-04718-429077

Docket No. CENT 2019-246-M 

A.C. No. 41-04718-438742

Docket No. CENT 2019-247-M 

A.C. No. 41-04718-454777

41 FMSHRC Page 272
a motion seeking to reopen twelve penalty assessments that had become final orders of the 

Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1

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

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

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

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

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

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

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

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

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

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

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

for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

The Secretary asserts that the proposed assessments in Docket Nos. CENT 2019-237-M, 

CENT 2019-238-M, CENT 2019-239-M, CENT 2019-240-M, CENT 2019-241-M, CENT 2019-

242-M, CENT 2019-243-M, CENT 2019-244-M, CENT 2019-245-M, and CENT 2019-246-M

were delivered to the operator’s address of record and became final orders between October 22,

2014 and July 2017, when Stone Zone failed to contest the proposed penalties after 30 days.

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

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

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

Fed. R. Civ. P. 60(c). The motion to reopen was filed more than one year after the 

aforementioned cases became final orders. Therefore, under Rule 60(c), Stone Zone’s motion is 

untimely as it pertains to those cases. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 

2004). 

However, the motion to reopen was timely filed in regard to Docket Nos. CENT 2018-

412-M and CENT 2019-247-M. The Secretary states that in CENT 2019-247-M the proposed

assessment was delivered on January 13, 2018 and became a final order of the Commission on

February 12, 2018. According to the Secretary, in CENT 2018-412-M, the proposed assessment

was delivered on February 17, 2018 and became a final order of the Commission on March 19,

2018.

1

 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

docket numbers CENT 2018-412-M, CENT 2019-237-M, CENT 2019-238-M, CENT 2019-239-

M, CENT 2019-240-M, CENT 2019-241-M, CENT 2019-242-M, CENT 2019-243-M, CENT 

2019-244-M, CENT 2019-245-M, CENT 2019-246-M, and CENT 2019-247-M, involving 

similar procedural issues. 29 C.F.R. § 2700.12. 

41 FMSHRC Page 273
Stone Zone asserts that it received all twelve of the proposed penalty assessments from 

the Department of Labor’s Mine Safety and Health Administration (“MSHA”) but that it filed 

them away with the intention to contest and/or pay all of the penalties at a later date. Stone Zone 

further avers that its failure to timely contest was not a result of “indifference, or inattention, 

inadequate or unreliable office procedures of general carelessness.” Rather, Stone Zone 

maintains that such failure was a product of not understanding that there was a “30 day window” 

for contesting proposed penalties. 

The Secretary opposes the request to reopen, arguing that Stone Zone has failed to 

provide a valid reason to excuse its delinquency. The Secretary notes that Stone Zone admits that 

it received the proposed penalties and that MSHA inspectors specifically advised the operator to 

contest the penalties. Moreover, the Secretary implies that Stone Zone is not acting in good faith, 

only filing a motion to reopen after receiving a citation for failing to pay its penalties and a 

subsequent withdrawal order for substantial delinquent payments. The Secretary further argues 

that, in seeking to reopen these cases, Stone Zone is attempting to rescind on a recent agreement 

with MSHA to pay off its delinquent penalties in a series of monthly installments. 

In regards to good faith, it is well recognized in federal jurisprudence that the issue of 

whether the movant acted in good faith is an important factor in determining the existence of 

excusable neglect. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 

(1993); FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 

(D.C. Cir. 2006). Likewise, the Commission has recognized that a movant’s good faith, or lack 

thereof, is relevant to a determination of whether the movant has demonstrated mistake, 

inadvertence, surprise or excusable neglect within the meaning of Rule 60(b)(1) of the Federal 

Rules of Civil Procedure. Lone Mountain Processing, Inc., 35 FMSHRC 3342, 3346 (Nov. 

2013); M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1271 (Sept. 1986); Easton Constr. Co., 3 

FMSHRC 314, 315 (Feb. 1981). Some of the factors relevant to the good faith analysis are the 

number of delinquent penalties outstanding, the period of time the delinquent penalties accrued, 

and the seriousness of the citations underlying the aforementioned penalties. Kentucky Fuel 

Corp., 38 FMSHRC 632, 633 (Apr. 2016). See also Oak Grove Res. LLC, 33 FMSHRC 1130, 

1132 (June 2011). 

According to the Installment Payment Agreement that Stone Zone entered into on July 3, 

2018, Stone Zone owed MSHA a total amount of $214,756.95 in delinquent penalties, interest, 

and fees for civil penalties issued between 2010 and 2018. Of the 12 cases involved in the 

present motion to reopen, Stone Zone is seeking to reopen 58 citations and orders, 14 of which 

were issued under section 104(d) of the Mine Act.2

 In addition, we note that Stone Zone only 

filed a motion to reopen after MSHA issued a citation for failure to pay its penalties and section 

104(b) withdrawal order for delinquent payments. Moreover, Stone Zone had already entered 

into an agreement with MSHA to pay all outstanding penalties a month before filing the motion 

to reopen. 

These facts are clearly not consistent with an operator acting in good faith. The operator’s 

record indicates that it has repeatedly disregarded final penalty assessments for many years. The 

2

 The orders issued pursuant to section 104(d) were for unwarrantable failure to comply 

with mandatory health and safety standards. See 30 U.S.C. § 814(d). 

41 FMSHRC Page 274
large amount of penalties, which had accumulated in the years preceding the request to reopen, 

should have informed the operator of the need to be more attentive to proposed assessments from 

MSHA. Therefore, the operator should have taken precautions, due to the serious violations and 

high penalties at issue, to timely contest the proposed assessment. 

Finally, the Commission has made it clear that where a failure to contest a proposed 

assessment results from an inadequate or unreliable internal processing system, the operator has 

not established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC 

3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double 

Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC 

1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle 

Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). It is the operator’s responsibility to read any 

information provided by MSHA in connection with a proposed assessment. In particular, the 

Secretary attaches to each proposed penalty a document titled Notice of Contest Rights and 

Instructions which clearly states in its first sentence that, “[p]ursuant to 30 CFR 100.7, you have 

30 days from receipt of this proposed assessment to either (1) pay the penalty or penalties . . . or 

(2) notify MSHA that you wish to contest some of all of the proposed assessments. . . .”

Here, it is clear that Stone Zone operated for years without a process in place to review 

and contest proposed penalties. Rather, it appears that it was the operator’s longstanding practice 

to simply file away the proposed assessments without reviewing the penalties or the Notice of 

Contest Rights and Instructions which accompany each assessment. 

41 FMSHRC Page 275
We have reopened final orders where an operator, though unfamiliar with contesting 

procedures, demonstrated a genuine interest to understand its obligations and liabilities under the 

Mine Act and act on such obligations. However, Stone Zone has provided no evidence that it 

attempted to follow up or seek clarification from MSHA or the Department of Treasury as to the 

deadline to contest the penalties. It strains credibility to believe that Stone Zone could operate for 

years under the mistaken belief that it could contest MSHA penalties years after they were 

proposed. 

Accordingly, we find that the operator has failed to demonstrate an entitlement to 

extraordinary relief, and thus we deny Stone Zone’s motion. 

/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 

41 FMSHRC Page 276
Distribution: 

Jim Chadwick 

Stone Zone Quarry 

30 Midnight Ln. 

Georgetown, TX 28626 

Ali Beydoun, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

Acting Chief Administrative Law Judge Margaret Miller 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

41 FMSHRC Page 277

ADMINISTRATIVE LAW JUDGE DECISIONS
41 FMSHRC Page 278
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE N. W., SUITE 520N 

WASHINGTON, D.C. 20004-1710 

Telephone No.: 202-434-9933 

Telecopier No.: 202-434-9949 

May 20, 2019 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), Docket No. LAKE 2016-0305 

Petitioner A.C. No. 12-02295-409606

v. 

PEABODY MIDWEST MINING, LLC Francisco Underground Pit 

Respondent 

DECISION 

Appearances: Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of 

Labor, Chicago, Illinois, for the Petitioner 

Arthur Wolfson, Fisher Phillips LLP, Pittsburgh, Pennsylvania, for the 

Respondent 

Before: Judge Moran 

In this proceeding upon a petition for assessment of a civil penalty under section 105(d) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d), the Secretary alleges that 

the Respondent, Peabody Midwest Mining, LLC, violated 30 C.F.R. § 75.202(a), a safety 

standard titled “Protection from falls of roof, face and ribs,” which provides “[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.” A hearing 

was held on January 23 and 24, 2019 in Henderson, Kentucky. 

For the reasons which follow, the Court finds that the violation was established, and that 

it was significant and substantial but that it was neither an unwarrantable failure nor, under any 

theory, was it a flagrant violation. A proposed civil penalty of $165,700.00 was assessed against 

Peabody for the violation in accordance with the special assessment provisions of 30 C.F.R. § 

100.5(e). As also explained below, based on the Court’s findings of fact and credibility 

determinations, a civil penalty in the amount of $40,000.00 (forty thousand dollars) is imposed 

for this violation. 

41 FMSHRC Page 279
The Alleged Violation 

On January 13, 2016, the Mine Safety and Health Administration (MSHA) issued a 

Section 104(d)(2) Order, No. 9036925, to Peabody Midwest Mining, LLC (“Peabody”) at the 

Respondent’s Francisco Underground Pit. (Ex. P-1). Order No. 9036925 alleges: 

The roof, face and ribs of areas where persons work or travel shall be supported or 

otherwise controlled to protect persons from hazards related to fall of the roof, 

face or ribs. Loose coal ribs were observed in 13 entries for a distance of 

approximately 500 feet on the MMU-002 and [MMU-022] 1 active working 

sections. The loose coal ribs measured approximately 4 inches to 18 inches in 

thickness for 6 1⁄2 to 7 feet in height and 30 to 40 feet in length gapped away from 

the solid pillar approximately 3 to 6 inches with rock dust present behind them. 

The mine operator’s pre-shift and on-shift record books indicate that the 

production crews had been prying down ribs but no evidence of correcting any 

hazardous condition was present at time of inspection. The mine operator has 

engaged in aggravated conduct constituting more than ordinary negligence by 

allowing this condition to exist until the arrival of MSHA. This violation is an 

unwarrantable failure to comply with a mandatory standard. Standard 75.202(a) 

was cited (34 times in two years at mine 1202295 (34 to the operator, 0 to a 

contactor.) Id. 

Findings of Fact 

MSHA Inspector Glenn Fishback testified for the Secretary. Fishback has been with 

MSHA for 111⁄2 years. His total mining experience, including his years with MSHA, is 40 years. 

Tr. 25. Fishback has been an MSHA roof and rib control specialist for eight years. Tr. 26-29, 

105. Some 29 years of his mining experience involved examining for bad roof and ribs. Tr. 106.

Regarding the matter in issue, Fishback was at the mine on January 13, 2016. He was there to

conduct his regular duties as a roof control specialist and to “extend the violation [regarding a

separate roof control violation] which had been issued to the mine and to evaluate conditions of

the area from an order that had been issued previously.” Tr. 30. The extension was to allow the

mine to submit a new roof control plan. Thus, he was at the mine to terminate a previous order,

and in fact he did terminate that order on that day, January 13. Fishback required as part of that

termination, that the mine retrain its management people in doing proper examinations. Tr. 34.

Following that, Fishback went underground. His escort that day was Travis Hayden. Tr. 

36. It was during that inspection that Fishback issued the order which is the subject of this

decision. Exhibit P-1 is Fishback’s 104(d)(2) order for the alleged violation of standard

75.202(a), which he issued on January 13. Tr. 36. Fishback marked on a map, using an orange

1 The order originally listed MMU-012, but was amended to reflect the correct MMU, 

which was 022. (Exhibit P-1, p. 4) 

41 FMSHRC Page 280
highlighter pen, the path, that is, the route he took that day on his inspection.2

 Tr. 38. Ex. P-2. On 

that day crosscut 11 was the last open crosscut. Tr. 39. Next to entry 5, the conveyor belt line, is 

entry 4, the travel road he used to arrive at the section. Fishback gave detailed testimony about 

the route he took that day and it was during that route that he came upon the areas he identified 

in his order.3 Tr. 53. His examination of the cited areas took an hour or more. Tr. 54. 

Referring to the conditions he observed in connection with his order, Fishback stated 

there was a lot of “rib rash ... and a lot of broke up rib conditions.” Tr. 60. “Ribs,” of course, 

refer to the mine’s sides and it was along those ribs that the inspector observed “various cracks 

running through it. Some of them were gap[ped] where [he] could see in between them, and they 

2

 The map, Ex. P-2, was provided by the Respondent as part of the Secretary’s discovery 

but the Respondent asserted during the hearing that the map could not be used as a device to 

actually show “where the faces were at the time of the inspection.” Tr. 38. (emphasis added). It is 

true that Ex. P-2 is a more recent map, as it reflects mining activity well past crosscut 11, 

showing crosscuts from 12 to 23. However, that does not diminish the map’s usefulness, as its 

purpose was to illustrate where Fishback traveled on the day in issue. The precise location of the 

faces on January 13 is not essential to the issues at hand, nor does it diminish the identification of 

the route Fishback took that day. Later, on recross-examination, Fishback confirmed that Ex. P-2 

reflects, in orange, the route he could definitively say he traveled but, beyond the orange 

highlighter marking on the exhibit, he could not be sure about other details of his travel that day. 

Tr. 177, 182. 

3

 Although Fishback described the route he took that day, to better visualize the 

inspector’s route of travel that day, the Court recommends that the reader consult Ex. P-2 which 

includes the orange-highlighted depiction of his route, as mentioned above. In his testimony, he 

stated that he traveled up to crosscut 8, from entry 4 to crosscut 8. Tr. 39-40. The feeder was then 

at 9, which he indicated on the map with a small triangle, signifying the belt tail piece location. 

Crosscut 9 intersects with entry 5. This was marked using a black pen. Tr. 42. From that point, 

Fishback traveled through crosscut 8 over to entry 5 and then at the intersection of crosscut 8 in 

entry 5, he proceeded to crosscut 9. Tr. 43. After checking things in that area he then returned to 

entry 4 and from there up to crosscut 10 and then to was is listed on the map as entry 00. Tr. 43-

44. The inspector added a black arrow showing his direction of travel there. Tr. 45. Crosscut 11 

was the last open crosscut at that time. Tr. 45. He then traveled from entry 00 to entry 11, taking 

some air readings as he progressed. Id. This was part of his imminent danger run, a standard 

preliminary duty before visiting the area he intended to inspect. He then traveled down entry 11 

up to crosscut 5, which is just below entry 6 and from there he returned to entry 8, traveling inby 

to the second opening, which was then at crosscut 10. Tr. 50. Next, he proceeded from entry 8 to 

entry 6 and then traveled outby from 6. Tr. 53. Also, in response to the Court’s questions, in 

learning about the distances between crosscuts and entries, Fishback stated the distances between 

crosscuts varied between 60 to 80 feet, but typically they would be 60 feet apart. Roof stability 

can be a reason for these variations. Tr. 55. The entries are also not uniform, in the distances 

between them. Accordingly, a pillar length may vary. Further, for purposes of record 

clarification, Fishback stated that the lines he marked on Ex. P-2 with an orange highlighter 

represented the area he walked and where he found the problems he cited in Order No. 9036925. 

Tr. 57. The map pertains to one unit, for which the mine had two MMU’s (mechanized mining 

units). The right MMU is 22 and the other MMU was 2. Tr. 58-59. 

41 FMSHRC Page 281
had rock dust behind them, which indicated they’d been there.” Tr. 60. By stating “they’d been 

there,” Fishback obviously meant the gaps were not recent, as there was rock dust behind them. 

There was a mud seam in the cited are and this presented a problem, according to 

Fishback, because it increased the risk of a rib falling on miners. This was an ongoing problem 

and the mine had been cited for this issue before. Tr. 61. Exhibit P-1, Fishback’s Order in this 

matter, describes but one bad rib, that is, loose coal measurement, in it. As reflected in the text 

his order, he measured it at 4 to 18 inches thick by 6 1⁄2 to 7 feet in height and 30 to 40 feet in 

length and having a gap of 3 to 6 inches with rock dust behind it. Tr. 61. Asked why no precise 

location was listed for this bad rib in the order, Fishback stated that the measurement was 

representative, approximately, “of all of the conditions [he] found.” Tr. 61, 65. He did not 

contend that the ribs were bad along “every step” but rather that similar conditions existed 

everywhere he traveled in that area. Tr. 62. Travis Hayden, the mine’s representative who was 

traveling with Fishback at that time, then asserted to the inspector in response to those rib 

conditions that the mine “had been prying on them.” Tr. 62. Significantly, to the Court, Fishback 

did not contradict that claim of Hayden. Instead, when asked if anybody else came up to him and 

asserted that they were prying ribs, Fishback only responded “[n]ot that I remember.” Id. As 

noted in this decision, though asked several times about that issue, the inspector could never 

affirmatively state that he saw no one working on ribs – he could only state that he could not 

remember such activity. 

Fishback also spoke to Ex. P-3, which is a book MSHA kept in its office, reflecting 

notification to a mine of conditions that are continuing to exist at a mine. Tr. 66. The purpose 

behind the book is to have the mine conduct “heightened awareness” of a given problem. Tr. 66, 

162-163. The book reflects that the mine had been put on such heightened awareness status on

August 12, 2015 for standard 202(a). Subsequently they were taken off that status for that

condition. Tr. 67. However, as of January 13, 2016, the mine was on that “heightened

awareness” status.

While the order describes only one, approximate, measurement of the rib conditions, 

taken by Fishback, and about which he characterized as representative of the conditions he 

observed, he did take numerous photographs of the conditions he observed, which were offered 

in support of his order. Tr. 62, Ex. P-5. The photos in this multi-page exhibit, Ex. P-5, reflect the 

date and time they were taken. Tr. 69. No photo lists the exact location where it was taken. The 

reason for this was the inordinate amount of time such an effort would require. Tr. 71. At the 

first page of Ex. P-5, that photo was taken between crosscut 5 and 12. For that first photo, 

Fishback stated that it shows a rib that had either rashed off or alternatively may have been taken 

down. Tr. 72. However, the photo also displays, he contended, “several other areas there that 

[were] about to fall on themselves.” Id. He elaborated that these areas were on the left side of the 

photo and show “all those areas that are cracked, [as evidenced by] the black outline [ ] around 

each of them, that they are about to either fall off or they need to be pried off, one or the other.” 

Id. In these photos, the light, whiter, color represents rock dust that’s been applied, while the 

brown or light tan colors still reflect rock dust but where the moisture has been sucked out of the 

coal. Tr. 73. Black in the photos represents bare coal where the ribs had fallen. This fallen coal 

41 FMSHRC Page 282
was sometimes right by the ribs and sometimes in the middle of the entries, dependent upon the 

thickness of the fallen material. Id. The roof height was seven to eight feet.4 Id.

Fishback then discussed several of his other photos from the exhibit and it is fair to state, 

that while the particular descriptions of the conditions in each photo varied, they all represented 

conditions that the inspector believed supported his opinion of ribs that were in need of 

attention.5 Tr. 80, 82. Explaining the pictures further, Fishback stated that “[w]here you’re seeing 

the black area, it’s already fell off where it’s black, and the cracks indicate that it’s going to fall 

in the near future.” Tr. 83. More examples were cited. Tr. 85. 

The Secretary stated, quite reasonably in the Court’s view, that he did not want to take 

the witness through each of the many photos the inspector captured that day. Given that, the 

Court inquired whether, for all of photos Fishback had described up to that point, if they were 

“representative of what [Fishback] saw throughout the section and caused [him] to issue [the 

order in this case].” Fishback responded, “Yes.” Tr. 95. 

Fishback stated that there would be exposure to these rib conditions. Therefore, the ribs 

did not present simply an academic issue. For example, there were electrical cables along the rib 

and these would need attention as mining advanced. Miners doing that work would be right next 

to the rib. Tr. 87-88. Similar issues were identified with cables and rib issues. See also, Tr. 89, 

and Tr. 90, with the latter an example of a rib that broke from the solid pillar. Tr. 90. 

Fishback was then directed to page 53 of Ex. P-5. He identified it as a rib that had either 

fallen out or had been taken out by the operator and for which condition the operator had 

installed supplemental support, timbers, to help hold the lower portion of the rib. Tr. 96. 

That photo was taken on January 15, 2016. Id. and Ex. P-5, at 54 and 55. The photos were taken 

in connection with his termination of this order. Tr. 96-97. 

The Secretary then asked Fishback about Pages 35 and 36 within Ex. P-5. He described it 

as a rib with cracks in it and which had been heavily rock dusted. The photo also showed the 

examiner’s date, time and initials, marked by orange spray paint. Tr. 97. Page 38 of Ex. P-5 also 

shows the same spray painted initials but for that photo, beyond recording January 2016, the 

exact date was unclear. Tr. 98. Fishback stated that this photo also shows loose ribs. Tr. 98-99. 

The Court asked the witness to focus, for the moment, solely on Photo 38, asking whether, if he 

only saw that condition on that day, would he have issued a 75.202(a) violation for that alone? 

Fishback answered he probably would have issued a citation or order for that because the 

examiner’s initials were right on it and therefore he could not contend that he did not see the 

4

 To gain perspective of the photo’s depiction, Fishback drew a red diagonal line on the 

exhibit to demarcate the roof’s location in the photo. Tr. 74-76. He also drew a line to show the 

junction between the roof and the rib. Tr. 78-79. 

5

 Fishback agreed that for these photographs, most consisted of paired sets of each photo. 

That is, for Ex. P-5, photos one and two are the same picture, with one simply being an 

obviously clearer picture of the other. As a second example, Ex. P-5, photos three and four, 

represent the same picture. Tr. 81. Ex. P-5, photos five and six, are yet another example. Tr. 83. 

41 FMSHRC Page 283
condition. However, as Fishback viewed the matter as encompassing multiple rib problems, he 

could not commit to asserting that condition alone would be a 75.202(a) violation. Tr. 100-101. 

Fishback agreed that, for each of the photos he discussed in his testimony, the ribs were 

not adequately supported or otherwise controlled to protect persons from hazards related to falls. 

Tr. 104. When rib material comes down, it starts straight down, but he stated that if the material 

is sufficient it will fall into an entry. Tr. 107. Fishback knows firsthand of the hazard a rib can 

present, as he was once struck by a falling rib, though no broken bone resulted from that event. 

Tr. 108. It is noteworthy that the cited standard is considered important enough to have been 

designated by MSHA as one of its “rules to live by.”6 Tr. 109. The mud seam adds to the safety 

issue because it increases the chances of cracking and breaking around the seam and then 

material dislodging from the ribs. Tr. 110. 

Fishback also informed that he had spoken to the mine’s operations manager, Jon Dever 

and also “[p]robably everybody in management for sure at the mine at that time.” Id. 

Those discussions included his suggestions for supplemental support, such as rib bolting and 

timbering, all with the idea of helping to eliminate the rib rashing. Id. However, he stated that so 

far none of his suggestions had been adopted, at least in that cited section of the mine.7

 Tr. 111-

112. 

As noted above, Fishback was not definitive when asked if he saw any miners taking 

down ribs when he issued his order, stating “not that I remember.” Tr. 113-115, 140. 

He asserted inquiring “don’t you think we need to pry some ribs around here?” Tr. 113. 

This was prompted because he “just kept finding” rib problems. Id. He then rephrased his 

question asking the miners “why are we not prying ribs down?” Tr. 114. Also, the mine was 

running coal at that time. Id. 

Fishback’s order did acknowledge that the pre-shift and on-shift record books reflected 

that the production crews had been prying down ribs. Tr. 115. The Order also listed his 

determination that an injury or illness was highly likely, because of the conditions he found that 

day. The result could be a serious injury, such as broken bones. The maximum number of miners 

exposed was listed as ten. Tr. 116. Weekly examiners and the rock dusting crew would have 

been exposed to the conditions. It was marked as significant and substantial because of the size 

of the ribs and the conditions he encountered. Tr. 117. He concluded that the conditions 

6

 The Court takes official notice of MSHA’s “Fatality Prevention –Rules to Live By,” its 

initiative to improve the prevention of fatalities in mining,” lists the cited standard, 30 C.F.R. § 

75.202, as one of the coal priority standards, falls of roof and rib. See Fatality Prevention – Rules 

to Live By, U.S. DEP’T OF LABOR, MINE SAFETY & HEALTH ADMIN., 

https://arlweb.msha.gov/readroom/coal%20handbook/MSHA%20-%20Initiatives%20-

%20Fatality%20Prevention%20-%20Rules%20to%20Live%20By%20I.htm (last visited April 

22, 2019). 

7

 It was also brought up that MSHA determined that the mine’s roof control plan needed 

to be amended. Tr. 112. This issue arose at a point in time before the order involved in this 

proceeding. Id. However, the changes were not implemented until after the order here was 

issued. Tr. 113. 

41 FMSHRC Page 284
presented a “major safety hazard.” Id. In characterizing the conditions as “excessive,” Fishback 

justified that term because “[i]t covered the whole working section and people were exposed to 

it.” Tr. 118. Further, based on his experience, he believed the conditions had existed for “[o]ne to 

two weeks,” and he expressed that they were obvious, a conclusion he believed was supported by 

his photographs. Tr. 119. Aggravating the situation, in his view, the operator had been put on 

notice that greater efforts were needed to address the issue. Id. In terms of correcting the suspect 

ribs, management informed Fishback that it took seven or eight miners over a period of seven 

shifts to accomplish this. Tr. 120, 161. 

Before beginning cross-examination, Respondent’s Attorney, Mr. Wolfson, reasserted an 

objection he had lodged earlier – namely that the photos should not be admitted because of the 

alleged “non-specificity of the location listed on the [inspector’s] worksheets.” Tr. 123. 

The Court ruled, as it had before,8

 that the inspector testified that “all these photographs were 

taken in the area which [the inspector] traced with the orange marker ... [and that it would have 

been] “excessively burdensome and time-consuming” to have required the specific locations 

Respondent sought. The Court also noted that “[c]ertainly, there’s no testimony that these were 

taken at some other mine or some other location.” Tr. 124. For those reasons, as it did in its 

earlier decision involving this mine and this mud seam, the Court rejected the Respondent’s 

objections. 

Cross-examination began by directing the inspector to his notes, Ex. P-4, at page 27. 

They pertain to 30 C.F.R. § 75.223(a)(1), and deal with a citation he also issued on January 13, 

2016, involving the mine’s need to revise its roof control plan. Tr. 126. Fishback agreed that he 

did not issue an order shutting down the section until after he made his complete inspection of 

the working section. Tr. 132.9

The inspector concurred that he advised the crew to be more diligent in their rib prying, 

and that his notes reflected that the crew told him they had been prying down ribs, but he told 

them that he had seen no one pry a thing the whole time. Tr. 139-140. 

In cleaning up material that has been pried down, depending upon the amount involved, 

typically a scoop will be used to clean up the fallen material. Tr. 141. When asked if he was able 

to see fallen material in the photos discussed during direct examination, Fishback stated he could 

not detect such material in the photos and Counsel for the Secretary stipulated that in photos 1 

8

 See, the Court’s earlier decision involving the same mud seam at the Respondent’s mine 

and the issue of the sufficiency of the location of the loose ribs. Peabody Midwest Mining LLC, 

2018 WL 816286 *11 (Feb 2018) (ALJ), for example. 

9

 Following that, it was remarked that in his notes regarding the working section, 

Fishback marked “NVO,” which is shorthand for “no violations observed.” However, Fishback 

explained that was limited to methane or oxygen issues. Tr. 133. 

41 FMSHRC Page 285
through 22, 35, 36, and 53 through 55, they do not show material on the ground. 

Tr. 143.10

Respondent’s Counsel raised the matter of alleged violations cited by Fishback in the 

prior year, on August 12, 2015. These were not located near the order in this case, but rather on 

the second southwest main travelway. Tr. 164-169.11 

The Secretary then called MSHA Inspector Stephen William Tisdale. Tr. 186. His total 

mining experience, including that with MSHA, comprises about 15 years. Tr. 188. Directed to 

Ex. P-8, he identified it as orders he had previously issued on October 28, 2015 to the Francisco 

Mine for violations of 75.202(a), the same provision cited here, involving maintaining safe ribs 

and roof. Tr. 189. This was not new ground to the Court, as it presided in an earlier hearing 

involving those matters and had issued a decision regarding that, which decision was not 

appealed. See, Peabody Midwest Mining LLC, 2018 WL 816286 (Feb 2018) (ALJ). More will be 

said about this in the Discussion section below, because the Court has determined that it bears 

upon the present decision. 

Then directed to January 14, 2016, Tisdale stated that he was at the mine that day to 

terminate an earlier issued (d) order, No. 9036925, the order at issue here, that as discussed had 

been issued by Fishback. However, Tisdale did not terminate the order that day. Tr. 194. 

This was because when he arrived at the areas covered by the order he “found miners still 

working on the conditions that were cited in the order ... there was still a lot of material on the 

ground. There were bolters bolting [wide] bolt spacing. The faces actually had a lot of material in 

them also.” Tr. 195. Tisdale added, “[i]n the faces, they would have been full almost to the point 

they were into the last open [crosscut]. And [he] believe[d] that is what prompted [him] to 

modify [Fishback’s] order because they had nowhere else to store [the rib] material. And if they 

would have continued to put [that material] in the faces, they would have been creating another 

hazard.” Id. That other hazard was the material was making it difficult to do adequate gas checks 

at the faces. Miners were having to crawl over coal piles to do those checks. Tr. 196. Also, while 

10 Fishback agreed that his order reflects one set of “measurements” that day but he stated 

that he took several measurements while at the site that day. However, the listed “measurements” 

do not reflect “actual” measurements in the sense one would typically use that term, but rather 

represent an average of the estimated measurements he took. Further, he was unable to recall the 

number of measurements he took in order to arrive at that average, nor specifically where they 

were taken in the section. Tr. 146-147. It is noted that within Ex. P-4, pages 11-12 of the 

inspector’s notes, is listed the “measurements” he took and those are the same measurements he 

listed in his order. Tr. 148. 

11 The Court references this only for the purpose of completeness, but it does not believe 

it is pertinent, nor helpful, to resolving the issues in this case. In fact, the Court expressly 

remarked at the hearing that it did not see how it helped resolve the present controversy. Tr. 169. 

It would seem to have been offered to show that the Respondent addressed those earlier 

identified problems by having a roof bolter move to an outby location in order to attend to them. 

These involved alleged violations of 75.202(a) and 75.220(a)(1). Tr. 164. On redirect, the 

Secretary returned to Fishback’s August 12, 2015 citation, which the inspector informed was 

issued for a section 202(a) violation, and involved a bad rib issue. Tr. 170. 

41 FMSHRC Page 286
he was there, Tisdale found some loose ribs that needed to be pulled down. In his opinion, the 

amount of material present was almost significant enough to prevent a scoop to drive through 

there. Tr. 197. Roof bolters were also working there, to replace areas where there was then wide 

bolt spacing created by the ribs being pulled down. Tr. 197-198. 

Tisdale also identified Ex. P-8 as what was represented to him by Todd Seilhymer, who 

was at that time the mine’s superintendent, as to the number of miners who had been working on 

the rib issue. Tr. 199. Yet, while the mine believed that the order was ready to be lifted and 

though two more shifts had elapsed before Tisdale arrived at the mine to assess the situation, 

work was still being done to address the problem. Id. Thus, the order remained intact and Tisdale 

only allowed a scoop to load the material on the belt. This modification was to make it clear that 

no mining could resume at that point – only continued cleanup was allowed. Tr. 200. At that 

time, Tisdale also observed scoops dealing with the ribs and pry bars being employed too. At 

least six ribs were pried down while he was there and some required effort to take them down, 

but “[t]here were [a] couple that very eas[ily] came down.” Tr. 201. These pried ribs came out 

into the entry – they did not just fall straight down. Id. Tisdale knew that a lot of material had 

been taken down, by the amount of material that was in the faces. Tr. 202. 

At that point, the Secretary having rested, subject to the potential for rebuttal testimony, 

the Respondent called its first witness, Casey Winters. Tr. 210. Winters has ten years of mining 

experience. Tr. 213. In January 2016, Winters was a “lead man,” a position he described as a 

junior face boss or section foreman. Presently, he is an “operator.” Id. At the time of Fishback’s 

order, the mine ran three shifts. One of those shifts was idle, which meant that shift did anything 

that would help the mine run coal. This included belt moves, cleaning, building walls, and 

scooping. Tr. 211. Winters was then on Unit 2 production. There were then three working 

sections. Id. 

Winters agreed that in January 2016, the mine had a mud seam. Tr. 213. He described the 

condition as “mud in between coal. It was coal on top, coal on the bottom. There would be a mud 

bank running all the way through it.” Tr. 214. He stated that the condition did have an effect on 

the ribs, “Yeah, the ribs would, where the mud was, would usually kind of fall out.” Tr. 214. He 

then elaborated how this condition was addressed, “We always – it was a rule that we always had 

someone, one person detected to prying ribs. All shift long, no matter shift it was, you had to 

have somebody prying ribs ... and it was one of the biggest things we did, prying ribs and spot a 

bolt.” Tr. 214. In response to the Court, Winters confirmed that the mine had one person 

dedicated to dealing with ribs at all times. Tr. 215. This was true, Winters stated for every shift. 

And this was full-time job, all the time, not just as needed. Id. 

When the Court then suggested that such a practice must have meant there was much to 

attend to, Winters responded that he wasn’t suggesting that person was “busy all the time ... but 

it was their job to patrol the unit and look for anything, whether it would be the two-inch piece to 

pry down or you could spot ... bolt[s].” Tr. 216. The mine also took other measures to deal with 

rib control. One of these was addressing mud vein corners by shearing them with the continuous 

miner, cutting it at an angle. This practice prevented the corners from falling out. Tr. 217. 

41 FMSHRC Page 287
Winters also spoke to the type of material that would come out upon prying a rib. It 

would vary, he said, asserting that it could be a foot by a foot or less, with a thickness of six 

inches. He described it as knocking chunks of coal down. Tr. 218. Asked if, per the Order in this 

matter, he encountered ribs in Unit 2 of the dimensions described in that Order, Winters 

responded that he never did. Tr. 219. 

Directed to midnight shift on January 13, 2016, Winters stated that he worked the 

midnight shift that day on Unit 2. This was in the time frame before the Order in issue here, from 

11 pm until 7 am. Tr. 227. He asserted that on that shift he was working on an outby drive belt, 

and also was there to bolt up the unit, and to add a new drive setup, which was not on Unit 2. Tr. 

220. Two roof bolters did the work at the unit and, in total, there were three of them working that

shift. He also asserted that he scaled the “whole time” that shift. Tr. 222. He acknowledged 

that coal might be run during this shift too. Tr. 223-224. Winters, while maintaining that the 

amount of material was only six inches to a foot or two, and up to three feet tall,12 did 

acknowledge that the rib issue was not just in one location. Instead, it was “throughout the whole 

section.” Tr. 225. 

Winters was also shown Ex. R-3, the pre-shift book. It records the conditions he found 

during that exam. Tr. 228. As Respondent’s Counsel walked him through that exhibit, Winters 

agreed that it noted wide bolt spacing and spotting 15 bolts in one location and four bolts in entry 

2 and three bolts in Entry 1 and in 00, he spotted a corner bolt. Asked if those bolting actions 

were as a result of prying ribs, Winters responded, “[y]eah, I would say,” adding that 95% of 

them were from prying. Tr. 229. 

Winters stated that the spotting was also done outby the tail piece.13 Tr. 230. He also 

maintained that, following the prying he would replenish the rock dust by hand, not by machine, 

and for loose debris he “would always scoop it up.” Tr. 233-234. 

On cross-examination, Winters agreed that if he threw rock dust on areas that had been 

pried, one would not expect to see blocks of black coal. Tr.236. Winters was less certain when 

asked whether, following the Order, issued after his midnight shift, for the next two days, there 

was no active mining, stating he would need to look at the production shift. Id. He explained that 

he might not have been up on that section for his next shift, the following night, but he couldn’t 

have that response both ways, in that he could not know how much work had been done to 

correct the problem, following the order’s issuance. Tr. 237. Thus, he admitted he could not 

speak directly to the assertion that it took eight miners per shift for seven shifts to correct the 

violation. Tr. 237-238. He then conceded that he did not know the material was sufficient that, 

when the new inspector arrived, that inspector found chunks of coal on the ground upwards of 

two to three feet thick. Tr. 238. 

While Winters challenged the idea that the amount of material was sufficient to block his 

ability to do his gas checks at the face, he admitted he couldn’t recall if he even was working on 

12 Winters did not view a piece of those dimensions to be “a big piece.” Tr. 226. 

13 When shown the production report, it reflected his earlier testimony that there was no 

production on that midnight shift. Ex. R 2, Tr. 231-232. 

41 FMSHRC Page 288
that unit on the January 14. In fact, even for the next day, January 15, he could not recall if he 

was there following the Order. Tr. 238-239. 

Travis Hayden, section foreman, then testified for the Respondent. Tr. 243. He held the 

same position in January 2016. However, while he escorted MSHA Inspector Fishback on that 

day, he had never worked in Unit 2. Tr. 244. He stated that at the tail piece Fishback found a 

loose rib, but that he, Hayden, was unable to get it to come down. Tr. 246. Hayden did not 

believe it really was a loose rib. Instead Hayden believed there was a crack in it. Id. 

Their travel continued to the far left entry, at 00. Tr. 248. In the last open crosscut Fishback 

pointed out one rib with an issue, between zero and double zero (“00”). Hayden considered it to 

be a crack, very much like the crack they viewed at the tail piece. Id. Hayden spoke of a crack or 

a small gap as essentially the same condition. Tr. 249. Fishback used a stick to pry the condition, 

but according to Hayden, only small pieces came out. Id. 

Their travel then proceeded to the last open crosscut, but Hayden stated that Fishback did 

not raise any other rib concerns. Tr. 249-250. Nor, Hayden stated, did Fishback note any other 

rib issues between entries 11 and 6. Tr. 250. However, at the power center Fishback “pointed out 

a few ribs” needing attention. Id. For one of those issues, near the power center, Winters again 

described some cracking, but Fishback did not ask that the condition be pried, nor did he ask him 

to find someone to pry it, nor did he require that the location be flagged. Tr. 251. 

From there they continued to walk outby where some cracking was observed: “[k]ind of just 

cracking in the ribs. In the mud vein is what I call it.” Tr. 252. He estimated there were 

“probably four or five spots [Fishback] pointed out to [him] in through that area.” Id. As for the 

mud vein, Hayden did not view the rib issues as gapping. Instead, his description was that “it was 

more cracking.” Tr. 253. 

At that point in their route, after traveling entry 7 and over to entry 4, things changed, as 

Fishback told Hayden to “get ahold of the face boss on the unit. He was shutting down the unit, 

and ... [Fishback] wanted to have ... a safety meeting with the guys ... on the unit.” Tr. 255. 

Fishback, again according to Hayden, asked the crew if anyone had been prying down ribs that 

day. Everyone on the crew, Hayden stated, told Fishback that they had been prying ribs that day. 

Tr. 256. Also, at that time, Fishback pointed out a rib to the assembled crew, but when a miner, 

Joe Frederick, tried to deal with it, the rib could not be pried down. Tr. 256-257. The matter was 

addressed by having a scoop knock down the rib. Hayden also contended that he saw Fishback 

take only one measurement during the entire time – that was to measure the air in the width of 

the entry to the last open crosscut. Tr. 258. 

Hayden further asserted that, while accompanying Fishback, he did see evidence that 

prying had occurred, as he observed pieces of rib on the ground next to the ribs. Tr. 259-260. In 

essence, Hayden presented a very different picture of the conditions from Fishback’s accounting. 

For example, he stated that there were a lot of areas that had been “freshly scooped,” meaning 

the ribs were square and the bottom was clean. Tr. 260. Despite that testimony, he acknowledged 

that “there were some ribs on the ground. [Hayden] even pointed some of them out to show 

[Fishback] that we was prying ribs out, just to show him we was making an effort to take care of 

the problem.” Id. 

41 FMSHRC Page 289
Hayden informed that he made notes of the inspection. Tr. 262. This evolved into a 

statement that was derived from his notes while he was underground. Tr. 264. On crossexamination, although he may have filled out an “escort” sheet which would contain very basic 

information, such as stating that the inspector issued a (d) order on Unit 2, he could not be sure 

that was done in this instance. Tr. 265. It was in his statement that Hayden asserted that everyone 

had been pulling down ribs. Tr. 266. Hayden stated that whenever a (d) order is issued, a 

statement is to be made. Tr. 267. His statement was subsequently admitted as Exhibit R-4. Tr. 

280. Although he asserted that the process at the mine was for each miner working at the unit to

create a statement, he couldn’t speak to whether that was actually done, nor could he inform

whether Chris Robinson or Todd Seilhymer created their own statements. Tr. 269.

He then backed away from his earlier remark that statements were part of the mine’s protocol.

Tr. 270.

After the order was issued, Hayden did not return to the unit over the next seven shifts to 

view the conditions. Tr. 270. However, he acknowledged awareness of what had to be done to 

abate the cited conditions. This included knowledge that the amount of material from the bad ribs 

that was placed near the face was such that it was difficult to run gas checks along the face. Tr. 

271. Confronted with the disparity between his testimony that Fishback noted only four or five

cracks in the areas and the great effort it took to take down the bad ribs, Hayden answered that

“you can bring down whatever you want if you start picking at it all day long.” Tr. 272.

However, he conceded that, with ribs, small pieces can come down, but large ones can fall too.

Tr. 273. Importantly, he admitted that one can’t know if a small piece or a large one may come

down. Further, cracks can be an indicator of loose ribs. Tr. 274. Cracks, he conceded, are an

indication that there is something wrong with a rib. Id. Hayden was with the inspector when he

was taking the photographs. Tr. 279.

Zachary Hudson next testified for the Respondent. Tr. 281. In January 2016, he was a 

“fill-in” face boss at the mine. He was part of the B crew and, as alluded to in earlier testimony, 

the crews rotated, so that one crew would work two weeks on days and two weeks on the 

afternoon shift. Tr. 281-282. Though he agreed there was a mud seam present, and that the 

condition would cause the ribs to flake out, there was “nothing real big. You know, just push out 

little chunks of coal or something.” Tr. 283. Hudson agreed that he had testified in an earlier 

proceeding regarding an order issued December 22, 2015 involving rib control on Unit 2. 

Tr. 283. Following that order, additional steps were instituted to address rib control. Id. 

This consisted of having a designated person prying down ribs. Id. He then added that 

“everybody” was participating in the rib control issue. Tr. 284, 285. He also contended that he 

would have meetings with the crew and that they talked about the rib issues “since we knew that 

we had that mud vein.” Tr. 284. 

While Hudson contended that everyone was attentive to the rib issue, he asserted that 

“just because the rib was gapped, doesn’t mean that it was ready to come down because some of 

that stuff was still intact pretty damn good.” Tr. 287. However, he asserted that they would still 

check on them, though again, at times, they turned out not to be loose. Tr. 288. He did not agree 

with earlier testimony that miners would hand dust after a rib had been pried down. It was not, he 

stated, a common practice to hand dust. Tr. 288-289, 307. When, as a result of rib issues, timbers 

41 FMSHRC Page 290
or bolting resulted, it would be noted in the mine reports. Ex. R-5, Tr. 289. He agreed that the 

report reflects that ribs were pried. Tr. 291-294. 

Then directed to his January 13, 2016 section report, he noted that they were not running 

both sides of the split area unit that day. Tr. 296. MSHA inspector Danny Mann was there for 

part of that time, but Hudson stated that inspector did not raise any rib issues with him. Tr. 299. 

Hudson did not recall speaking with Fishback about his order, though he did recall Fishback 

meeting with the miners about the issue. Tr. 300. There was some history between Fishback and 

Hudson in that, according to Hudson, for that December 2015 order, Fishback asserted that 

Hudson was “a bad boss.” Tr. 301. For that reason he kept his distance from Fishback during the 

January 13 event, not wanting to have any conflict in front of his crew. Tr. 301. 

However, Hudson did hear his crew talking with Fishback. Specifically, he recalled 

Woody Hembry telling Fishback that he did not feel things were unsafe because they were 

“constantly prying down ribs.” Tr. 302. Hudson also disagreed with Fishback’s recording in Ex. 

P-1 regarding the claimed loose coal ribs dimensions, stating that he never saw anything of that

size, remarking that dimension would be “the whole size of the pillar.” Tr. 302-303.

During cross-examination, when asked about his knowledge of two previous 104(d)(2) 

orders for violations of section 75.202(a), Hudson stated he did not know what that meant and 

that he didn’t know what 202(a) referred to. Tr. 305. Referencing Ex. P-8, Hudson said he could 

not recall those previous orders. He then explained that in his earlier reference to Fishback’s 

meeting with the mine crew, he was referring to the December order for loose ribs, when he and 

Fishback exchanged words, meaning they had a confrontation. Tr. 306. He did agree that, 

following the time when he had words with Fishback, additional training ensued. This involved 

“examining the ribs a little bit better.” Tr. 306. 

He did admit that, if one sees a gap, one always wants to try and eliminate that. Tr. 309. 

He also agreed that in this unit a rib could come down anytime, because that mud seam was a 

chronic rib problem in this particular section of the mine. Tr. 309. 

Chase Reneer was next called by the Respondent. In January 2016 he was a roof bolter 

on Unit 2 working the B crew. Tr. 317. Prior to the event in issue he had worked on Unit 2 for 

about three years. He described the mud seam as “a fragile, brittle separation in between the coal 

seam.” Tr. 319. To him, this meant the seam was not as sturdy. However, despite its presence, he 

described the effect as only “little pieces coming out ... nothing big.” Id. He maintained that 

everybody participated in roof control “[e]very day.” Tr. 320. It was his testimony, in effect, that 

the miners were quite diligent in dealing with the ribs. Tr. 319-321. 

Addressing the day in issue, January 13, 2016, he was working the day shift then. 

Ex. R-6 reflects where he bolted on that shift. Before he started bolting on that shift, he said he 

saw evidence of rib prying. Tr. 323. There he noted a corner that had been pried and that it had 

been hand dusted. Tr. 323-324. He also contended seeing other areas that had been spot bolted, 

and during the shift itself, he saw miner John Butler prying ribs. Tr. 325. 

41 FMSHRC Page 291
He further asserted that Fishback spoke to him about a loose rib between entries 4 and 5. 

Tr. 326. Though he tried to pry it, it would not come down. Tr. 326-327. He then used a pinner 

but only a piece about the size of a tissue box came out. Ultimately it only came out after great 

effort. Tr. 328. He also supported the testimony of an earlier witness that, when Fishback was 

meeting with the miners, he directed Joe Frederick to pry down a rib, but nothing would come 

down. Tr. 329. After the order was issued, everyone had pry bars, trying to bring material down, 

but he contended that only “small, crumbly” stuff came down. Tr. 331. 

On cross-examination, Reneer agreed that the mud seam was a well-known condition in 

that unit. Tr. 333. He remained on the unit following the issuance of the order. Tr. 335. 

He admitted that one can’t tell, simply by looking at a rib whether the material will come down 

and he agreed that one starts the effort with a pry bar. One cannot say, he admitted, whether a 

given rib issue will come down in six minutes or six months. Tr. 336. He stated that they 

installed at least 200 bolts in one shift following the order’s issuance. Tr. 337. He could not 

recall if he was present when Inspector Tisdale returned to the mine with the idea of lifting 

Fishback’s order, nor could he recall if he was present when Fishback returned after that and did 

lift the order. Tr. 339. To sum up the practice they were employing, Reneer stated that if the 

miners saw something loose they would try and pry it down. But if it did not come down, “then it 

was left alone.” Tr. 340. 

At the start of day two of the hearing, testimony began with Joseph Frederick, who was 

called by the Respondent. Tr. 348. In January 2016 he was working in Unit 2 on the B crew. Tr. 

349. Zach Hudson was his section foreman. Frederick had been on that unit for five years. He

agreed there was a mud seam, but described the effect as causing material to “flake out,” and that

the pieces were “[n]ot very big most of the time.” Tr. 350. This was dealt with by prying the

material down and then scooping it up for the feeder. He stated that they were told to pry down

the material if seen. Tr. 351. On the day in issue, January 13, Frederick was running the scoop, a

machine with a bucket on the front of it. Tr. 352. Most of the time, scooped material was put into

the faces and from there loaded up for the feeder. Frederick asserted that he was doing scaling on

that day, using a pry bar or the scoop bucket itself. Tr. 353. After the order was issued shutting

down the unit, Frederick stated that he used both a pry bar and the scoop for scaling. Tr. 353. He

also asserted that he saw others engaging in scaling that day, stating that “multiple ones” were

doing that. Tr. 354. He added that the scaling and scooping were being done both in the last and

in the second to last open crosscut. Tr. 355. Asked about the size, how big the scaled pieces

were, Frederick responded, “[m]aybe a couple feet big, yeah, couple feet big, I guess ... [n]ot

very big ... there was some smaller ones ... on average probably about two feet around or so.”

Tr. 355-356. He disputed the measurement listed in Ex. P-1, stating it was “not that big.” Tr. 356.

Asked about the meeting with the MSHA inspector that day, he informed that the 

inspector told them about the hazards from loose ribs. Tr. 357. Then the inspector pointed out a 

rib he believed was loose and asked Frederick to attend to it. Id. He worked at it for 10 minutes 

but “got very little out of it.” Id. Frederick stated there was a small crack in the rib, but asserted it 

was not loose. Tr. 358. 

On cross-examination, Frederick agreed that at times the rib material would fall out on its 

own. When examining the ribs, he stated he would look to see if “it looked loose.” A crack, he 

41 FMSHRC Page 292
stated, might indicate a loose rib, but if one pried and it did not come down, then he would leave 

it alone. Tr. 359. Frederick took the position that the mud seam did not affect the stability of the 

ribs. Id. He also disputed that they were having difficulty with loose ribs flaking out the entire 

time, asserting it was not the entire time. Tr. 360. However, he did admit that the mud seam 

created issues with the ribs. Id. Further, he agreed that the miners were always talking about the 

mud seam and how it was affecting the ribs. Id. While he asserted that most rib pieces were not 

big, some were larger, “maybe four feet or so.” Tr. 362. He agreed that a rib piece of that size 

could seriously injure a miner. Id. In many respects, Frederick could not recall details associated 

with the order but he did acknowledge that rib control is one of the rules to live by. Tr. 361-366. 

Jonathan Butler then testified for the Respondent. At the time in issue he was working in 

Unit 2 as a ventilation curtain operator. Tr. 368. He has five years of mining experience. 

Tr. 369. He agreed there was a mud seam in that area, but he didn’t think it had an effect on the 

ribs. Tr. 370. Though some rib prying was needed it was to deal with “flaking.” Id. The crew did 

talk about rib prying and to take care of any potential hazards and to “just look out for each 

other.” Tr. 371. He maintained that he would “keep an eye out there [for rib issues]. Id. He 

repeated that the rib material he encountered was just “small, flaky material that ... wouldn’t 

amount to much.” Tr. 372. As with several other witnesses for the Respondent, when asked 

about the rib dimensions referred to in Ex. P-1, he disagreed with those numbers, adding “[n]o, 

I’ve never seen something to this day that big.” Tr. 373. In terms of addressing rib issues, Butler 

looked for things with a big gap that one could actually get a pry bar in. One does not, he said, 

“go just looking to pry stuff down if that’s not ready.” Id. Explaining further, he stated there 

“wouldn’t really be a crack in it ... [i]t would just be a solid seam.” Tr. 373-374. It was his view 

that if one is working on a rib that isn’t ready, there’s a greater hazard in trying to do that. Tr. 

374. He would determine this by putting some pressure on it and if it didn’t move it was not

wise to pry on it. Tr. 374.

Butler maintained that he was prying ribs that day before the order was issued. Tr. 375. 

As to where he had been doing that prying, he responded, “[i]t had been all over.” Id. 

However, he reiterated that the unit’s ribs “looked good.” He saw no “major hazards ...[nothing] 

besides the flaky material.” Tr. 375-376. In fact, he expected that the inspector would be 

“pleased with the work we had done.” Tr. 376. Later, Butler was part of the meeting with the 

inspector, who informed that the ribs were still bad and didn’t look any better. Id. 

Apparently, the miners were taken aback by the Inspector’s reaction. Further, Butler 

confirmed that Fishback asked Joe Frederick to attend to a rib that he felt needed attention. 

However, Frederick, though he worked at it, could not get the rib to move. In Butler’s view, 

trying to move a rib that is not ready to come down creates a greater hazard than leaving it alone 

for the time being. Tr. 380. 

On cross-examination, Butler informed that the rib that Frederick could not bring down 

was not where the bolter cable was located. Tr. 378. He reiterated that the material he brought 

down was flaky, not very thick, but rather thin. Tr. 379. When asked for more specifics about the 

size, he stated they could be one to two feet. Id. He agreed that one needs to see a crack to tell if 

a rib is ready to come down. Id. Elaborating, he agreed that seeing a crack the whole length of a 

rib in the pillar means the rib needs to come down. Tr. 380. However, upon seeing a crack in the 

41 FMSHRC Page 293
coal seam of 40 to 50 feet in length one needs to pry on that and if one doesn’t get any 

movement, it’s not ready to come down. Id. Butler did not believe that the mud seam affected the 

stability or integrity of the pillars. Id. In circumstances where a rib would not come down, 

Butler’s approach was to “[k]eep an eye on it.” Tr. 382. However, he conceded that, in such 

circumstances, he “probably [would] put flagging around it.” Tr. 383. Speaking generally, he 

believed that it would probably take days for a rib that was not ready to fall, not minutes. Id.

There is certainly an element of uncertainty to the issue however, as Butler conceded that he has 

seen a rib fall out on its own without any warning. Id. Tr. 383-384. 

Following the issuance of the order, Butler started taking care of the ribs during the two 

and a half hours remaining on his shift. “Everybody started scaling.” Tr. 384-385. He admitted 

that, after his shift ended, another shift continued with the abatement, that is, as Butler put it, 

“[f]ixing the problem.” Tr. 385-386. 

Todd Seilhymer was the final witness for the Respondent. At the time of the order in this 

matter, he was the mine superintendent, a position he also held in December 2015. Tr. 395. 

At the time of his testimony in this matter he was no longer in that role, having moved to the 

compliance department. Speaking to the mud seam which is a central topic in this matter, 

Seilhymer agreed to what is undisputed – there is a mud seam throughout the mine. Initially, it 

was small, a half-inch, but as they progressed into Unit 2 the seam continued to thicken. Tr. 397. 

Moisture, he explained, affects the mud seam and the seam would deteriorate creating pressure 

on the coal, which would then form cracks in the ribs. Tr. 398. At first the seam would look 

normal but then it would deteriorate, with fractures or cracks appearing. Id. This condition was 

primarily controlled by scaling. Id. However, consistent with other witnesses, Seilhymer 

maintained that most of the material came out in small pieces and it could be controlled as long 

as one continued to do scaling. Tr. 399. To address this, it was decided to have one person 

designated to continuously scale across the section. Tr. 399-400. He added this did not mean 

only one person did scaling. He maintained that the approach was if anyone saw something that 

person was to pry it down. Tr. 400. 

Seilhymer also contended that, after the December order, he would visit Unit 2 and would 

check on the rib conditions when making those visits. It was his assertion that he would see 

miners scaling during those visits, including the foreman. Tr. 401. 

Ex. R-9, which was a citation for a failed rock dust sample, on Unit 2, at crosscut seven, 

five to six intake, was shown to Seilhymer. Tr. 404. The sample was taken on January 5, 2016. 

That citation was subsequently terminated on January 13, 2016 by Inspector Mann. The point of 

Respondent’s Counsel introduction of this exhibit was that Inspector Mann went through the area 

marked in green, as reflected in Ex. P-2. Tr. 406-407, but that he did not issue any rib control 

violations at that time. Tr. 407 and Ex. R-11. On January 6, 2016, Inspector Mann was also at the 

mine at Unit 2. Tr. 412, Ex. R-13. No rib control violations were issued by Mann on that day 

either. Tr. 413. 

Directed then to the matter in dispute, Seilhymer stated that on that day he received a call 

that Fishback had issued a (d) order on Unit 2 for ribs. Tr. 414. He then proceeded underground 

with mine manager Chris Robinson. They then met up with Fishback who “indicated [to them] 

41 FMSHRC Page 294
that the ribs were terrible, [that he] was not pleased with the intake [and] said [that] it was 

horrible and [he] couldn’t believe that [the mine] would have allowed men to travel out through 

that at a primary escapeway [which is in the number six entry].” Tr. 415. Thus, Fishback’s issues 

involved that escapeway and Unit 2. Tr. 416. The escapeway starts at the unit’s tail piece. Id. 

Upon arriving at the unit, he saw that “guys had already started scaling ribs on the unit.” Id. 

Seilhymer described some of the areas he walked. Tr. 417, Ex. P-2. In those areas, he described 

that the ribs looked good. There were some cracks, he acknowledged, but overall he believed that 

the ribs looked good and he added that the area was well rock dusted. Tr. 418. He described a 

crack as similar to a spider web but with a gap one can see down inside. In most cases, a gap is 

more dangerous because it indicates that the material is pulling away. Id. He admitted that the 

presence of a crack shows there is pressure present. That pressure causes the crack. Tr. 419. The 

cracks did not concern him at least in the sense that he did not feel there was a need to pull down 

the ribs at that time. Id. He didn’t see any gaps, but admitted there might have been some. Still, 

he saw only small pieces. Id. While he saw one or two places that indicated some scaling may 

have been done, he did not see anybody scaling in that area while he was there. Tr. 420. 

Seilhymer took many photos that day, some “80 or 90.” Tr. 421. Ex. R-14. Photo 1, from 

those photos, was according to Seilhymer, generally representative of the rib material he saw that 

day. Tr. 422. When he took the photos, Inspector Fishback was not with him. 

The order had already been issued. Tr. 423. He maintained that the photos he took were not postabatement efforts. Id. As with the other witnesses for the Respondent, Seilhymer maintained that 

only little pieces came loose. Tr. 426. He stated that the photos he took were representative of the 

conditions in the primary escapeway and also in the five or six crosscuts previously discussed by 

the witness. Tr. 431. 

Seilhymer also informed that he was with Fishback when the order was terminated. 

Fishback required some additional prying but “most of it was small pieces.” Tr. 432. The theme 

presented by Seilhymer was essentially that, in some instances, ribs Fishback believed needed 

scaling took great effort to bring them down. Typically, only small pieces were produced from 

those efforts. In one instance prying didn’t work, nor did bumping the rib with a scoop. 

Ultimately, that instance required a scoop operator “ramming” the rib and even then, initially, the 

rib did not fall out. Tr. 437-439. Driving a machine into a rib is not a normal rib control 

procedure. Tr. 440. 

On cross-examination,14 Seilhymer agreed that all of the photos he took were basically in 

the primary escapeway, which is entry six on the map. Tr. 449. He took no photos in entry 8, nor 

11, nor in any of the entries in crosscut 10, nor entry 4. Tr. 449-450. He agreed that he went 

down entry 6 and that was the only place he took photos. Tr. 450. He could not recall how long it 

took to abate the cited conditions. Id. He could not recall giving information to Inspector Tisdale, 

nor giving him a form. Tr. 450-451, Ex. P-7, at 4. As for the number of miners it took to abate 

the order, so that it could be terminated, Seilhymer acknowledged he may have stated this to 

Fishback but could not recall beyond that. Tr. 452. Though he admitted being down in the cited 

section between when the order was issued and when he took his photos, he did not know how 

14 An interesting side note: Seilhymer, like Fishback, could not precisely identify the 

location of the photos he took either. In terms of how he knew the exact identification of a 

location, he simply responded, “[b]ecause I took the photo.” Tr. 442, 444. 

41 FMSHRC Page 295
much material was up at the working face. Tr. 454. Significantly, he admitted that he did not 

walk the entire section. Id. He did not think he went across the face, “because normally, the face 

area didn’t have deterioration as the out by areas.” Id. (emphasis added). Though he maintained 

that a person was designated to do scaling, he could not identify the individuals so assigned. Tr. 

456-457. Seilhymer admitted that scaling was the chief remedy applied to address the situation.

Tr. 457. Timbering was not discussed, nor was bolting into the ribs, nor wrapping the ribs with

mesh or wire, primarily, he maintained, because the material was so small. Id.

The Court had a few questions for Mr. Seilhymer. Showing him Ex. P-2, Seilhymer 

acknowledged that he did not walk the entire area, as marked in orange highlighter on that 

exhibit that Inspector Fishback walked on the day in issue. Tr. 460-461. He stated that “[m]ostly 

[he] walked in by the tail piece other than entry number six. [He] walked it in its entirety.” Tr. 

461. Asked to estimate the percentage he walked of the area Fishback covered, he responded,

“40 to 50 percent.” Id. When he walked that 40 to 50 percent he was by himself. Id. As the mine

superintendent at the time of this event, he acknowledged he was familiar with the cited

standard: 30 C.F.R. § 75.202. Tr. 462. He was then asked, given the areas he just testified about

where he walked following the order’s issuance, did he see violations of that standard. Seilhymer

responded, “[v]iolations, yes.” Tr. 463. With refreshing candor, and appreciated by the Court, he

affirmed that as his view twice more. Id.

Applicable Law 

Unwarrantable Failure Violations 

As the Commission has noted, “[t]he unwarrantable failure terminology is taken from 

section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator 

in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987), the 

Commission determined that unwarrantable failure is aggravated conduct constituting more than 

ordinary negligence. Unwarrantable failure is characterized by such conduct as “reckless 

disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 

2002-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck 

Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s 

unwarrantable failure test). Whether the conduct is “aggravated” in the context of unwarrantable 

failure is determined by looking at all the facts and circumstances of each case, including (1) 

the extent of the violative condition, (2) the length of time that it has existed, (3) whether the 

violation posed a high risk of danger, (4) whether the violation was obvious, (5) the operator’s 

knowledge of the existence of the violation, (6) the operator’s efforts in abating the violative 

condition, and (7) whether the operator has been placed on notice that greater efforts are 

necessary for compliance. Consolidation Coal Co., 35 FMSHRC 2326, 2330 (Aug. 2013), citing 

Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 1346, 

1350-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on 

other grounds, 195 F.3d 42 (D.C. Cir. 1999); see also Consol Buchanan Mining Co. v. Sec’y of 

Labor, 841 F.3d 642, 654 (4th Cir. 2016). These factors must be viewed in the context of the 

factual circumstances of a particular case. Consolidation Coal Co., 22 FMSRHC 340, 353 (Mar. 

2000).” American Coal Co., 39 FMSHRC 8, 9 (Jan. 2017). 

41 FMSHRC Page 296
Related to that is the subject of negligence, the Commission has noted that it “evaluates 

the degree of negligence using “a traditional negligence analysis.” Mach Mining, LLC v. Sec’y of 

Labor, 809 F.3d 1259, 1264 (D.C. Cir. 2016) (citation omitted). Because the Commission is not 

bound by the Secretary’s regulations addressing the proposal of civil penalties as set forth in 30 

C.F.R. Part 100, the Commission and its Judges are not required to consider the negligence

definitions in 30 C.F.R. § 100.3(d). Id. at 1263-64.

“Significant and Substantial” Violations 

As the Commission has stated, a violation is S&S if, based on the particular facts 

surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 

3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the 

Commission further explained that in order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard -- 

that is, a measure of danger to safety -- contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably serious nature. Id. at 3-4 (footnote omitted); 

accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. 

Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). See also, Consol 

Pennsylvania Coal Co., 39 FMSHRC 1893, 1899 (Oct. 2017). 

Flagrant Violations Under the Federal Mine Safety and Health Act 

In discussing preliminary matters with the parties in chambers before the hearing in this 

case began the Secretary indicated that he would proceed under a “repeat flagrant” theory of the 

case, instead of a “reckless flagrant” theory. The Secretary reiterated this litigation position in his 

opening statement. Tr. 15. The distinction between the two theories is more than academic, as 

the Secretary has two potential pathways to demonstrate a “repeat flagrant” violation under 

current Commission case law. 

The flagrant violation provision is contained in Section 110(b)(2) of the Federal Mine 

Safety and Health Act (“Mine Act”). The provision was added to the Mine Act by the Mine 

Improvement and New Emergency Response Act of 2006 (“MINER Act”) in the wake of the 

Sago Mine Disaster. Section 110(b)(2) provides that: 

[v]iolations 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). 

41 FMSHRC Page 297
The phrase “reckless or repeated failure” has been interpreted to encompass two types of 

“flagrant” violations. The first is a “reckless flagrant” violation, where the operator failed to take 

the steps a reasonably prudent operator would have taken to eliminate the known violation and 

consciously or deliberately disregarded an unjustifiable, reasonably likely risk of death or serious 

bodily injury. At hearing, the Secretary disclaimed his intent to pursue a reckless flagrant theory 

at hearing on this matter. Accordingly, there is no purpose served for the Court to discuss the 

reckless flagrant theory in greater detail here. Tr. 8. 

As to a “repeated flagrant” violation, the Commission has established that can be proven 

in two ways. 

 Commission Interpretations of “Repeated Flagrant” Violations Under Section 

110(b)(2) 

The Commission currently recognizes two methods that the Secretary may use to prove a 

repeated flagrant violation under section 110(b)(2) of the Mine Act. The first approach – known 

as the “narrow” approach, requires the Secretary to prove that “there was a single, continuing 

violation serious in nature that the operator could or should have become aware of at some point, 

i.e., known, such that it had multiple opportunities to address the condition, but did not avail

itself of those opportunities.” The American Coal Co., 38 FMSHRC 2062, 2065 (Aug. 2016)

(AmCoal). In AmCoal, the Commission declined to delineate exactly how many opportunities to

address the cited condition are necessary to prove a “repeated failure” under the narrow

approach. The Commission did however agree with the parties in AmCoal that “two or three

failures might amount to a flagrant violation in certain circumstances but not in others,

depending on the particular facts.” Id. at 2073. The principal difference between the “narrow”

and the “broad” approach is that, under the “narrow” approach, the operator’s past violative

history plays no role in determining whether an operator “had multiple opportunities to address

the condition.” Id. at 2065.

The second approach – known as the “broad” approach – permits the Secretary to prove 

that the operator failed “to take reasonable steps” to eliminate a “serious, known violation” by 

reference to the operator’s past violation history. The “broad” approach was first contemplated 

by the Commission in Wolf Run Mining Co., 35 FMSHRC 536 (Mar. 2013) (Wolf Run). In Wolf 

Run, the Commission reversed the Administrative Law Judge’s conclusion that past violative 

conduct may not be considered in determining whether a cited condition satisfies the repeat 

flagrant provision. However, the Commission did not articulate a standard for the Judge to apply 

the “broad” approach on remand, leaving the issue of which prior violations were relevant to the 

Judge’s discretion. 

41 FMSHRC Page 298
While both the “broad” and “narrow” approaches remain valid under existing 

Commission precedent, the Commission in AmCoal again expressly left the issue of how to 

properly standardize the broad approach for another day, due to lack of consensus.15 

Although the Secretary indicated that he intended to pursue this matter under a repeat 

flagrant theory, he did not state if his arguments would be restricted to the “broad” or “narrow” 

approaches. While both approaches remain valid under Wolf Run, the standard for utilizing the 

“broad” approach to find a repeat flagrant violation is evolving. By contrast, the “narrow” 

approach is largely settled Commission law under both Wolf Run and AmCoal. 

Discussion 

This case involves four distinct issues: whether the Respondent, Peabody Midwest 

Mining, LLC, violated 30 C.F.R. § 75.202(a), by not supporting or otherwise controlling ribs in 

certain identified entries on the MMU-002 and MMU-022 active working sections; whether the 

alleged violation was “significant and substantial; whether such violation was an “unwarrantable 

failure;” and finally, whether such violation constituted a “flagrant” violation under the Act. 

The Court read and fully considered the contentions advanced in the parties’ post-hearing briefs. 

That any particular contention raised in those briefs is not explicitly discussed does not mean that 

it was not considered, but rather that the Court’s findings of fact and analysis implicitly 

addresses the subject. 

The Violation Was Established 

The section 104(d)(2) Order, No. 9036925, alleged loose coal ribs in 13 entries on the 

mine’s MMU-002 and MMU-022 active working sections. The Court finds that the testimony of 

Inspector Fishback and that of Inspector Tisdale established that ribs in the cited areas were not 

supported or otherwise controlled to protect persons from hazards related to falls of the ribs. 

Accordingly, the violation was established. While the inspectors’ testimony was sufficient, it is 

noted that Todd Seilhymer, who was the mine superintendent at that time, conceded that the 

conditions cited by the inspector constituted a violation of the standard invoked, 30 C.F.R. § 

75.202(a). 

15 AmCoal produced three separate opinions on the issue of the “broad” approach. 

Commissioners Cohen and Young concluded that the past history of similar violations was at 

least “generally relevant to the determination of flagrancy," as “the essence of a repeated flagrant 

violation is a condition which threatens miners with serious bodily injury or death and which has 

been ignored or disregarded often enough to demonstrate intolerable irresponsibility.” 

AmCoal, 38 FMSHRC at 2090. (Cohen, C., concurring, joined by Young, C.). Commissioners 

Young and Cohen stated that “Judges should considerer allegations of repeated failure case-bycase, and should consider the operator’s history of violations where it may be probative of the 

issue.” Id. at 2090-91. Commissioners Jordan and Nakamura would have declined to reach the 

issue, as they concluded the conditions for a flagrant violation had already been satisfied under 

the “narrow” approach to proving a repeat flagrant violation. Id. at 2094-95 (Jordan, C., 

concurring, joined by Nakamura, C.). Commissioner Althen would have disregarded the broad 

approach entirely as unworkable, which would prevent the Secretary from ever considering an 

operator’s past history of violations. Id. at 2099 (Althen, C., concurring in part). 

41 FMSHRC Page 299
The Violation Was Significant and Substantial 

With the violation established, the first Mathies element has been met. The second 

Mathies element, a discrete safety hazard associated with the violation was also met, as the 

Secretary observes, by “the fact it is well known that falling rib material presents a discrete 

safety hazard to miners working underground.” Sec. Br. at 36. As the Secretary also notes, 

“Section 75.202(a) is identified as a “Rule to Live By” standard, meaning it is one of the 

standards most commonly contributing to fatalities in the mining industry. Thus, it is sufficient to 

conclude that the violation contributed to a discrete safety hazard, as an inadequately supported 

rib could fall, presenting a risk of injury to any miner who happened to be present upon the rib 

falling. The American Coal Co., 36 FMSHRC 1311, 1326 (May 2014) (ALJ), Peabody Midwest 

Mining LLC, 2019 WL 935968, at *9 (Feb. 2019) (ALJ). There is more to say. The Commission 

in Newtown Energy, 38 FMSHRC 2033 (Aug. 2016) stated that, for the second prong of Mathies 

to be satisfied, there must be “a determination of whether, based upon the particular facts 

surrounding the violation, there exists a reasonable likelihood of the occurrence of the hazard 

against which the mandatory safety standard is directed.” Id. at 2038. Given that the record 

establishes that at least some of the ribs needed scaling, those conditions required prompt 

attention, as the record also establishes that there was exposure to them. Respondent’s witness 

Frederick himself, while affirming that he could not remove much of the rib Fishback identified 

as a problem, acknowledged that some of the rib pieces were large – about two to four feet – and 

that pieces that large could cause a serious injury. Tr. 355, 362. Thus, the discrete safety hazard 

was not an academic exercise – it was reasonably likely that the hazard of a falling rib would 

occur, given the circumstances of the violation in this case. 

As for the third and fourth Mathies criteria: a reasonable likelihood that the hazard 

contributed to will result in an injury, and a reasonable likelihood that the injury in question will 

be of a reasonably serious nature, these elements are supported by the testimony of Inspector 

Fishback. Miners regularly walked and worked in the area inspected by Fishback. Tr. 117, 175. 

Assuming, as required by the Commission in Newtown Energy, that the hazard identified is a rib 

fall, the presence of miners in the area makes it reasonably likely that the hazard contributed to 

will result in an injury. This satisfies the third prong of Mathies. Further, based on at least some 

number of the ribs for which he had safety concerns, the exposure to those concerns by miners in 

those areas, and Fishback’s credible testimony that, if a miner were struck by a falling rib, the 

injury would be of a reasonably serious nature, the fourth prong of Mathies was established. 

Accordingly, Fishback’s order and accompanying testimony, supports his finding that the 

violation was S&S. Tr. 115-119. That Inspector Tisdale credibly testified to observing material 

from pried ribs falling into the travelway, at a time when the mine believed that the conditions 

had been sufficiently addressed to warrant lifting the order, supports those elements as well. 

The Violation Was Not an Unwarrantable Failure 

As mentioned above, unwarrantable failure, is more than ordinary negligence, and has 

been described as conduct involving “reckless disregard,” “intentional misconduct,” 

“indifference,” or a “serious lack of reasonable care.” Viewing the credible testimony as a whole, 

the Court cannot conclude that those terms apply in this instance. In reaching this conclusion, the 

Court has considered all the facts and circumstances, including (1) the extent of the violative 

41 FMSHRC Page 300
condition, (2) the length of time that it has existed, (3) whether the violation posed a high risk of 

danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the existence of 

the violation, (6) the operator’s efforts in abating the violative condition, and (7) whether the 

operator has been placed on notice that greater efforts are necessary for compliance. 

 Before specifically addressing those seven factors, the Court takes note of its previous 

decision involving this mine, which addressed the same mud seam and the same section as in this 

matter, together with the specific facts involved here. In that earlier decision, Peabody Midwest 

Mining, LLC, 40 FMSHRC 87 (Jan. 2018) (ALJ),16 the Court determined that the violation did 

not involve an unwarrantable failure by Respondent, Peabody Midwest. There, speaking to a 

violation of the same standard, 30 C.F.R. § 75.202(a), this Court found that “the Respondent was 

making some good faith efforts to address the ribs [and that] [t]o be fair, the mud seam was a 

bedeviling situation; the conditions could change as that seam dried out and it was not entirely 

unreasonable for miners to reach different conclusions about the timing of the need for action to 

control the ribs.” Id. at 141, addressing Order No. 9036922. (emphasis added). 

As discussed below, the Court believes that its previous analysis similarly bears upon the 

unwarrantable failure claim in issue here. While the Court has determined that the standard was 

violated, concluding that Inspector Fishback did observe areas of rib rash and broken rib 

conditions, and that he found various rib cracks and that some of them were gapped and had rock 

dust behind them, the unwarrantable failure issue is not similarly supported by the record. 

For example, per the inspector’s testimony, the miner accompanying him, Mr. Hayden, 

did not remain mute, but rather voiced that the mine had been prying on the ribs when Fishback 

asserted otherwise. Further, Fishback, repeatedly responded, when asked if he saw anyone 

working on the ribs during this time, that he could not remember such activity. Thus, he was 

unable to deny that such activity was occurring. 

Also supporting the Court’s determination that unwarrantability was not established is 

that Fishback himself viewed the support for his order as resting upon the entirety of the rib 

conditions he asserted finding that day. Thus, he did not commit that any single instance alleged 

to have been found would constitute a violation. Tr. 100-101. It is also worth noting that, 

regarding the many photographs he took that day, Fishback admitted that he could not detect 

such material on the ground in the photos and counsel for the Secretary also stipulated that in 

photos 1 through 22, 35, 36, and 53 through 55 of Ex. P-5, they do not show material on the 

ground. Tr. 142-143. 

Additionally, the issue of when a rib needs to be taken down is not always a simple 

determination. There can be good faith differences on the timing for such action. Further, in the 

Court’s view, that Fishback asserted by inquiring “don’t you think we need to pry some ribs 

around here,” illustrates that whether a given rib needs immediate attention can be a subject of 

legitimate debate. Tr. 113. As Inspector Tisdale’s testimony shows, while some ribs he viewed 

came down easily, others required “effort to take them down.” Tr. 202. 

16 The Court’s January 26, 2018 Peabody Midwest Mining LLC decision also 

encompassed Docket No. LAKE 2016-0232, but none of the five orders in that docket involved 

30 C.F.R. § 75.202(a), the standard in issue in this case. 

41 FMSHRC Page 301
Zachary Hudson, a fill-in boss at the time in issue, testified along the lines of the 

Respondent’s other witnesses – namely that the mud vein presented issues but that those ribs 

which did need attention produced only small chunks of material. Tr. 283. He also was of the 

view that a gapped rib was not necessarily indicative that it was loose in fact. Because there was 

some past friction between Hudson and Fishback, the Court has relied more on the testimony of 

the Respondent’s other witnesses in reaching its conclusions about the conditions. This does not 

reflect disbelief over Hudson’s testimony. Rather, because other witnesses for the Respondent 

support the Court’s conclusions, it is unnecessary to place great emphasis on Hudson’s 

testimony. 

Chase Reneer, a roof bolter on Unit 2 working the B crew at the time in issue, also 

testified that the rib pieces that came out were only little pieces, nothing big. Tr. 319-321. 

He too saw miners attending to rib issues through prying. Also, Reneer had a similar experience 

to that expressed by other miners, in that upon Inspector Fishback identifying a problem rib, he 

was unable to pry the rib down. Tr. 326-327. He also affirmed the incident that a rib identified as 

a problem by Fishback could not be brought down by Frederick. Thus, Reneer’s testimony 

supported the view that determining if and when a rib needs attention can be subject to good 

faith differences. Applying that perspective, the mine applied a practice of trying to pry down a 

suspect rib, but if it would not come down it was left alone for the time being. 

Jonathan Butler, then working as a ventilation curtain operator in Unit 2, held to the 

theme of many of the other witnesses for the Respondent, that the material which came down 

from the ribs was small and flaky. Tr. 372. Similar to the other witnesses for the Respondent, 

Butler expressed the view that sometimes it is premature to pry down a rib, that one doesn’t “go 

just looking to pry stuff down if that’s not ready.” Tr. 373. 

Todd Seilhymer also testified along the lines of the other witnesses for the Respondent, 

asserting that the condition was primarily controlled by scaling and that most of the material 

came out in small pieces. Tr. 398-399. He also stated that, when on the cited unit, he observed 

miners performing scaling. Tr. 401. As with the other witnesses for the Respondent, Seilhymer 

distinguished between cracks and gaps, with the latter needing prompt attention. 

 

Upon considering the testimony of several of the Respondent’s witnesses and upon 

concluding that, embellishments aside,17 they presented credible testimony regarding the general 

condition of the ribs, the Court finds that there were legitimate differences of opinion as to the 

condition of the ribs and whether those conditions required immediate attention or watchfulness. 

17 Embellishments alone may not doom testimony. For example, the small, crumbly, 

flaky material so uniformly testified about by the Respondent’s witnesses is at odds with the 

amount of time it took to correct the rib issues and with the amount of material from those 

activities that had been placed at the face but even that is not easily resolved. This is because of 

testimony that the presence of the mud seam meant that one could pick at a rib and eventually 

bring material down, sometimes with great effort. Once the order was issued the mine had to 

make such efforts in order to resume production. Those efforts could have included ribs which 

were difficult to take down, as the record reflects instances where Fishback required attention to 

some ribs that required such efforts. 

41 FMSHRC Page 302
For example, Winters, and several other witnesses for the Respondent, described relatively small 

amounts of coal that came down with prying. Another example demonstrating that there can be 

legitimate differences of opinion as to when a rib needed attention, Travis Hayden, section 

foreman, presented the example of a rib that Inspector Fishback believed to be loose but that 

Hayden was unable to bring it down. Tr. 246. A second instance was offered where Fishback 

identified a rib he believed in need of attention, but the rib could not be pried. Tr. 256-258. 

Hayden also stated that he identified instances to Fishback where scaling had been done but it is 

noted again that the Secretary, who has the burden of proof, did not use the process of rebuttal 

testimony to contradict such claims. Tr. 260. 

Accordingly, when assessing credibility, the Court considered it to be important in this 

matter that the Secretary did not, through rebuttal testimony, refute the many assertions made by 

the Respondent’s witnesses. The Court cannot simply ignore those credible accountings, which 

reflected a difference between a perceived rib condition requiring attention and one that in fact, 

arguably, was premature for scaling. 

Another example demonstrating that the mine was not ignoring the rib issue and therefore 

of relevance to the unwarrantability issue, was that the mine also addressed the mud seam/rib 

issue by shearing corners with a continuous miner, thereby cutting it at an angle. This practice 

prevented such corners from falling out. Tr. 217. Also bearing on the unwarrantability issue, 

Fishback acknowledged that the pre-shift and on-shift record books reflected that the production 

crews had been prying down ribs. Tr. 115. It was unrebutted that that the mine always had a 

person dealing with ribs full time on each shift. Tr. 214- 215. 

Applying the seven factors, and speaking to the first four of them – (1) the extent of the 

violative condition, (2) the length of time that it has existed, (3) whether the violation posed a 

high risk of danger, and (4) whether the violation was obvious, there was credible, good faith, 

disagreement between the government’s and respondent’s witnesses for each of those factors. 

The same good faith disagreement was present as to factor (5) the operator’s knowledge of the 

existence of the violation, because the condition of at least some of the ribs did not call for 

scaling at that time. In such instances the existence of a violation was in issue. Factor (6), the 

operator’s efforts in abating the violative condition, has been discussed and, similarly, the last 

factor, (7), whether the operator has been placed on notice that greater efforts are necessary for 

compliance, while notice was present, it was acted upon by the operator, and greater efforts were 

made. 

The Violation Was Not Flagrant 

Because of the seriousness of an alleged flagrant violation, which encompasses 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 and because of the potential monetary 

impact, since a civil penalty up to $220,000 may be imposed where a violation is established, 

whether the alleged violation was flagrant is a notable issue. 

41 FMSHRC Page 303
The Secretary’s Repeated, not Reckless, Flagrant Claim 

As noted, the Secretary’s flagrant allegation rests upon a “repeated” failure theory, not 

the reckless failure theory. The repeated failure theory can be established in two distinct ways. 

There is the narrow approach, which is ahistorical, by showing either a single, continuing, 

serious in nature, violation that the operator could or should have become aware of at some point 

but, despite multiple opportunities to address the condition, the operator failed to take action. 

The other is the broad approach, which is established by showing that the operator failed “to 

take reasonable steps” to eliminate a “serious, known violation” by reference to the operator’s 

past violation history. 

The Narrow Repeated Claim 

In this instance the narrow approach fails because there was not a single, continuing, 

violation in the sense that the Court has not found that each rib described by the inspector was a 

violation. Some conditions in the cited area violated the standard, but each rib presented its own 

question. Thus, there was not a reflexive, required, remediating response for each location named 

by the inspector. Some indeterminate number of the claimed violative conditions did not violate 

the standard in the sense that scaling or some other action was not required then and there. The 

credible testimony, as described above, establishes this determination by the Court. 

In addition, some reasonable efforts were made by the mine operator to address the 

effects of the mud seam, through scaling when the miners determined such action was needed, 

by assigning one miner per shift devoted to rib safety and through the control method of shaving 

corners. 

Viewing the testimony overall, there is ample support for the conclusion that there could 

be honest differences of opinion regarding whether and when action was needed for a given rib 

location. That this was the case was shown by those instances when a rib was identified as a 

problem by Inspector Fishback but which would not come down or would not come down 

without unusual effort. Thus, in the Court’s view, based upon the record testimony, it was not 

inherently unreasonable for a miner to conclude that a crack in a rib needed to be watched as 

opposed to requiring immediate action. If the former situation obtained, immediate action would 

not be required under the standard, as it requires ribs to be supported or otherwise controlled to 

protect persons from hazards related to rib falls. The decision to designate a miner on each shift 

to deal with rib issues in the cited area, a decision which came about because of an earlier order 

addressing rib control, shows that the mine did not simply sit on its hands so to speak and ignore 

rib control. This is not to say that there were no violations. There were and the Court has found 

that that the violation was established, and that it was significant and substantial, though no 

longer warranting the designation of a 104(d) order, as it lacked unwarrantability. 

The Broad Repeated Claim 

So too, the broad approach, viewing past violative conduct, in order to establish a flagrant 

violation comes up short, because the Court in this instance and in an earlier instance entailing a 

decision involving the same mud seam area, determined that there was no unwarrantable failure 

41 FMSHRC Page 304
involved. Given the near identity of the conditions in the prior decision and in this instance, it 

would be anomalous to conclude that the earlier instance, which was not an unwarrantable 

failure, grew into an unwarrantable failure here, especially where the mine operator took action 

after the earlier instance by assigning a designated miner on each shift to address rib control. 

Beyond the analysis set forth above, the Court observes that reaching the question of 

whether a violation is flagrant contemplates a progression – one does not advance to a 

determination of whether an alleged violation is flagrant unless it is first determined that there 

was a violation, that it was significant and substantial and that it was an unwarrantable failure. 

Finding that there was no unwarrantable failure precludes a finding that a violation is flagrant. In 

other words, with no unwarrantable failure established, one cannot reach the issue of a flagrant 

violation, as such conduct is a step beyond that. 

The Commission has previously stated that a Commission Judge is required to convert a 

104(d)(1) order to a 104(a) citation where the order “lacked the required bases to stand as either 

a section 104(d)(1) order or 104(d)(1) citation.” Lodestar Energy, Inc., 25 FMSHRC 343 (July 

2003); Cyprus Cumberland Res. Corp., 21 FMSHRC 722, 725 (July 1999). As the Court 

determined, for the reasons described above, that Order No. 9036922 lacked the unwarrantable 

failure necessary to sustain a citation or order under section 104(d), it is concluded that Order 

No. 9036922 must be modified to a 104(a) citation. 

Penalty Determination 

Overview of Penalty Assessments 

As this Court noted in its decision in Peabody Midwest Mining LLC, 2018 WL 

816286 (Feb. 2018) (ALJ): 

In assessing civil monetary penalties, Section 110(i) of the Act requires that the 

Commission 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). 

As the Commission has noted, “Administrative Law Judges are accorded broad 

discretion in assessing civil penalties under the Mine Act. Westmoreland Coal 

Co., 8 FMSHRC 491, 492 (Apr. 1986). A Judge’s penalty assessment is reviewed 

under an abuse of discretion standard. Douglas R. Rushford Trucking, 22 

FMSHRC 598, 601 (May 2000).” Knight Hawk Coal, LLC, 38 FMSHRC 2361, 

2373 (Sept. 2016). 

That said, the Court recognizes that there are two important considerations that 

must be evaluated; the Secretary’s burden to provide sufficient evidence to 

support the proposed assessment; and the Court’s obligation to explain the basis 

for any substantial divergence from the proposed amount. The Commission has 

41 FMSHRC Page 305
noted that the “Secretary [ ] does bear the ‘burden’ before the Commission of 

providing evidence sufficient in the Judge’s discretionary opinion to support the 

proposed assessment under the penalty criteria [and that] [w]hen a violation is 

specially assessed that obligation may be considerable. [On the other hand] the 

Secretary’s proposed penalty cannot be glided over, as the Commission also 

stated, ‘Judges must explain any substantial divergence between the penalty 

proposed by MSHA and the penalty assessed by the Judge. ... If a sufficient 

explanation for the divergence is not provided, the credibility of the 

administrative scheme providing for the increase or lowering of penalties after 

contest may be jeopardized by an appearance of arbitrariness. [The American 

Coal Co., 38 FMSHRC 1987, 1993-1994 (Aug. 2016)], (citing Sellersburg Stone 

Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984)).” 

Consolidation Coal Co. 38 FMSHRC 2624, 2643-2644 (Oct. 2016) (ALJ Moran). 

Id. at *51-52. 

Further, the Commission has recognized that in assessing a civil penalty, a Judge 

is not required to assign equal weight to each of the penalty assessment criteria. Rather, 

“[j]udges have discretion to assign different weight to the various factors, according to 

the circumstances of the case.” Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001). 

... Indeed, the Commission has held that Judges have not abused their discretion by more 

heavily weighing gravity and negligence than the other penalty criteria. Knight Hawk 

Coal, LLC, 38 FMSHRC 2361, 2374 (Sept. 2016); Signal Peak Energy, LLC, 37 

FMSHRC 470, 485 (Mar. 2015). 

Penalty Assessment for the Former 104(d)(2) Order, Now Modified to a 104(a) 

Citation, No. 9036925 

As noted, the Secretary has alleged that Order No. 9036925, a section 104(d)(2) order, 

was an unwarrantable failure and a significant and substantial violation of 30 C.F.R. § 72.202(a), 

and that it was also a repeat flagrant violation pursuant to the MINER Act, under 30 U.S.C. § 

820(b)(2), for which, on those grounds, he sought the assessment of a civil penalty in the amount 

of $165,700.00. 

Based upon the record evidence and discussion thereof, the violation and its significant 

and substantial nature have been upheld, but the unwarrantable failure and flagrant designations 

no longer stand. The same mud seam, as described in the Court’s February 2018 decision, 

remained a bedeviling situation, but Peabody did not simply continue with business as usual 

following that earlier litigation, as it assigned an individual each shift solely to deal with the ribs 

impacted by the mud seam. 

Could the mine have done better? The answer to that question is definitely “yes,” as 

reflected by the fact that some, but not all, of the amount of material that was scaled following 

the issuance of the order. Given the mud seam, the credible testimony was that if one were to 

work at rib issues long enough some material would come down. The unrebutted testimony is 

that some of the ribs identified by the inspector as needing scaling then and there, in fact did not 

41 FMSHRC Page 306
need attention at that time, as reflected by this Court’s finding that, in some instances the 

material would not come down and in some instances only small amounts came down from such 

efforts.18 Thus, the Court has found that there could be honest differences of opinion as to 

whether a particular rib was in need of, that is to say, ripe for, immediate attention or whether it 

was premature to act.19 

The Court considers it significant that, in the face of testimony from multiple witnesses 

for the Respondent testifying about disagreements as to whether a given rib location was ripe for 

scaling and the lack of success, in some instances, to achieve results from scaling attempts, the 

Secretary did not recall any witness, and particularly did not recall Inspector Fishback, to 

challenge the Respondent’s claims. 

Had Order No. 9036925 been regularly assessed, the proposed penalty would have been 

$44,645.00. Respondent’s post-hearing brief at page 58 n.60. The Secretary has agreed this 

figure is correct. However that calculation assumed that the violation was an unwarrantable 

failure, and involved high negligence, neither finding to which the Court subscribes. See Order 

No. 9036925 and associated “Narrative Findings for a Special Assessment.” (“Narrative”). 

As the Court has determined that the principal bases for specially assessing this violation 

– specifically, the flagrant designation and the unwarrantable failure designation – are

inappropriate in the Court’s appraisal of the facts and application of the law, it concludes that in

this case the proper baseline for the Sellersburg substantial deviation requirement, as described

above, is the violation as it would have been calculated under the regular assessment formula

which would have been $44,645.00.

The Penalty Criteria as Applied to this Matter. 

The operator’s history of previous violations, and the appropriateness of such penalty to 

the size of the business of the operator charged were set forth in the Narrative and they are not in 

dispute. The mine is large, measured by both its size and the controlling entity’s size. 

The history of violations per inspection day and repeat violations were on the high end. 

The effect on the operator’s ability to continue in business is not in dispute and, even had the 

Court adopted the proposed penalty for the alleged flagrant violation, would not impact that 

criterion in this instance.20 The mine operator clearly demonstrated good faith in attempting to 

achieve rapid compliance after notification of a violation. 

18 On the issue of the extent of material produced through scaling, recall that Counsel for 

the Secretary stipulated that photos 1 through 22, 35, 36, and 53 through 55 in Exhibit P-5 do not 

show material on the ground. Tr. 143. 

19 The Court hopes that the message from this decision to Peabody, and perhaps 

more importantly to its miners, is not that ribs may be viewed with casualness and that the 

efforts being made sufficed. Such an attitude would be misguided, and only invite serious 

injury or worse. 

20 The parties stipulated that payment by Respondent of the proposed penalty of 

$165,700.00 would not affect Respondent’s ability to remain in business. Tr. 10. 

41 FMSHRC Page 307
That leaves gravity and negligence for discussion. As for gravity, based on the credible 

evidence of record, the Court finds that it was reasonably likely for an injury to have occurred. 

The injury, should one have occurred, fell between lost workdays or restricted duty and 

permanently disabling. For those reasons, the Court concludes the Secretary correctly determined 

that the violation was significant and substantial, and upholds the Secretary’s designation. 

As for negligence, as explained above, the Court finds that it was moderate, but did not 

constitute an unwarrantable failure. A corresponding downward departure from the regularly 

assessed penalty of $44,645.00 is therefore warranted. 

For those reasons, upon application of the statutory penalty criteria, and consistent with 

the credible evidence of record, the Court imposes a penalty of $40,000.00 for this violation, 

Order No. 9036925, an amount which the Court considers to be both an appropriate, and 

significant, penalty under the circumstances. Order No. 9036925 is also modified to a section 

104(a) citation. 

Summary

It is ORDERED that, as it is not an unwarrantable failure, Order No. 9036925 is MODIFIED

to a Section 104(a) citation. 

It is further ORDERED that, within 30 days of this order, Respondent pay a penalty of

$40,000.00 for this violation. 

Upon receipt of the sum of $40,000.00, this case is DISMISSED. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Edward V. Hartman, Esq., U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn 

St., 8th Floor, Chicago, IL 60604 

Arthur Wolfson, Esq., Fisher & Phillips LLP, One Oxford Center, 301 Grant St., Suite 4300 

Pittsburgh, PA 15219 

41 FMSHRC Page 308
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9949 

May 24, 2019 

ORDER ACCEPTING APPEARANCE 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge McCarthy 

This case is before the undersigned upon a Petition for the Assessment of Civil Penalty 

under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). 

The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a 

notice of limited appearance with the penalty petition. It is ORDERED that the CLR be accepted 

to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 1994). 

The CLR has filed a motion to approve settlement proposing a reduction in the penalty 

from $2,361.00 to $286.00. The CLR also requests that Citation No. 8956042–the sole citation in 

this matter–be modified to change the type of action from a section 104(d)(1) citation to a section 

104(a) citation, and to reduce the level of negligence from high to moderate. 

The citation alleges that the operate violated 30 CFR § 56.9300a by failing to provide a 

berm at a dump site. The Respondent, as part of the motion, alleges that there was always a 

spotter at the dump site and, in direct contradiction to the citation, that there were berms. 

On February 13, 2019, the undersigned’s law clerk requested further information in light 

of the apparent contradiction between the motion and the citation. The law clerk also inquired as 

to whether the inspector took any photographs of the missing berm. Although first indicating on 

February 13, 2019 that he was going to file an amended motion, the CLR responded on 

February 21, 2019 that the Petitioner was going to rely on the motion as submitted. The CLR 

also indicated that the inspector had taken photographs, but that they would not be provided to 

the undersigned.

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

YAHARA MATERIALS, INC., 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2019-0025 

A.C. No. 47-02926-474835

Mine: Unit No. 7 

41 FMSHRC Page 309
Although Petitioner presents sufficient support for resolving the motion, Petitioner’s 

failure to produce the requested clarification and documentary evidence is troubling. When an 

ALJ requests further information concerning a motion, it is usually an indication that there is 

insufficient support to grant that motion or, at the very least, a proper resolution is not clear from 

the motion as submitted. Ignoring such requests risks the denial of the motion. See American 

Aggregates of Michigan, Inc., Unpublished Order (May 24, 2019) (denying motion for 

settlement based on lack of probative factual support). 

However, as the undersigned ultimately resolves this motion without receiving the 

requested information–and the issue of producing evidence in support of a motion for settlement 

is already pending before the Commission on assignments of error to Solar Sources, Inc., 

39 FMSHRC 2052 (Nov. 2017) (ALJ)–this is not the appropriate case to discuss this matter 

further. 

The undersigned has considered the representations and documentation submitted in this 

case, and the undersigned concludes that the proffered settlement is fair, reasonable, appropriate 

under the facts, and protects the public interest under The American Coal Co., 38 FMSHRC 

1972, 1976 (Aug. 2016), and is appropriate under the criteria set forth in section 110(i) of the 

Act. 

WHEREFORE, the motion for approval of settlement is GRANTED. 

It is ORDERED that Citation No. 8956042 be MODIFIED to change the type of action 

from a section 104(d)(1) citation to a section 104(a) citation, and to reduce the level of 

negligence from high to moderate. 

It is further ORDERED that the operator pay a penalty of $286.00 within thirty days of 

this order.1

 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

1

 Payment should be sent to: Mine Safety & Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

41 FMSHRC Page 310
Distribution: 

Daniel J. Goyen, U.S. Department of Labor, MSHA, 515 West First Street, Room 323, Duluth, 

MN 55802 

Erik Dullea, Husch Blackwell LLP, 1801 Wewatta Street, Suite 1000, Denver, CO 80202 

/ztb 

41 FMSHRC Page 311
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

June 11, 2019 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

CONSOL BUCHANAN MINING 

 COMPANY, LLC, 

 Respondent.

CIVIL PENALTY PROCEEDING 

Docket No. VA 2012-0042 

A.C. No. 44-04856-269664

Mine: Buchanan Mine #1 

DECISION AND ORDER 

Before: Judge Rae 

I. STATEMENT OF THE CASE

This matter arises from a petition for assessment of civil penalty filed by the Secretary of 

Labor (“the Secretary”) pursuant to the Federal Mine Safety and Health Act of 1977, as 

amended, (“the Mine Act”) 30 U.S.C. § 815(d). A hearing was held in Kingsport, Tennessee on 

November 18, 2014, after which the parties submitted post-hearing briefs (“Post-Hr’g Br.”). I 

rendered a Decision and Order after hearing, assessing the propriety of three citations and their 

respective S&S designations, contained in Docket Numbers VA 2012-0042 and VA 2013-0192. 

Sec’y of Labor v. Consolidation Coal Co., 37 FMSHRC 2396 (Oct. 2015)(ALJ) (“Consolidation 

Coal”). In relevant part, I held that Citation No. 8189820, contained in Docket Number VA 

2012-0042, was properly issued for a violation of Respondent’s roof control plan, but was not 

properly designated as S&S. 

The Secretary appealed my removal of Citation Number 8189820’s S&S designation to 

the Commission which affirmed the removal of the S&S designation in a split decision. Sec’y of 

Labor v. Consolidation Coal Co., 39 FMSHRC 1737 (Sept. 2017) (“Comm’n Decision”). The 

Secretary then appealed the Commission’s affirmation to the D.C. Circuit, which vacated the 

removal of the S&S designation and remanded this matter for further consideration consistent 

with its instructions. Sec’y of Labor v. Consolidation Coal Co., 859 F.3d 113, 119 (2018) (“D.C. 

Cir. Decision”). Specifically, the D.C. Circuit instructed that I consider whether Citation Number 

8189820 is properly designated as S&S without considering redundant safety measures or miner 

precaution. Id. 

41 FMSHRC Page 312
II. BACKGROUND AND FACTS OF THE VIOLATION 

On remand, the factual record established and credited in my original opinion remains 

undisturbed. Citation Number 8189820 was issued by Mine Safety and Health Administration 

(“MSHA”) Inspector William G Ratliff1

 on July 14, 2011 at the Buchanan Mine #1, a large 

underground coal mine located in Buchanan County, Virginia. The parties have stipulated to the 

following relevant facts: 

1. During all times relevant to this matter, Consolidation Coal Company (“Respondent”) 

was the operator, as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d), of the 

Buchanan No. 1 mine, Mine ID No. 44-04856. 

2. The Buchanan No. 1 mine is a “mine” as that term is defined in Section 3(h) of the Mine 

Act, 30 U.S.C. § 802(h). 

3. At all material times involved in this case, the products of the Buchanan No. 1 mine 

entered commerce or the operations or products thereof affected commerce within the 

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

4. Respondent is large in size, having produced 5,654,353 tons of coal at its Buchanan No. 1 

mine in 2011 and 3,506,216 tons in 2012. 

5. The proceeding is subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission and its designated Administrative Law Judges pursuant to Sections 

105 and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823. 

6. MSHA Inspector William G. Ratliff, whose signature appears in Block 22 of Citation 

Numbers 8189820, was acting in his official capacity as an authorized representative of 

the Secretary of Labor when they issued the citations. 

7. The citation at issue in this proceeding was properly served by a duly authorized 

representative of the Secretary of Labor, MSHA, upon an agent of Respondent. 

8. The proposed penalty for Citation Number 8189820 will not affect Respondent’s ability 

to continue in business. 

Jt. Ex. 1; Tr. 6.2

 

1

 Inspector Ratliff has worked for MSHA as a coal mine inspector since February 2008. 

He worked in the mining industry as an equipment operator, shop foreman, and fireboss for 

roughly 24 years before being hired by MSHA in 2007 and subsequently completed 

approximately one year of field training and coursework at the Mine Academy to become 

certified as an inspector. He cumulatively had about 28 years of experience in the mine industry 

at the time he issued Citation Number 8189820. Tr. 225–26. 

2

 In this decision, the abbreviation “Tr.” refers to the transcript of the hearing. The 

Secretary’s exhibits are numbered S-1 to S-11 and Respondent’s exhibits are numbered R-3 and 

R-4. 

41 FMSHRC Page 313
Citation Number 8189820 alleges that Inspector Ratliff observed a cut that exceeded the 

maximum cut length allowed by the mine’s roof control plan in violation of § 75.220(a)(1).3

 Ex. 

S-6. Specifically, Part 1, Section K, Subsection K.7 of the mine’s approved roof control plan

limits cut depth to 20 feet in areas of the mine evidencing adverse roof conditions. Ex. S-8 at 4.

The extended cut was taken in a crosscut in from the No. 3 to the No. 2 entry. Id. As the

continuous miner began to breach the rib of the No. 2 entry, creating an eight-foot hole, the

remainder of the roof collapsed onto the continuous miner. Tr. 267–68.

Inspector Ratliff issued Citation Number 8189820 at approximately 5:00 AM after 

traveling to the mine to investigate an unrelated complaint on the morning of July 14, 2011. 

While traveling the 17 Right development panel accompanied by Company Safety Inspector 

Robert Baugh, Inspector Ratliff encountered adverse roof conditions and a cut that he suspected 

exceeded 20 feet in length. Tr. 286, 229. By the time Inspector Ratliff’s arrived at the extended 

cut, miners were in the process of bolting the unsupported roof using six-foot resin bolts, a 

longer bolt than is normally used in this mine. Tr. 241, 259–60. The miners were bolting in a 

tighter pattern that required by the mine’s roof control plan, installing additional rows of bolts 

between the regularly spaced bolt-rows. Tr. 312–13. Inspector Ratliff waited until the miners 

finished bolting the entire cut through to the No. 2 entry before measuring the length of the cut 

the next day. Tr. 229–30, 244. 

In my initial decision, I found that the cut was between 22 and 23.5 feet in length, as 

measured from the last row of roof bolts installed prior to the cut, and constituted a violation of 

§ 75.220(a)(1). Consolidation Coal, 37 FMSHRC 2396, 2409. This holding was not challenged

on appeal. See Comm’n Decision, 39 FMSHRC 1737; D.C. Cir. Decision, 859 F.3d 113.

III. LEGAL PRINCIPLES

A violation is S&S if the violation is “of such nature as could significantly and 

substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. 

§ 814(d). A S&S designation is appropriate “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.” Sec’y of Labor v. Cement Div., Nat'l Gypsum

Co., 3 FMSHRC 822, 825 (Apr. 1981) (“Nat'l Gypsum Co.”).

In Mathies Coal Company, the Commission set forth the following four-part test to 

determine whether a violation is properly designated as S&S: 

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory 

3

 The cited standard, § 75.220(a)(1), operates as a mandatory safety standard and 

provides in pertinent part: “Each mine operator shall develop and follow a roof control plan, 

approved by the District Manager, that is suitable to the prevailing geological conditions, and the 

mining system to be used at the mine.” 30 C.F.R. § 75.220(a)(1); Sec’y of Labor v. Martin 

County Coal Corp., 28 FMSHRC 247, 252 (May 2006). 

41 FMSHRC Page 314
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. 

6 FMSHRC 1, 3-4 (Jan. 1984) (“Mathies”); accord Buck Creek Coal, Inc. v. FMSHA, 52 F.3d 

133, 135 (7th Cir. 1995) (“Buck Creek”); Austin Power, Inc. v. Sec'y of Labor, 861 F.2d 99, 103 

(5th Cir. 1988); Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071, 1075 (D.C. Cir. 1987). It is 

“well established that the burden of establishing S&S rests on the Secretary[.]” Sec’y of Labor v. 

Topper Coal Co., 20 FMSHRC 344, 378 (Apr. 1998) (citing Mathies, 6 FMSHRC at 3-4). 

The Commission later clarified the relationship between the second and third steps of the 

Mathies’ analysis.4 Sec’y of Labor v. Newtown Energy, Inc., 38 FMSHRC 2033, 2037-38 (Aug. 

2016) (“Newtown”). After the judge identifies the hazard at issue, step two requires a judge 

assess “whether the violation sufficiently contributed to that hazard.” Id. at 2038. Specifically, 

the Commission clarified that “the second step requires a determination of whether, based upon 

the particular facts surrounding the violation, there exists a reasonable likelihood of the 

occurrence of the hazard against which the mandatory safety standard is directed.” Id. If the 

violation sufficiently contributes to the occurrence of the hazard under step two, “the Judge then 

assumes such occurrence” for the analysis of step three. Id. Step three is satisfied if, based upon 

the particular facts surrounding the violation, the occurrence of that hazard “would be reasonably 

likely to result in an injury.” Id. 

Analysis of the likelihood of injury step is conducted assuming “continued normal 

mining operations.” Sec’y of Labor v. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 

1984). Specifically, in assessing whether a hazard poses a reasonable likelihood of injury, judges 

consider “the length of time that the violative condition existed prior to the citation and the time 

it would have existed if normal mining operations had continued.” Sec’y of Labor v. Black 

Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012); Secy of Labor v. Rushton Mining Co., 

11 FMSHRC 1432, 1435 (Aug. 1989). Additionally, analysis of the likelihood of injury should 

not rely on the expectation that miners will protect themselves. Newtown, 38 FMSHC at 2044; 

see also Sec’y of Labor v. Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992) (“We reject the 

judge’s conclusion that the ‘exercise of caution’ may mitigate the hazard.”). Similarly, analysis 

of the likelihood of injury under step three cannot consider the mitigating effects of redundant 

safety measures. Secretary of Labor v. Black Beauty Coal Co., 38 FMSHRC 1307, 1313-14 

(June 2016); Sec’y of Labor v. Cumberaland Coal Res., 717 F.3d 1020, 1029 (D.C. Cir. 2013) 

(“Cumberland Coal Res.”); Buck Creek, 62 F.3d at 136. Lastly, the Commission has recognized 

that an MSHA inspector's judgment is “an important element of an S&S determination.” Wolf 

Run, 36 FMSHRC 1951, 1959; Mathies, 6 FMSHRC at 5. 

4

 The S&S determination must be based on the particular facts surrounding the violation 

at issue. Sec’y of Labor v. Peabody Coal Co., 17 FMSHRC 508, 511-12 (Apr. 1995); see, e.g., 

Sec’y of Labor v. Wolf Run Mining Co., 36 FMSHRC 1951, 1957–59 (Aug. 2014) (“Wolf Run”). 

41 FMSHRC Page 315
IV. ADDITIONAL FINDINGS OF FACT

In my initial Decision, I held that the first and second steps of the Mathies test were 

satisfied, which was not challenged on appeal. Consolidation Coal, 37 FMSHRC 2396, 2409. 

With respect to the third step of Mathies, I held that the Secretary had not satisfied his burden of 

establishing that a roof fall caused by the extended cut was reasonably likely to injure a miner. 

Id. at 2410. I relied on: (1) the length of time the violative condition would exist in the context of 

continued mining operations; (2) the use of longer roof bolts and a tighter bolting pattern; (3) the 

use of an automated temporary roof support system (“ATRS”); and (4) the fact that miners 

would not go into the unbolted “red zone.” Id. at 2409–2410. The D.C. Circuit remanded the 

issue of whether a roof fall would be reasonably likely to injure a miner with instructions that I 

not consider the ATRS or miner precaution in my analysis.5 D.C. Cir. Decision, 895 F.3d 113, 

119–20. 

The issue of whether a roof fall caused by the extended cut was reasonably likely to 

injure a miner cannot be discussed until the relevant facts have been culled from the record. 

Specifically, the Secretary initially argued in his Post-Hearing Brief that a “roof fall would carry 

back through the adverse conditions to the previous cut where [examiners, car operators, and 

roof bolters] were working.” Sec’y’s Post-Hr’g Br. at 26. However, the Secretary conceded that 

5

 The D.C. Circuit directed that settled Commission case law prohibits consideration of 

redundant safety measures in Mathies step three. Accordingly, I do not consider redundant safety 

measures in this decision. However, the D.C. Circuit specifically noted that it did not address 

whether redundant safety measures could be considered in Mathies step two. D.C. Cir. Decision, 

859 F.3d 113, 120. I share similar reservations on the blanket refusal to consider compliance 

with relevant safety measures in any point in an S&S analysis. The policy concern associated 

with crediting the mitigating effects of redundant safety measures in a S&S analysis recognizes 

that “[i]f mine operators could avoid S&S liability . . . by complying with redundant safety 

standards, operators could pick and choose the standards with which they wished to comply.” 

Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148. However, this analysis cuts both ways. 

Disregarding the effect of redundant safety measures once a hazard has manifested may promote 

general compliance with safety standards. However, disregarding compliance with safety 

measures aimed at preventing hazards from manifesting in the first place would, in effect, punish 

operators for general compliance with such standards by subjecting them to S&S liability. 

Crediting standards which reduce the likelihood of hazards in occurring in Mathies step two 

would comport with the Mine Act’s objective of removing hazards from mining environments 

while not providing complete defense to S&S liability by allowing operators to assume away any 

resultant harm in Mathies step three. It is also questionable as to which safety measures should 

be considered secondary or redundant. The use of ATRS is not similar to a fire extinguisher or a 

fire retardant belt. As Commissioners Young and Althen point out in their opinion, the 

“Automated Temporary Roof Support was not in any sense of the word a ‘redundant’ safety 

feature. Such support was a required and accepted aspect of the roof plan. Failure to use it would 

have been a violation; certainly, actual use of the prescribed roof control device bears upon the 

reasonably likely result of a roof fall.” Consolidation Coal Co., 39 FMSHRC 1737, 1751-52 

(Sept. 2017). To hold otherwise would lead to absurd results. The Court of Appeals is simply 

incorrect in its application of this principle as it applies to the instant case. 

41 FMSHRC Page 316
while “a roof fall did occur after the majority of the cut was competed” it did not carry back and 

“break through the bolts in this instance [but] it could have.” Id. Accordingly, at the time of my 

initial decision, it was undisputed that a roof fall did not break through into the bolted area where 

iners were working. Therefore, there was no need to make a finding on whether a roof fall broke 

into the bolted area at the time I rendered my initial decision. 

The Secretary maintains his theory, in his Brief on Remand (“Remand Br.”), that a “roof 

fall that broke through the bolts” would injure a miner. Sec’y’s Remand Br. at 7. However, the 

Secretary now argues, for the first time before me, “part of the roof actually fell and broke back 

through the bolts after the deep cut was made.”6 Id. I am not aware how the factual record could 

have possibly changed between the time I rendered my initial decision to when this matter was 

remanded to me from the D.C. Circuit. Nonetheless, it is now necessary to address the 

Secretary’s newfound interpretation of the record. 

The Secretary cites three points of testimony to support the assertion that a roof fall broke 

back through into and damaged the last row of bolts in the previously roof bolted area. First, the 

Secretary selectively cites to the testimony of Inspector Ratliff. Id. at n. 46. Inspector Ratliff did 

testify that the “cut actually fell out rock.” Tr. 252. However, the Secretary attempts to conflate 

the roof fall that occurred at the opposite end of the extended 22 to 23.5 foot cut with a roof fall 

in the bolted area. This is a strained interpretation of Inspector Ratliff’s testimony as Ratliff 

referenced the roof fall and said, “[y]ou’ve got quite a bit of rock. . .if this breaks around your 

roof bolts,” thereby acknowledging that a the referenced “fell out rock” did not actually break 

around the roof bolts. Tr. 252. 

Furthermore, Inspector Ratliff testified specifically that “[t]he roof had not 

fallen in the area where these bolts were at.” Tr. 234. With respect to the row of 

damaged roof bolts and location of the rock fall, Inspector Ratliff said: 

The bolts were cut, folded over, damaged, the plates were missing, 

indicates that the miner cut the bolts out instead of the rock fall, 

which there was no rock that had fallen right there at this location. 

It was further into the cut. It indicated that the miner cut them out. 

Tr. 234. In sum, Inspector Ratliff’s testimony is consistent with the Secretary’s previous position 

that a rock fall did not occur in the bolted area. 

Next, the Secretary cites to the testimony of Terry Hamilton, the Section Foreman of the 

17 Right development panel at the time the extended cut was taken. Sec’y’s Remand Br. at 7, 

n. 46. When asked if there he noticed a problem with the last row of roof bolts after the rock fall,

Hamilton responded, “it had fell and I guess, dislodged a couple of bolts[.]” Tr. 269 (emphasis

added). However, in his very next statement Hamilton stated, “I can’t remember exactly if it

6

 The Secretary first made this argument that a roof fall broke back into the roof-bolted 

area on appeal to the Commission, which Commissioners Althen and Young refused to address 

because the Secretary did not raise advance this argument at the trial level. Comm’n Decision, 37 

FMSHRC 1737, 174–48. 

41 FMSHRC Page 317
would have been the miner done it or rock fell around it or what.” Id. Hamilton’s testimony 

indicates that the last row of bolts in the bolted area included damaged bolts.7

 However, it is 

ambiguous as to whether they were damaged by a rock fall or by mining operations. 

Lastly, the Secretary cites to the testimony of Safety Inspector Baugh. Sec’y’s Remand 

Br. at 7, n. 46. When asked if the roof fall damaged the last row of bolts he replied “right.” Tr. 

293. However, on the previous page of testimony Bough testified that “one of [the bolts] was

damaged by the miner” and that based on his memory, “three of [the bolts] were damaged when

the place fell.” While this testimony attributes some of the damaged bolts to a roof fall, it does

not indicate that the roof fell within the bolted area nor is it as detailed as Inspector Ratliff’s

description of state of the damaged bolts and his explanation of how they became damaged.

Additionally, and as the Secretary acknowledges, Inspector Ratliff’s testimony should be

afforded great weight due to his training and experience. See Sec’y’s Remand Br. at 8. Due to the

detailed and unequivocal nature of Inspector Ratliff’s testimony as well as his training and

experience, I credit Inspector Ratliff’s testimony that a roof fall did not occur in or break back

into the bolted area.

V. ANALYSIS

The issue before me on remand is whether the Secretary has established by a 

preponderance of the evidence, considering the facts and circumstances surrounding the violation 

in the context of continued mining operations, that a roof fall was reasonably likely to break back 

into the bolted area and injure a miner.8 If so, then the inquiry turns to whether the resulting 

injury would be of a reasonably serious nature pursuant to Mathies step four. However, 

consideration of the fourth step of Mathies is unnecessary, as the Secretary has failed to meet his 

burden in demonstrating that a roof fall was reasonably likely to break back into the bolted area 

and injure a miner. 

First, as noted in my initial decision, the Mine was using resin bolts installed in a tighter 

bolting pattern than was required by the roof plan. Tr. 260, 312–13. In addition, the bolts used in 

the extended cut were six feet in length - longer than those normally utilized in Buchanan Mine 

7

 Although the last row of roof bolts included damaged bolts, the damage to the bolts did 

not affect their structural integrity of their effectiveness in supporting the roof strata. Tr. 261. 

8

 The Secretary does not argue that injury would result from the roof falling on miners 

working under unsupported roof outside of the roof-bolted area, nor would that be appropriate 

under settled Commission case law. See Sec’y of Labor v. FMSHRC, 111 F.3d 913, 917-18 (D.C. 

Cir. 1997) (Holding that the Secretary is not to consider “nonviolative surrounding conditions” in 

analyzing whether a violation significantly and substantially” contributes to a hazard.); see also

Cumberland Coal Res., 717 F.3d 1020, 1028 (Stating that “decision makers should not consider 

facts unrelated to the violation when undertaking a significant and substantial evaluation.”). 

Accordingly, and consistent with the D.C. Circuit’s remand instruction, miner precaution and 

Respondent’s use of an ATRS is irrelevant to analysis of the Secretary’s argument before me—

that a roof fall would break back into the roof-bolted area and injure a miner—and therefore is 

not discussed herein. 

41 FMSHRC Page 318
#1. Tr. 260. Employing a tighter bolting pattern and switching to longer bolts in the extended cut 

reduced the likelihood that a roof fall in the unbolted area would destabilize the roof of 

previously bolted cut or the newly bolted roof established as the bolting crew advanced. 

Second, as also noted in my initial decision, the violative condition was in the process of 

being corrected when Inspector Ratliff observed the extended cut. Tr. 253. The cut was fully 

bolted by the time Inspector Ratliff returned the next day to measure the extended cut. Tr. 244, 

280. Accordingly, the relatively short period of time that the roof was left unbolted lessens the 

chance that additional roof falls would occur in the remaining unbolted area, let alone break back 

into the bolted area. 

Third, it is significant that Inspector Ratliff allowed the miners to continue roof bolting 

the extended cut to completion when he observed the condition. As recognized by the 

Commission, an inspector’s judgement is “an important element of an S&S determination.” Wolf 

Run, 36 FMSHRC 1951, 1959. Inspector Ratliff was aware of the adverse roof conditions and 

believed the cut was of impermissible length at the time he allowed roof bolting to continue. Tr. 

252. The Secretary’s theory that a roof fall was reasonably likely to break back through the 

bolted area and injure a miner is inconsistent with Inspector Ratliff’s decision to allow roof 

bolting to continue through the entirety of the extended cut. Otherwise, Inspector Ratliff’s 

decision to let bolting continue would be tantamount to allowing continued exposure of the 

bolting miners to a reasonable likelihood of reasonably serious harm.9

 

 Fourth, roof falls occur in the regular course of mining operations as recognized by the 

Buchanan Mine #1’s approved ventilation plan. See Ex. S-3, pt. 1at 1. In the context of a cross 

cut as is at issue here, the greatest amount of stress rests on the intersection of the cuts over 20 

feet away from the bolted area - where the extended cut intersected with the No. 2 entry. Tr. 251; 

Ex. R-3 at 5. It follows that, if a roof fall is to be assumed in assessing the likelihood of injury, 

this is the area that a roof fall is most likely to, and did, occur. However, the record contains no 

evidence that the roof fall that occurred in the final feet of the extended cut was caused by the 

extended cut.10 

Fifth, the Secretary fails to provide any explanation as to why it is reasonably likely a 

roof fall at the intersection with the No. 2 entry would travel back into the roof-bolted area 

besides first alleging it “could happen” and now alleging it did happen. The Secretary does not 

point to any testimony on the record, expert or otherwise, explaining how characteristics of the 

cut structure and roof composition would make a roof fall likely outside of the final feet of the 

extended cut reasonably likely. The occurrence of a roof fall at the intersection with the No. 2 

9 If the Secretary’s argument was to be accepted, any time a cut of two to three-and-a-half 

additional feet is taken, mining in that area would need to cease lest miners be exposed to a 

reasonably serious likelihood of harm. 

10 Foreman Hamilton testified that when a cut is taken close to an intersection, the last 

three feet of coal can fall in because of its soft composition. Tr. 281-83. Accordingly, the roof 

fall that occurred at the end of the cut may have been a result of the low structural integrity of the 

thin reaming seam of soft coal between the extended cut and the No. 2 entry – not a result of the 

cut’s length. 

41 FMSHRC Page 319
entry does not constitute evidence that additional roof falls are likely to occur in other areas 

along the crosscut, bolted or unbolted. The Secretary does cite to testimony espousing that roof 

falls can break into roof-bolted areas, arguing that “a mine’s history of roof falls is relevant to 

whether an injury from a roof fall is reasonably likely.” Sec’y’s Remand Br. at 7, n. 48, 49. 

However, the cited testimony is not cabined to the facts of this case and therefore is not probative 

of whether this deep cut, or any deep cut, is likely to result in a roof fall which breaks back into a 

roof-bolted area.11 

VI. CONCLUSION

The Secretary’s allegations that a roof fall breaking back into a roof-bolted area “could 

happen” in general does not satisfy the Secretary’s burden of demonstrating it is reasonably 

likely to occur and injure a miner under the specific facts of this case. Having found that a roof 

fall did not occur in the roof-bolted area, the Secretary’s allegation of a possible roof fall in a 

roof-bolted area is all that remains. Logically, all violations of mandatory safety standards could 

result in injury to miners, hence the reason for their implementation and enforcement. However, 

to accept the Secretary’s argument that a violation is properly designated as S&S because it 

could result in injury to a miner would effectively allow all non-technical violations to be 

designated as S&S. This would be inconsistent with the graduated enforcement scheme of the 

Mine Act and is the very reason that the Secretary must prove, in relevant part, that harm is 

reasonably likely to result from a violation before it can be designated as S&S.12 Nat'l Gypsum 

Co., 3 FMSHRC 822, 825. Here, the Secretary has failed to meet his burden in showing that 

Respondent’s taking an extended cut of an additional two to three-and-a-half feet was reasonably 

likely to result in harm to a miner. Accordingly, and for the reasons set forth above, I find that 

Citation Number 8189820 was not properly designated as S&S and therefore remove the S&S 

designation. 

11 The cited testimony of Hamilton and Bough does not speak to a “history of roof falls” 

that are relevant to the facts before me as the Buchanan Mine #1 has no history of taking 

extended cuts. Tr. 244-245. Accordingly, the testimony the Secretary relies on to establish a 

history of roof falls cannot possibly relate to roof falls caused by extended cuts, much less 

evidence that a roof fall potentially caused by an extended cut will travel back twenty feet into a 

roof-bolted area. Tr. 244–45. 

12 In Nat'l Gypsum Co., the Commission rejected the Secretary’s argument that a 

violation is properly designated as S&S, regardless of the gravity of the resultant harm, as long 

as a violation posed “more than a remote or speculative chance that injury . . . will result[.]” Nat'l 

Gypsum Co., 3 FMSHRC 822, 825. Specifically, the Commission opined that such an 

interpretation of the S&S provision of the Mine Act would be inconsistent with the Act’s 

“overall enforcement scheme, which generally provides for the use of increasingly severe 

sanctions for increasingly serious violations or operator behavior. Id. at 828. Here, the 

Secretary’s theory that a roof fall could break back into a roof-bolted area and injure a miner is 

purely speculative. 

41 FMSHRC Page 320
ORDER 

It is hereby ORDERED that the S&S designation associated with Citation Number 

8189820 be removed. I incorporate my initial findings with respect to the appropriate civil 

penalty and FURTHER ORDER Respondent pay $1,500.00 within thirty (30) days of the date 

of this Decision and Order. 13

/s/ Priscilla M. Rae 

Priscilla Rae 

Administrative Law Judge 

Distribution: 

Eric Johnson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh Avenue 

North, Suite 420, Nashville, TN 

Emily Toler Scott, U.S. Department of Labor, Office of the Solicitor, 201 12th Street South, 

Suite 401, Arlington, VA 22202 

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton PLLC, 151 N. Eagle Creek Drive, Suite 

301, Lexington, KY 40509 

13See Consolidation Coal, 37 FMSHRC 2396, 2410-11. Payment should be sent to: U.S. 

Department of Labor, MSHA, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

Please include docket and A.C. numbers. 

41 FMSHRC Page 321
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

June 24, 2019 

DECISION AND ORDER

Before: Judge Miller 

This case is before me upon a petition for assessment of 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 docket involves four citations issued pursuant to 

Section 104(a) of the Act detailing alleged violations of mandatory health and safety standards 

with respect to Respondent’s coal mine ventilation plan. The parties appeared at a hearing on 

April 24, 2019 in Pittsburgh, Pennsylvania. The parties called no witnesses but submitted 

stipulations regarding the citations at issue. Based upon the parties’ stipulations, my review of 

the entire record, and consideration of the parties’ legal arguments, I make the following findings 

and order. 

I.BACKGROUND

The Hopedale Mine is an underground coal mine located in Harrison County, Ohio. The 

parties have stipulated that Hopedale Mining LLC is an “operator” as defined in Section 3(d) of 

the Mine Act, 30 U.S.C. § 803(d), and that the mine is subject to the provisions of the Mine Act 

and the jurisdiction of the Commission. Jt. Stips., Ex. J-2. ¶¶ 1-3. 

The Secretary filed a petition for assessment of civil penalty regarding the four citations 

in this docket and Respondent filed a timely answer. The originally assessed amount for the 

citations at issue totals $18,093.00. The Secretary submitted two motions for settlement on 

behalf of the parties. In those motions, the parties represented that they had agreed to a 

significant reduction in penalty of almost 81.5% based upon information purporting to support 

reductions to the gravity and negligence for each citation. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

v. 

HOPEDALE MINING LLC, 

 Respondent. 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2019-0149 

A.C. No. 33-00968-481020

Mine: Hopedale Mine 

41 FMSHRC Page 322
The Secretary filed his initial settlement motion on March 25, 2019. The docket contains 

four ventilation violations in which the CLR proposed to modify the negligence on all four, and 

to change the highly likely to reasonably likely for two citations, thereby reducing the total 

penalty from $18,093.00 to $3,339.00 based upon the Secretary’s schedule of penalties found at 

30 C.F.R. § 100.3. After the parties were notified that same day via email that the court would 

not approve the proposed settlement, the Secretary filed an amended settlement motion on April 

5, 2019. The amended motion included the same terms proposed in the initial motion along with 

some additional information concerning each citation. In their amended motion, the parties assert 

that they included a description of the “issue[s] on which the parties have agreed to disagree” and 

that the motion demonstrated “the proposed penalty reduction is fair, reasonable, appropriate 

under the facts, and protects the public interest,” as required by Am. Coal Co., 40 FMSHRC 983, 

991 (Aug. 2018) [hereinafter “Am. Coal II”]. The Secretary did make an effort to provide some 

relevant information in the second motion, which was filed by the Solicitor’s office, but the 

second motion was also deficient. That additional information is discussed in more detail below. 

On March 29, 2019, the court issued a Notice of Hearing directing the parties to appear 

for hearing on April 24, 2019 in Steubenville, Ohio. Due to a lack of courtroom availability, the 

court issued a Notice of Hearing Site on April 9, 2019 and changed the location of the April 24, 

2019 hearing to a courtroom at the Commission’s Pittsburgh office. Each party filed its 

prehearing submission on April 15, 2019; both submissions indicated that no witnesses would be 

called at hearing and that the only exhibit offered would be a copy of the parties’ joint 

stipulations. Following a conference call with the parties on April 16, 2019, the Secretary 

submitted a copy of the parties’ initial joint stipulations to the court. 

On April 17, 2019, the court issued an order denying the parties’ amended motion for 

settlement. The order also addressed the stipulations, which in fact, contained the identical 

information found in the amended motion to approve settlement. The joint stipulations were 

considered to be an attempt to have a settlement motion approved and are addressed here as 

another effort to further the original settlement. A little over 36 hours prior to hearing, the 

Secretary filed a 94-page submission to request that the court reconsider the parties’ settlement 

agreement, or alternatively, revoke the subpoena issued to the inspector, or alternatively, certify 

the order denying settlement for interlocutory appeal. The hearing was held as originally 

scheduled, and the parties introduced an updated copy of the joint stipulations as Exhibit J-2. On 

May 1, 2019, Respondent joined the Secretary’s arguments requesting reconsideration of the 

settlement agreements and certification of certain issues for interlocutory review. 

II.SETTLEMENT ISSUES 

Prior to hearing, the parties’ settlement proposals were rejected because they were not 

fair, reasonable, appropriate under the facts, or in furtherance of the public interest. The four 

citations at issue here involve violations of 30 C.F.R. § 75.370(a)(1), which requires operators to 

develop and follow a ventilation plan that is designed to control methane and respirable dust. 

Each citation was marked significant and substantial (“S&S”), and the parties’ four settlement 

proposals retained those designations. However, in both of the motions and in the two 

stipulations, the parties suggested reducing the negligence of three of the four citations from 

moderate to low, reducing the negligence of one of the four citations from high to moderate, and 

41 FMSHRC Page 323
reducing the likelihood of injury of two of the four citations from highly likely to reasonably 

likely. This decision incorporates the order denying the Secretary’s amended motion for 

settlement, which was issued on April 17, 2019 and addressed the motion for settlement and 

amended motion, as well as the parties’ first joint stipulations. In addition to those three 

submissions, I address the second joint stipulation here. 

The first motion for settlement was denied on March 25, 2019 in an email sent to the 

CLR and the mine operator. The email explained that the four ventilation citations were serious, 

as was the potential for exposure to dust, and that such a drastic reduction in the overall penalty 

was not supported. The first motion addressed each of the four violations in a limited manner. A 

proposal for Citation 8055975, which was issued for failure to maintain adequate air flow, 

included a modification to negligence from moderate to low and sought a reduction in penalty 

from $1,031.00 to $462.00. The parties justified the modification to low negligence by arguing 

that the “foreman stated” to the inspector that he had taken an air reading prior to the roof bolters 

entering the area and that reading was within the required parameters. The citation includes a 

statement that the mine was cited 10 times in the past two years for ventilation violations. In the 

amended motion that followed, the attorney for the Secretary added information explaining that 

the inspector’s air reading was 93% of what was required by the plan and that the difference in 

the ventilation was not easily detectable by the roof bolter. The Secretary also added that the 

supervisor took the air reading “just prior to the inspector’s arrival.” No other changes were 

suggested and the proposed reductions to negligence and the penalty remained the same. In the 

next settlement attempt, the joint stipulations, one other item was added: the parties agreed that 

the foreman said he measured over 3,000 cfm of air prior to roof bolting. Finally in the fourth 

attempt, the second joint stipulations, the parties agreed that as the continuous miner advances, it 

is farther from the ventilation source. I credit the Secretary for making an effort to supply 

additional information, but a significant amount of the information contained conclusions rather 

than facts, and it was not sufficient to support the drastic reductions that were proposed. It is 

clear that the parties did not consult the Commission’s case law on what constitutes the various 

levels of negligence. The Secretary may have more facts he relied upon, but if he does not, the 

parties should consider renegotiating the agreement. 

Citation 8055976 was issued 35 minutes later on the same MMU-005 for a failure to 

remove a tail curtain. The CLR suggested a change from high negligence to moderate and a 

reduction to likelihood of injury or illness from highly likely to reasonably likely, reducing the 

penalty from $12,321.00 to $1,666.00 based on Part 100. The proposed reduction was based 

upon information the mine operator presented that included sampling results for the shuttle car 

operators taken at or near the time of the violation and demonstrating no overexposure to dust. In 

addition, the justification for modification included a statement that management was not aware 

of the violation and that the exposure was for a short duration. The amended motion added that 

the “Secretary agrees that the section foreman was at the continuous miner” but was not aware 

the curtain had not been adjusted. The next submission, the first joint stipulations, stated that the 

section foreman was present at the continuous miner for the cut from E to F, but unaware of the 

violation. The parties agreed that the violation was for a short period of time. Finally, in the 

second stipulation, the parties added that the exposure lasted for 45 minutes, but still agreed that 

it was for a short period of time. They also agreed that there was no evidence of overexposure. 

For each violation in the second joint stipulation, the parties added that the violation as set forth 

41 FMSHRC Page 324
was a true and accurate description of the condition observed by the inspector with the 

exceptions set out. Given all of the information provided, the Secretary has failed to justify the 

changes to moderate negligence and a reasonable likelihood of injury, as well as the drastic 

penalty reduction. 

Citation 8055977, issued on MMU-005 just 45 minutes after Citation No. 8055976, cites 

the mine for having plugged water sprays on the continuous miner. The first motion suggested a 

reduction from moderate negligence to low and a reduction in likelihood of injury or illness from 

highly likely to reasonably likely. The proposed penalty was reduced from $3,710.00 to $749.00. 

The CLR justified the changes by stating that the personal samples taken by the shuttle car 

operators showed the dust levels in compliance and management was not aware that the sprays 

were plugged. The second motion added more to the parties’ justifications and included a 

statement that the location of the plugged sprays made it difficult for the operator of the 

continuous miner to see the non-functioning sprays. The motion also included a statement that 

the respirable dust parameters were in compliance at the start of the shift and the sprays had been 

checked after the third cut. The motion added finally that there was no dust “rolling over” the 

continuous miner at the time. In the third attempt at settlement, contained in the first set of joint 

stipulations, the parties stated that “rolling dust” is a reliable sign of plugged sprays and there 

was no rolling dust. The parties also asserted that the sprays were checked after the cut from E to 

F. Finally, the last stipulation added that the inspector did not know about the samples from the 

shuttle car operators when he issued the citations and there was no reliable evidence as to the 

duration of the exposure. Given all of the information provided, the Secretary has not made a 

case for low negligence as it is defined by the Commission. 

Inspector Dye issued the fourth citation, No. 8055978, about one and a half hours later on 

MMU-005 for failing to maintain the roof bolter vacuum as required by the ventilation plan. The 

CLR justified the change from moderate to low negligence by indicating that the bolter was in 

compliance at the beginning of the shift. The amended motion added that the 2 inch difference 

from 12 Hg. to 10 Hg. was not easily detectable by the roof bolter. The first stipulation added 

little to the parties’ justification and the second stipulation stated further that there was no 

evidence an agent was aware of the violation. The second stipulation also included a statement 

that the parties agreed that two factors were material in assessing negligence: the fact that the 

agent was not aware of the condition and that the difference between 10 Hg. and 12 Hg. was not 

easily detected. Given the information provided for this particular violation, I would not agree 

that the Secretary has met the definition of low negligence. The fact that the agent was not aware 

does not support a reduction to low negligence. A reading that was taken at the beginning of the 

shift may justify such a modification if more information was provided to explain the reading. 

There are clearly more facts the Secretary could have added to make the settlement of this 

citation and the corresponding reduction in penalty from $1,031.00 to $462.00 acceptable. 

The order denying the amended motion for settlement set forth the court’s reasons for 

finding that the proposed penalty reduction was not fair, reasonable, appropriate under the facts, 

or protective of the public interest. First, the information available did not support the proposed 

reductions to gravity and negligence. For each citation at issue, the parties presented insufficient 

information or information that had little to no bearing on the designation for which they sought 

modification. Second, the exercise of setting forth facts on which the parties have agreed to 

41 FMSHRC Page 325
disagree may partially fulfill the Commission’s directive from Am. Coal II, but it is not the sole 

criteria for the approval of settlement. Third, the parties’ initial joint stipulations, filed just prior 

to the issuance of the order denying settlement, added little to the proposed settlement. The 

document was nearly identical in content to the previously filed settlement motions, but with a 

different heading. It was therefore considered in denying the motion for settlement. Ultimately, it 

was determined that the information the parties set forth in support of settlement combined with 

the information available in the case file1

 did not support the proposed modifications. 

Following the court’s order denying settlement, the Secretary filed a 94-page submission 

just 36 hours prior to the scheduled hearing. The Secretary’s motion sought reconsideration of 

the settlement denial, or revocation of the subpoena to the inspector, or certification of certain 

issues for interlocutory appeal. In the interests of judicial economy, I convened the previously 

scheduled hearing and allowed counsel for both parties to address the outstanding motions. For 

the reasons set forth below, I deny the Secretary’s motion and each of his requests in the 

alternative. 

In the motion filed just prior to hearing, the Secretary first argues that the court abused its 

discretion by denying the parties’ initial proposed settlement, which was filed on March 25, 

2019. To support his argument, the Secretary asserts that the court failed to cite to the proper 

settlement standard and failed to provide guidance on what constitutes an appropriate settlement. 

As the Commission has observed repeatedly, a judge’s “front line oversight of the settlement 

process is an adjudicative function that necessarily involves wide discretion.” Sec’y of Labor on 

behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC 1097, 1101 (May 2014) (citations 

omitted). In the court’s initial email to the parties, they were advised that the settlement was not 

adequate, and that the four ventilation violations, as well as over exposure to dust, were serious 

issues. The email gave the parties an informal opportunity to go back and look at the settlement 

to decide if they wanted to present additional information or renegotiate the terms. The email 

was sent with the standards for reviewing penalty reductions in settlement in mind and was 

meant to give notice to the parties that they should revisit their settlement. As a result of that 

email, the parties submitted an amended motion that was then addressed, along with the first 

joint stipulations in a formal order denying the settlement. 

 The Secretary argues next in his Motion for Reconsideration that with respect to the 

denial of the parties’ amended settlement motion, the court made four errors amounting to an 

abuse of discretion. First, the Secretary contends that the court relied on Section 110(i) as the 

legal standard for reviewing the proposed settlement. This assertion has no merit. See Order 

Denying Settlement at 2 (applying the standard the Commission has articulated for evaluating 

penalty reductions in settlements, which directs judges to determine whether a proposed penalty 

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

1 The Secretary, joined later by Respondent, expressed some concern as to the contents of 

the court’s “file” in this case. Sec’y Mot. for Recons. at 3; Resp. Joinder. As clarified at hearing, 

the file referenced in the order denying settlement consists of the Secretary’s petition, 

Respondent’s answer, and any other documents that have been filed by or with the court since 

the penalty case commenced as well as information learned on a conference call and through 

emails. Tr. at 19-20. 

41 FMSHRC Page 326
referencing the requirement of the Mine Act to consider Sections 110(i) and (k) when evaluating 

proposed settlements). The Secretary then suggests that the Court’s reliance on the standard set 

forth in Am. Coal Co., 38 FMSHRC 1972, 1976 (Aug. 2016) [hereinafter “Am. Coal I”], is 

troubling. The Secretary bases this assertion on his belief that the Am. Coal. II decision “fully 

articulates the Commission’s legal standard for evaluating proposed penalty reductions.” Sec’y 

Mot. for Recons. at 4. I disagree. The Commission’s 2018 decision does not add additional 

elements to the standard articulated in 2016—the standard remains the same. Compare Am. Coal 

II, 40 FMSHRC at 984, 988, 991, 993, with Am. Coal I, 38 FMSHRC at 1976. Nor does the 2018 

decision supersede the standard set forth in the 2016 decision. Rather, Am. Coal II clarifies that 

mutually acceptable facts are sufficient to meet the standard for evaluating proposed penalty 

reductions in settlement. 

The Secretary then argues that the court was wrong to disregard the purported 

“enforcement value” of the parties’ proposed settlement. In support of this claim, the Secretary 

states that “the Commission validated the Secretary’s interest in the enforcement value of any 

given settlement” in Am. Coal II, 40 FMSHRC at 989. Sec’y Mot. for Recons. at 4 (emphasis 

added).2

 The Secretary’s position mischaracterizes the Commission’s statement. Far from 

validating the Secretary’s interest in the enforcement value of any given settlement, the 

Commission has observed that “[t]he Secretary makes a valid point that the fact that the 

proposed settlement preserves all of the citations as written could assist the Secretary in future 

enforcement efforts against this operator by ensuring that the paper record reflects the 

Secretary’s views regarding gravity and negligence stated in the citations.” Am. Coal II, 40 

FMSHRC at 989 (emphasis added). In the settlement at issue here, the operator agreed to accept 

the citations in a modified form, and not as originally issued. The Secretary’s motion fails to 

address the reason why accepting modified citations would be valuable in future enforcement 

actions.3

 As Congress has noted, the overall purpose of the penalty system is to encourage 

operator compliance with the Mine Act’s requirements. See S. Rep. No. 95-181, at 41 (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 (1978). While “enforcement value” could be 

a factor outside of the section 110(i) factors that might be relevant when evaluating a proposed 

settlement, the Secretary’s statements on enforcement value in this case, both in the motion for 

reconsideration and in his previous settlement motions, have not demonstrated the 

appropriateness of the settlement at issue here. 

The Secretary’s final two arguments allege that the court abused its discretion by 

inappropriately assigning probative value to the operator’s general history of ventilation 

violations, and by using hyperbole to misrepresent the terms of settlement. As the Commission 

has acknowledged, when reviewing information set forth in support of a reduced penalty in 

settlement, a judge should consider whether such information supports a finding that the 

2 The Secretary made a similar argument in another case before this court, Northshore 

Mining Co., Docket No. LAKE 2018-0177. 

3

 As Commissioner Cohen noted in Am. Coal II, “[t]he Secretary’s boilerplate recitations 

of having evaluated the value of compromise, the prospects of coming out better or worse after a 

trial, and ‘maximizing his prosecutorial impact’ add nothing.” 40 FMSHRC at 989 n.10. 

41 FMSHRC Page 327
proposed penalty reduction is fair, reasonable, appropriate under the facts, and protects the public 

interest. Am. Coal I, 38 FMSHRC at 1982. The exercise of highlighting certain facts that tend to 

support a judge’s decision regarding the appropriateness of settlement does not necessarily mean 

that the judge has given probative value to those facts over others. Rather, it is a window into 

how the court is evaluating the information before it, and it alerts the Secretary and the mine 

operator as to which portions of the settlement may need further review or explanation by the 

parties. This, in turn, helps to achieve Congress’ stated intent in the penalty settlement process to 

provide transparency to all interested parties. See Am. Coal II, 40 FMSHRC at 987-88. 

The Commission’s procedural rules require the parties to “provide factual support in the 

settlement proposal and for the Judge’s decision approving settlement to be supported by the 

record.” Am. Coal I, 38 FMSHRC at 1981; see also 29 C.F.R. §§ 2700.31(b), (c), and (g). In 

addition to looking to the modification to each citation, the settlement was reviewed and 

considered in its entirety. 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. As explained 

below, the 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 my denials of settlement. 

In the alternative to reconsidering the parties’ proposed settlement, the Secretary argues 

next for revocation of the subpoena duces tecum the court issued to John William Dye, the 

MSHA inspector who issued the citations in this case. The Secretary claims that the subpoena is 

unreasonable and unnecessary, therefore constituting an abuse of discretion.4

 While Inspector 

4

 In support of this argument, the Secretary once again references Northshore Mining Co., 

LAKE 2018-0177, and the court’s “unreasonable” statements at a hearing held on October 16, 

2018 regarding several other Northshore cases. The Secretary includes only a part of that history. 

In his motion for reconsideration, the Secretary argues that just as in Northshore, the court here 

has engaged in a “judicial fishing expedition” by seeking more information, this time from the 

inspector, to support the parties’ settlement proposal. Sec’y Mot. for Recons. at 9. The Secretary 

attempts to bolster this claim by alleging that the court previously made “inappropriate inquiries 

into the details of the parties’ settlement discussions” in Northshore. Id. at 9 n.9. 

 From the time the parties submitted their initial motion to approve settlement in 

Northshore, LAKE 2018-0177, the court repeatedly requested additional information that would 

support the proposed modifications because the information made available was insufficient. As 

the Commission noted in Am. Coal Co. II, Commission judges who properly determine that “a 

settlement motion lacks sufficient information may permissibly request further facts from the 

parties.” 40 FMSHRC at 988 (citing Black Beauty Coal Co., 34 FMSHRC 1856, 1863 (Aug. 

2012)). The initial motion, filed on July 24, 2018, did not contain facts sufficient to justify the 

Secretary’s total proposed penalty reduction of 80%. Following an email to the parties requesting 

(continued...) 

41 FMSHRC Page 328
Dye appeared at the April 24 hearing as directed, I did not ask him substantive questions, nor did 

I require him to turn over any documents. Although the Secretary’s motions and stipulations 

make reference to the inspector’s notes, they were not provided to the court here and thus not 

considered unless specifically set forth in a pleading. The Secretary’s argument regarding what a 

Commission Judge may ask to review in furtherance of a settlement has not been addressed by 

the Commission, and I do not address it here. 

Finally, in another alternative to his prior arguments, the Secretary requests the court 

certify for interlocutory review its two denials of settlement and issuance of the subpoena. Since 

the case has been heard, the matter is moot, but addressed briefly. The Secretary states that those 

decisions involve controlling questions of law and immediate review may materially advance the 

final disposition of these proceedings. Specifically, the Secretary argues that three controlling 

questions of law have been raised in this case: 

1) Whether the judge’s March 25, 2019 denial of settlement constitutes an abuse of

discretion;

2) Whether the judge’s April 17, 2019 denial of settlement constitutes an abuse of

discretion; and

3) Whether the judge’s April 17, 2019 subpoena to the MSHA inspector constitutes an

abuse of discretion, or is otherwise unreasonable.

Sec’y Mot. for Recons., at 11. 

4

 (...continued) 

additional facts, the Secretary submitted an amended motion, which also lacked sufficient 

information to demonstrate the appropriateness of the large penalty reductions. As a result, a 

conference call was held on August 13, and, in an email immediately following that call, the 

parties were directed yet again to provide more facts that would support the proposed penalty 

reductions. The Secretary then submitted a second amended settlement motion on August 23, 

2018, which included no additional facts from the Secretary but did contain more information 

provided by the operator’s counsel about the circumstances surrounding three of the violations. 

Both the Secretary and operator’s counsel were given the opportunity to discuss 

outstanding settlement issues related to Docket Nos. LAKE 2018-0177 and LAKE 2018-0147 at 

a hearing held on October 16, 2018. The Secretary attached the relevant excerpt of that hearing 

as Exhibit C to his motion for reconsideration here. The Secretary states in the motion filed in 

this case that the court’s statement at the Northshore hearing that it had not yet heard from the 

Secretary following the operator’s submission of additional information in LAKE 2018-0177 

constituted an inappropriate inquiry into the details of settlement. Sec’y Mot. for Recons. at 9 

n.9. With respect to the settlement reached in LAKE 2018-0147, it was the mine operator’s

counsel again who volunteered additional information, this time verbally at hearing, to help the

court “fulfill the duty of articulating reasons for the [settlement] approval so that the process of

compromising penalty amounts is transparent, as Congress intended.” Am. Coal II, 40 FMSHRC

at 988-89. In light of the additional information offered by the mine operator in both Northshore

cases, I ultimately approved those settlement agreements.

41 FMSHRC Page 329
Commission Rule 76 provides that a judge should certify a ruling for interlocutory review 

if it involves a controlling question of law and immediate review will materially advance the 

final disposition of the proceeding. 29 C.F.R. § 2700.76(a)(1). I find that interlocutory review of 

the court’s March 25, 2019 and April 17, 2019 denials of settlement is not merited under the 

facts of this case. Neither of these questions involves controlling questions of law; these two 

questions are not novel nor do they involve an unresolved question of law relevant to the case. 

The Commission has repeatedly addressed settlement requirements as they relate to contested 

civil penalties. See, e.g., Am. Coal II, 40 FMSHRC 983; Am. Coal I, 38 FMSHRC 1972; Black 

Beauty, 34 FMSHRC 1856. The Secretary may take issue with the Commission’s decisions, but 

the case law is clear: when evaluating penalty reductions in settlement, a judge must determine 

whether the proposed penalty reduction is fair, reasonable, appropriate under the facts, and 

protects the public interest. Am. Coal I, 38 FMSHRC at 1976. Here, I considered the facts based 

on the standard the Commission has articulated for evaluating penalty reductions in settlement 

and determined the parties’ proposed settlement was not fair, reasonable, appropriate under the 

facts, or protective of the public interest. 

I find further that interlocutory review of the court’s April 17, 2019 subpoena to the 

inspector is not merited based on the facts of this case. Although the Secretary’s argument may 

have merit, the issue in this case involves a judge’s authority to compel the inspector to appear at 

hearing, while the issue currently on review before the Commission deals with such authority 

during the settlement process and before a hearing on the merits. As the Secretary has 

recognized, the Commission and its judges have the authority to “compel the attendance and 

testimony of witnesses and the production of books, papers, or documents, or objects . . . at any 

stage of the proceedings before them.” 30 U.S.C. § 823(e). However, given the Secretary’s 

objection, the inspector was not questioned and no documents were produced. Accordingly, for 

the reasons set forth above, the Secretary’s motion is denied in its entirety. 

III.MATTERS FOR HEARING

At the hearing on April 24, the Secretary and the mine operator refused to present 

witnesses or exhibits in support of their case. Instead, the parties presented the court with 

amended joint stipulations. The stipulations contained provisions almost identical to the terms 

that comprised the previously rejected settlement motions, but with a few additional facts related 

to jurisdiction. The amended stipulations also included information related to the mine’s history 

of violations, since that history had been raised in the order denying settlement, as well as a 

statement that the parties agreed that the information contained in each of the citations was 

accurate, with some exceptions. Finally, the amended stipulations contained statements that the 

parties agreed to the level of negligence, the modifications, and the modified penalty amount. 

Following a discussion regarding the appropriateness of reducing the parties’ settlement 

agreement to stipulations, the Secretary’s representative read the additional information into the 

record and the amended joint stipulations were admitted as Exhibit J-2. Tr. at 29-32. However, 

the stipulations were not accepted in lieu of evidence. The stipulations are more accurately 

characterized as a modified settlement motion at best, and the parties offered no evidence outside 

of those stipulations. Without an acceptable settlement agreement, the parties to a case are 

41 FMSHRC Page 330
expected to renegotiate a settlement that is acceptable to the Commission, or present evidence at 

hearing.5

 The parties did neither. 

While ostensibly offered for the purpose of streamlining the hearing, the stipulations at 

issue here were inappropriate because they served as an indirect means of effectuating the same 

settlement that the court denied twice prior to hearing. In Exhibit J-2, the parties simply took 

their reasons and conclusions supporting settlement from the previously denied motions and 

reduced those reasons and conclusions to “stipulations of fact.” Thus, for the most part, they 

were not stipulations of fact but legal conclusions. Stipulations of fact should not contain restated 

conclusions or arguments; stipulations of fact should contain facts only. For example, stipulation 

7(i) states that “the parties agree the appropriate negligence level is ‘[l]ow.’” The parties make 

similar statements with respect to each remaining citation at issue. However, the degree of 

negligence is not a fact; rather, the degree of negligence is a legal conclusion to be determined by 

the court based on the facts available for review. I find it troubling and frustrating that instead of 

seeking to renegotiate a settlement, the parties have instead attempted to back door a settlement 

by reducing previously rejected arguments and conclusions to “stipulations of fact.” 

Stipulations of fact may be appropriate in two instances: when there are no facts in 

dispute and the parties are seeking summary judgment, and when the parties want to aid in the 

process of hearing. Tr. at 27. When viewed in the context of summary decision, stipulations may 

be appropriate with proper supporting evidence, such as affidavits. Stipulations may also be 

appropriate at hearing as a means to narrow certain issues, as the Secretary argues. However, 

stipulations are no substitute for and do not take the place of witnesses and exhibits at hearing. 

The information set forth in Exhibit J-2 was considered in the analysis above as part of an 

amended motion to approve settlement. Otherwise, the joint stipulations are simply a subterfuge 

to have a settlement approved that was unacceptable in its original form. Nonetheless, I address 

each citation below based upon the factual information provided in Exhibit J-2. In doing so, I 

accept the agreed upon facts contained in the stipulations but, as I would in any decision, come 

to conclusions that are supported by those facts contained in the record. The conclusions I have 

reached based upon the stipulated facts are not the same as those reached by the parties. 

A. Citation No. 8055975

Citation No. 8055975 was issued by Inspector Dye on December 4, 2018 pursuant to 

Section 104(a) of the Act for a violation of 30 C.F.R. § 75.370(a)(1). The citation alleges that the 

operator did not follow its currently approved ventilation plan by failing to ensure that 3,000 cfm 

of air was provided behind the line curtain in the active section where the roof bolter was 

operating. The inspector determined that the cited condition was reasonably likely to cause a 

5The Secretary routinely refuses to renegotiate settlements that have been denied, thereby 

rendering meaningless the requirement that a settlement be approved by the Judge. 

41 FMSHRC Page 331
permanently disabling injury to two people, was S&S,6

 and that it resulted from moderate 

negligence. The Secretary proposed a penalty of $1,031.00. 

As part of the parties’ proposed settlement, the Secretary has agreed to reduce negligence 

from moderate to low, thereby reducing the penalty to $462.00 based on the Part 100 point 

system. In their settlement motions and Exhibit J-2, the parties state that they agree to a reduction 

to low negligence because of mitigating circumstances. The parties explain that the section 

supervisor took an air reading behind the line curtain “just prior to the inspection,” and that 

reading showed 3,200 cfm of air. However, when the inspector took an air reading, the 

anemometer showed 2,792 cfm, which is 93% of what is required by the plan. In addition, the 

parties agree that the inspector’s notes confirm that the foreman stated he had taken an air 

reading that reflected over 3,000 cfm just prior to the roof bolters installing roof bolts. Based on 

the information presented, I cannot tell if the supervisor took one reading prior to the roof bolters 

entrance to the area or if the reading was taken again just prior to the inspector’s arrival. I do 

accept the fact that the supervisor was present at the time of the violation and he did take an air 

reading at some point during the shift. In Exhibit J-2, the parties add 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. This fact was not considered by 

the inspector.” It may be a fact that air does not reach equipment as it moves farther from the 

source, but there is no evidence that was the case in this instance. Furthermore, there is no 

evidence to show that the miner could not discern that the volume of air was less than originally 

measured. Instead, the parties use the term “potentially” to describe this alleged fact. The facts 

agreed to by the parties do not establish that negligence should more correctly have been marked 

as low. 

In evaluating negligence, the Commission has explained that each mandatory standard 

carries with it an accompanying duty of care to avoid violations of that standard and “an 

operator’s failure to meet the appropriate duty can lead to a finding of negligence if a violation of 

6

 A “significant and substantial” (“S&S”) violation is described in Section 104(d)(1) of 

the Mine Act as a violation “of such nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A 

violation is properly designated S&S “if, based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). 

The Commission has explained that the overexposure to respirable dust resulting from a 

violation of the respirable dust standards, i.e., 30 C.F.R. §§ 70.100 and 70.101, is presumed to be 

S&S. U.S. Steel Mining Co., 8 FMSHRC 1274, 1281 (Sept. 1986); Consol. Coal Co., 8 

FMSHRC 890, 899 (June 1986). This conclusion was based on “the nature of the health hazards 

at issue, the potentially devastating consequences to affected miners, and the strong concern 

expressed by Congress for the elimination of occupation-related respiratory illnesses to miners.” 

U.S. Steel Co., 8 FMSHRC at 1281. While there is no such presumption in this case because a 

respirable dust standard is not involved, the same principles apply. 

41 FMSHRC Page 332
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 Energy, Inc., 

38 FMSHRC 2033, 2047 (Aug. 2016); Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 

2015); U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984). 

The Secretary defines negligence as “conduct either by commission or omission, which 

falls below a standard of care established under the Mine Act to protect miners against the risks 

of harm.” 30 C.F.R. § 100.3(d). According to the Secretary’s regulations, moderate negligence 

occurs when the operator knew or should have known of the violative condition, but there are 

mitigating circumstances that exist. Id. Low negligence occurs when the operator knew or should 

have known of the violative condition, but there are considerable mitigating circumstances. Id.

Under the Secretary’s own guidelines, the modification to low negligence is not warranted. 

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 Mining, 37 

FMSHRC at 1702-03; see also Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3101-02 (Dec. 

2014). Rather, Commission judges consider “the totality of the circumstances holistically” and 

may find high negligence in spite of mitigating circumstances or moderate negligence without 

identifying mitigating circumstances. Brody Mining, 37 FMSHRC at 1702-03. 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)). 

Here, the information the parties presented, both in their settlement proposals and 

stipulations, does not support a legal finding of low negligence. It is not clear when the air 

reading was taken by the supervisor or if further air readings were taken as the roof bolters or 

continuous miner started to advance. A section supervisor, whose actions may be attributable to 

an operator, should be diligent in checking the air supply throughout the cut. This is particularly 

true when he understands that as the continuous miner advances, it is farther from the ventilation 

source and less effective. The Commission has explained in Ohio County Coal, 40 FMSHRC 

1096, 1099 (Aug. 2018), that an operator’s actual or constructive knowledge is a key component 

of a negligence evaluation. As part of the settlement on review in that case, the Secretary had 

agreed to reduce negligence on one citation from moderate to low specifically because the 

foreman was not present. Id. at 1098. Based on that reasoning, the Secretary would not accept a 

modification to low negligence for the citation at issue here, where the foreman was present. The 

proposed reduction to low negligence essentially takes the responsibility off of the foreman and 

the mine to live up to the standard of care that is required under the Mine Act. 

The order denying the amended settlement explained that the history of the mine operator 

may be important to an evaluation of negligence in this case. In response, the Secretary included 

a statement in Exhibit J-2 that the operator had only violated the ventilation plan once in the past 

two years in a manner similar to that cited here. However, the plan is considered as a whole, and 

the supervisors, as well as the miners, are trained on the requirements of the plan. Ventilation is 

important to help prevent exposure to coal dust and silica every day, and by reducing the 

41 FMSHRC Page 333
negligence on all four citations, along with a large reduction in penalty, the Secretary is 

removing the deterrent effect contemplated by the Act. If the supervisor or the miners do not 

understand how to best effectuate the ventilation plan, then retraining may be necessary. 

Additionally, a supervisor must set a good example by continuing to monitor the air as the 

equipment moves and dust is generated. If indeed it is a fact that the ventilation effectiveness 

changes as the continuous miner moves, then the supervisor and the continuous miner operator 

should be aware of that fact and adjust accordingly. For all of these reasons, I do not agree that 

the record as a whole suggests that the negligence should be reduced to low for this violation. I 

find further that the Secretary has not met his burden of proving the violation, as issued or as he 

proposes to modify, through the stipulations presented here. 

B. Citation No. 8055976

Inspector Dye issued this citation for another violation of 30 C.F.R. § 75.370(a)(1) only 

12 minutes after Citation No. 8055975 was terminated. Citation No. 8055976 alleges that the 

operator did not follow the ventilation plan in the crosscut of an active section. Specifically, the 

operator failed to remove the tail curtain in the entry intake, which allowed dust generated by the 

continuous miner to be carried over the mining crew and exposed the miners to respirable coal 

dust and silica. According to the citation, page 3-9 of the ventilation plan requires the tail curtain 

to be dropped in the intake entry when cutting into the intake air. The inspector marked the 

citation as highly likely to cause a permanently disabling injury to five people, S&S, and 

resulting from high negligence. The citation was terminated 10 minutes after it was issued, and 

the Secretary subsequently proposed a civil penalty in the amount of $12,321.00. 

The parties proposed to reduce negligence from high to moderate and to reduce the 

likelihood of injury from highly likely to reasonably likely. These modifications resulted in a 

drastic reduction in penalty to $1,666.00 based on Part 100. In support of the proposed reduction 

to likelihood of injury, the parties asserted that results of Continuous Personal Dust Monitoring 

(“CPDM”) samples taken on shuttle car operators at the time the violation was issued were 

below the 1.5 mg standard. They also argued that a reduction in likelihood of injury was 

warranted because of the short duration of exposure to the condition. In support of reducing 

negligence from high to moderate, the parties stated that while the section foreman was at the 

continuous miner during the cut, he was unaware that the curtain had not been adjusted prior to 

the cut as required by the plan. 

The Commission evaluates negligence from the starting point of a traditional negligence 

analysis and examines whether the operator has met “the requisite standard of care—a standard 

of care that is high under the Mine Act.” Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 

1264 (D.C. Cir. 2016) (citing Brody Mining, 37 FMSHRC at 1702). The Commission has 

explained that the standard of care is that of a reasonably prudent person familiar with the mining 

industry. Brody Mining, 37 FMSHRC at 1702. The Mine Act places primary responsibility on 

operators to maintain safe and healthful working conditions in mines, and they are thus expected 

to set an example for miners working under their direction. Newtown, 38 FMSHRC at 2047; 

Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987); see also 30 U.S.C. § 801(e). “Such 

responsibility not only affirms management’s commitment to safety but also, because of the 

41 FMSHRC Page 334
authority of the manager, discourages other personnel from exercising less than reasonable care.” 

Wilmot, 9 FMSHRC at 688. 

A reduction in negligence is simply not supported by the facts surrounding the violation 

and the information the parties have submitted in support of settlement. Section managers and 

foremen have a great responsibility to maintain safe and healthful working conditions at each 

mine. They must be proactive in their duties and take steps to ensure that they are in compliance 

with the very plans that are in place to protect the health and safety of miners. 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. As stated above, a foreman 

or manager must be familiar with the ventilation plan. The suggestion that the foreman was 

unaware of the cited condition indicates that the foreman was extremely careless or not properly 

trained. In any event, the foreman failed to live up to the standard of care required under the 

Mine Act and a downward adjustment to negligence is not appropriate in this circumstance. Just 

as with the other violations at issue here, certain factors such as supervisor familiarity with the 

plan, ventilation violations issued in a very short period of time with at least one supervisor in 

the working area, and the serious nature of exposure to coal dust support the findings initially 

made by the inspector. These factors therefore make it difficult to agree that the proposed 

modification to this citation and the accompanying severe reduction in penalty is fair, reasonable, 

or in the public interest. 

Similarly, the information the parties have presented does not support a modification to 

the likelihood of injury. As the citation states, the failure to properly position the tail curtain 

caused dust from the continuous miner to be carried over the mining crew and exposed miners to 

respirable dust and silica. The fact that CPDM samples from shuttle car operators were below the 

standard has little impact on the evaluation of the likelihood of injury or illness for this citation. 

As I noted in the order denying settlement, shuttle car operators do not receive the same or 

similar respirable dust exposure as the continuous miner operators. Shuttle car operators drive in 

and out of the area being cut, whereas the continuous miner operators remain with the equipment 

in the area being mined. In addition, a short duration of exposure to respirable dust would not 

alone reduce the likelihood of injury or illness. While a single exposure to respirable dust or 

silica may not cause serious respiratory disease, there is little dispute that repeated exposure of 

short durations ultimately contributes to the development of such disease. See Consol. Coal Co., 

8 FMSHRC at 898-99. Pneumoconiosis, or black lung, is extremely serious and it is not always 

known how much exposure ultimately results in the disease. Accordingly, a reduction in 

likelihood of injury or illness would not be appropriate here and I cannot approve such 

adjustment. Even if I accept all of the facts presented in the parties’ stipulations, I cannot reach 

the conclusions set forth by the parties. I find that the Secretary has not met his burden of proof 

with regard to this violation, as originally issued or in its proposed modified form. 

C. Citation No. 8055977

Citation No. 8055977 was issued 35 minutes after Citation No. 8055976 was terminated, 

and alleges a third violation of 30 C.F.R. § 75.370(a)(1). The inspector observed that the operator 

was not maintaining the minimum number of operating water sprays on the continuous miner 

while it was operating on the active section. When the inspector checked the sprays, only 19 of 

41 FMSHRC Page 335
30 were operating. According to page 4-2 of the ventilation plan, a minimum of 27 of 30 sprays 

are required to be operating while the continuous miner is in use. The inspector marked the 

citation as highly likely to cause a permanently disabling injury to five people, S&S, and 

resulting from moderate negligence. The citation was terminated 55 minutes after it was issued. 

The Secretary proposed a civil penalty in the amount of $3,710.00 for this alleged violation. 

As part of their settlement proposal, the parties agreed to reduce the likelihood of injury 

from highly likely to reasonably likely, and to reduce negligence from moderate to low. The 

modifications resulted in a reduced penalty of $749.00 per Part 100. The parties again pointed to 

the CPDM samples taken from the shuttle car operators and the short duration of exposure to the 

condition to support the modification to likelihood of injury. With respect to negligence, the 

parties stated that a reduction was justified because the location of the plugged sprays made it 

difficult for the operator of the continuous miner to recognize that the sprays were plugged. In 

Exhibit J-2, the parties assert that “the rolling of dust is a reliable visual sign that water sprays 

may be ineffectively controlling dust, and dust was not observed ‘rolling’ over the miner 

operator or shuttle car operators.” According to the parties, this information was not known or 

considered by the inspector. The parties also agreed that the inspector’s notes reflected that he 

was told that the respirable dust parameters were in compliance at the beginning of the shift and 

the sprays were checked after the third cut was completed. Finally, the Secretary submits that he 

has “no reliable evidence of the length of time the condition existed or that the concentration of 

respirable dust exceeded the standard.” 

The parties describe the same arguments regarding likelihood of injury as they did to 

support the reduction in gravity to Citation No. 8055976. Those arguments are equally 

unavailing with respect to this citation and I incorporate my reasoning set forth above in 

rejecting the modification here. Citation No. 8055977 indicates that it took almost an hour for the 

water sprays to be repaired and cleaned. The condition of the sprays suggests extensive build-up 

and clogging which would have taken a considerable amount of time to develop. In addition, the 

information the parties provided that dust was not observed “rolling” over the continuous miner 

operator or shuttle car operators is not enough to reduce the likelihood of injury. If dust were 

“rolling” over the continuous miner, it would indicate a serious problem that could be attributed 

to a number of issues. The absence of the rolling dust is not proof of anything. 

The information that the parties submitted purporting to support a modification from 

moderate to low negligence is also unpersuasive. As described in the citation, the mine’s 

ventilation plan requires that 27 of the continuous miner’s 30 water sprays operate while the 

equipment is in use; the inspector found that only 19 of 30 were operational. This undoubtedly 

results in increased dust in the air as the continuous miner cuts into the active section. While I 

understand that the location of the non-operational water sprays may have made it more difficult 

to see exactly which sprays were plugged, it is hard to accept that a reasonably prudent miner 

would not recognize that only 63% of the sprays were operating as expected. As stated above, 

the assertion in the stipulation that there was no visible dust “rolling” over the miners or that 

there is no reliable evidence as to the length of time the condition existed are not facts that 

necessarily support a finding of low negligence. There is, in fact, evidence to suggest the plugged 

sprays were extensive, and there is information in the file to support the fact that supervisors 

were present. Finally, there is no requirement that the Secretary found, through dust samples, that 

41 FMSHRC Page 336
the miners were exposed to dust when looking at violations of the ventilation plan and when 

assessing negligence of a ventilation plan violation. 

As the citation describes, the foreman was in the area of the MMU-005 during the course 

of the inspection. The Commission has long recognized that mine management is held to a 

heightened standard of care. Newtown, 38 FMSHRC at 2047. When a violation is committed by 

a non-supervisory employee, the conduct of the rank-and-file miner is typically not imputable to 

the operator for negligence purposes. Ky. Fuel Corp., 40 FMSHRC 28, 31 (Feb. 2018). In such 

circumstances, Commission judges must analyze “whether the operator has taken reasonable 

steps to prevent the rank-and-file miner’s violative conduct.” Id.; see also Knight Hawk Coal, 

LLC, 38 FMSHRC 2361, 2369 (Sept. 2016). Relevant considerations include “the foreseeability 

of the miner’s conduct, the risks involved, and the operator’s supervising, training, and 

disciplining of its employees to prevent violations of the standard [at] issue.” A.H. Smith Stone 

Co., 5 FMSHRC at 15-16. The amount of non-operational water sprays leads me to conclude that 

there was general lack of initiative from miners and management to make sure that the 

continuous miner’s water sprays were being properly cleaned throughout each shift. Given the 

overall circumstances related to the four ventilation violations, including the seriousness of 

exposure to coal dust and the reasonable expectation as to the supervisor’s knowledge of a 

ventilation plan, the proposed modifications to this citation are not supported by the information 

available for review. In addition, there are insufficient facts in the file to support a conclusion 

that the Secretary has met his burden to prove the violation as issued. 

D. Citation No. 8055978

Finally, Citation No. 8055978 was issued for a fourth violation of 30 C.F.R. § 

75.370(a)(1) just 55 minutes after Citation No. 8055977 was terminated. The citation alleges that 

the roof bolter operating on the active section was not in compliance with ventilation plan 

requirements. When the inspector checked the vacuum on the return side of the roof bolter, only 

10 in. Hg of pressure was provided. According to the citation, page 2-1 of the ventilation plan 

requires a minimum of 12 in. Hg to be maintained while the roof bolter is operating on the active 

section. Inspector Dye determined that the condition was reasonably likely to cause a 

permanently disabling injury to two people, was S&S, and resulted from moderate negligence. 

The citation was terminated 20 minutes after it was issued. The Secretary proposed a civil 

penalty of $1,031.00 for the alleged violation. 

In their settlement proposals, the parties agreed to reduce negligence from moderate to 

low. To support this change, the parties explained that the vacuum’s parameters were compliant 

at the beginning of the shift, which was reflected in the inspector’s contemporaneous notes. The 

Secretary does not indicate who provided the inspector with that information or how much time 

had elapsed. The parties also asserted that the difference between 10 and 12 in. Hg is not easily 

detected by the roof bolter operator, but did not submit facts to support that supposition in 

general or as it relates to this violation. In Exhibit J-2, the parties added that there was no 

evidence to suggest an agent of the operator was aware of the pressure issue. They could not 

determine the length of time the condition existed, and there was no evidence that the 

concentration of respirable dust exceeded the standard. 

41 FMSHRC Page 337
While the parties have submitted information that relates to the evaluation of negligence, 

the information on its own does not justify a modification from moderate to low. The parties’ 

statement that no evidence exists to suggest an agent of the operator was aware of the pressure 

discrepancy does not validate a reduction from moderate negligence to low. The standard of care 

here revolves around whether a reasonably prudent miner knew or should have known of the 

violative condition. Simply stating that an agent of the operator did not know of the condition, 

when it has been admitted that the foreman was at the location when the inspector arrived, is not 

enough. Also, there is no indication why a 2 in. Hg difference in pressure is not easily detected 

by the roof bolt operator. Without that information, it is difficult to fully assess whether the 

miner or operator should have known about the pressure differential. Just as with the citations 

addressed previously, the entire settlement for the four ventilation violations was considered in 

reaching the conclusion that the settlement is not supported by the record, and is not fair or in the 

public interest. I therefore cannot accept the parties’ request to modify the negligence for this 

citation. In addition, the Secretary has not met his burden to demonstrate the violation as alleged 

in the citation, or the violation as modified. 

IV. CONCLUSION

To prevail on a penalty petition, the Secretary bears the burden of proving an alleged 

violation by a preponderance of the evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066, 

1070 (Sept. 2000), aff’d 272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc., 9 FMSHRC 903, 

907 (May 1987). The Secretary may establish a violation by inference in certain situations, but 

only if the inference is “inherently reasonable” and there is “a rational connection between the 

evidentiary facts and the ultimate fact inferred.” Garden Creek Pocahontas Co., 11 FMSHRC 

2148, 2152-53 (Nov. 1989). Once a ventilation plan has been approved and adopted, its 

provisions are enforceable at the mine as mandatory standards. Martin County Coal Corp., 28 

FMSHRC 247, 254 (May 2006). The Commission has recognized that a ventilation plan is 

violated when an operator does not follow its specific terms. See Peabody Coal Co., 16 

FMSHRC 2199, 2201-02 (Nov. 1994). 

The parties submitted two motions and then joint stipulations in an effort to provide 

evidence sufficient to approve the proposed settlement. When those attempts failed, the parties 

submitted Exhibit J-2, the amended joint stipulation, as evidence for the violations at hearing. 

The Commission decisions regarding settlement explain that it is the Commission Judge who 

must review and approve a settlement. Further, the Judge is not required to blindly accept 

assertions and conclusions that are not supported in law. If the Secretary cannot provide an 

acceptable settlement and refuses to renegotiate the terms, the only other avenue is a hearing on 

the merits. Here the hearing held on April 24 addressed the proposed settlement, the motions 

filed by the Secretary, and the facts submitted in support of the Secretary’s position. Given that 

an appropriate settlement was not submitted, the parties were expected to participate in the 

hearing and provide evidence to support their positions. 

At the hearing, the parties called no witnesses and entered no evidence into the record 

except for Exhibit J-2, the Amended Joint Stipulation. The Secretary rested on the information 

41 FMSHRC Page 338
contained in the settlement motions and Exhibit J-2. Accordingly, the record in this case 

demonstrates that the Secretary did not meet his burden to establish the violations alleged in the 

citations and therefore the citations are vacated and the case dismissed. 

V.ORDER

Based on the above findings, there is no acceptable settlement agreement and the 

Secretary has not met his burden of proof at hearing on the merits. Accordingly, the case is 

hereby DISMISSED. 

/s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (U.S. Certified First Class Mail) 

Edward V. Hartman, Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, 

Room 844, Chicago, IL 60604 

Michael T. Cimino, Jackson Kelly, PLLC, 500 Lee Street East, Suite 1600, Charleston, WV 

25301 

Alan S. VanCuren, Hopedale Mining LLC, P.O. Box 415, Hopedale, OH 43976 

41 FMSHRC Page 339
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 

June 27, 2019 

DECISION AND ORDER 

Appearances: Barbara M. Villalobos, U.S. Department of Labor, Office of the Solicitor, 

230 S. Dearborn Street, Room 844 Chicago, Illinois 60604 

Arthur M. Wolfson, Fisher & Phillips LLP, One Oxford Center, 301 Grant 

Street, Suite 4300, Pittsburgh, PA 15219 

Before: Judge Simonton 

I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration, against Peabody Midwest 

Mining, LLC, (“Peabody” or “Respondent”), pursuant to the Federal Mine Safety and Health Act 

of 1977 (“Mine Act”), 30 U.S.C. §801.1 At issue are two section 104(d)(2) Orders alleging 

violations of 30 C.F.R. § 75.400 and 30 C.F.R. § 75.363(a), respectively. Peabody challenges the 

fact of violation, S&S and gravity findings, and the negligence and unwarrantable failure 

designations for each Order. 

The parties presented testimony and documentary evidence at a hearing held in 

Henderson, Kentucky on February 20, 2019. After fully considering the testimony and evidence 

presented at hearing and the parties’ post-hearing briefs, I modify Order No. 9106459 to 

moderate negligence and vacate Order No. 9106460. I assess a penalty of $2,500.00.

1

 In this decision, the joint stipulations, transcript, the Secretary’s exhibits, and 

Respondent’s exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. S–#,” and “Ex. R–#,” 

respectively. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

PEABODY MIDWEST MINING, LLC, 

 Respondent. 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2018-0159 

A.C. No. 12-02295-457966

Mine: Francisco Underground Pit 

41 FMSHRC Page 340
II. STIPULATIONS OF FACT

The parties jointly filed eight stipulations of fact in their prehearing reports and read 

stipulations nine and ten into the record at hearing: 

1. Peabody Midwest Mining, LLC, is an “operator” as defined in Section 3(d) of the Federal

Mine Safety and Health Act of 1977, as amended (Mine Act), 30 U.S.C. § 803(d), at the

time the citations at issue in this proceeding were issued.

2. Peabody Midwest Mining, LLC operated the Francisco Underground Pit located in

Francisco, Gibson County, Indiana at the time the subject violations were issued.

3. The Francisco Underground Pit mine is subject to the jurisdiction of the Federal Mine

Safety and Health Act of 1977.

4. These proceedings are subject to the jurisdiction of the Federal Mine Safety and Health

Review Commission and its designated Administrative Law Judges pursuant to sections

105 and 113 of the Mine Act.

5. The individual whose signature appears in Block 22 of the citations at issue in this

proceeding was acting in his official capacity and as an authorized representative of the

Secretary of Labor when the citations were issued.

6. A duly authorized representative of the Secretary served the citations and terminations of

the citations upon the agent of the Respondent at the date and place stated therein as

required by the Mine Act, and the citations and terminations may be admitted into

evidence to establish their issuance.

7. The total proposed penalty for the citations at issue ($23,519.00) will not affect the

Respondent’s ability to continue in business.

8. The Orders contained in Exhibit A attached to the Petition for Assessment of Penalty are

an authentic copy of the citations at issue in this proceeding with all appropriate

modifications and terminations, if any.

9. Citation No. 9106452, which is Secretary’s Exhibit S–8, is a final violation with all

original determinations. It was issued on October 31, 2017, at 8:45 a.m. and terminated

by MSHA at 10:15 a.m.

10. Citation No. 9106453, which is Secretary’s Exhibit S–9, is a final violation with all

original determinations. It was issued on October 31, 2017, at 8:55 a.m. and terminated

by MSHA at 10:18 a.m.

Secretary’s Prehearing Report at 2-3; Tr. 9. 

41 FMSHRC Page 341
III. FINDINGS OF FACT AND SUMMARY OF TESTIMONY

Peabody Midwest Mining, LLC, owns and operates the Francisco Underground Pit, a 

bituminous coal mine located in Gibson County, Indiana. At the time of the inspection, the 

Francisco Pit had three working units. Tr. 140. Each unit contains two working sections. Tr. 140. 

On the morning of October 31, 2017, MSHA Inspector Nicolas Vandergriff2 and 

Supervisory Inspector Anthony DiLorenzo arrived at the mine to begin a routine inspection. Tr. 

35, 139. Todd Seilhymer,3 a compliance officer at Peabody, accompanied the inspection. Tr. 139. 

The party began the inspection in Unit 3 at the 3-C Beltline. Tr. 53-54, 139. Coal produced in 

Unit 3 will dump onto the 3-C Beltline, transfer to 3-B, to 3-A, and finally up the main south belt 

to the prep line. Tr. 141. Vandergriff issued two initial citations in the 3-C Beltline, one for 

improperly spaced fire suppression and another for accumulations along the tail piece that 

continued along 3-B. Exs. S–8, S–9; Tr. 143. Those citations were abated as the inspection party 

proceeded to 3-B, where Vandergriff met with mine examiner Ryan Kyle Brown to observe his 

examination of the beltline. Tr. 55. At this time, Seilhymer followed behind in a ride as the 

Inspectors and Brown walked along the belt. Tr. 148. 

Miners examine the conveyor belts at each working section once a shift. Peabody 

conducts pre-shift examinations at the same time as its on-shift examinations. Examiners 

evaluate any conditions they find and determine whether or not those conditions rise to the level 

of a “hazard” that must be immediately addressed. If an examiner discovers a hazard, they will 

address the situation immediately. If the examiner decides that the condition does not require 

immediate attention, they will record the condition in the inspection book, and crews will address 

the matter if they have time or pass the matter to the next crew. Once a condition is corrected, the 

miner that completed the task will report to his supervisor, and one of those two miners will note 

the correction in the inspection book. Tr. 220. 

As Brown conducted the examination, Vandergriff noticed that accumulations of float 

coal dust were present along the beltline. Tr. 149. He testified that the accumulations were 

extensive and stretched from crosscut 28 to 23, measuring between one-eighth and one-quarter of 

an inch. Tr. 58-59. He observed the accumulations on every horizontal structure, including the 

belts, the ground, the water line, and all over the ribs. Tr. 58. Although he noted that the 

accumulations existed for five shifts, at hearing Vandergriff estimated that the accumulations had 

been present for two to three active shifts based on their extensiveness and because the beltline 

was relatively new. Tr. 63, 120. 

2

 Vandergriff has been a MSHA Coal Mine Inspector since April of 2015. Tr. 32. Prior to 

that, Vandergriff worked at Sunrise Coal in Carlisle, Indiana for nine years. Tr. 32. There he 

worked in nearly every facet of the mine, from outby work to work on the unit. Tr. 32-33. He 

also served as a foreman and belt examiner for over two years. Tr. 32-33. 

3

 Todd Seilhymer has been a coal miner for 22 years. Tr. 138. His job duties include 

escorting MSHA inspectors, inspection recordkeeping and documentation. Tr. 138. He is a 

certified mine foreman in Indiana and Illinois. He is also a certified examiner in Illinois. Tr. 138. 

41 FMSHRC Page 342
At or around crosscut 23, Vandergriff reportedly asked Brown whether he considered the 

accumulations to constitute a hazard or a condition. Tr. 57-58. Vandergriff testified that Brown 

told him that he did in fact consider the accumulations to be a hazard but was instructed to write 

it as a condition in the pre-shift inspection book. Tr. 58. According to Vandergriff, Brown told 

him that they do not have enough examiners and that he often felt rushed to complete the exam 

within the required timeframe. Tr. 58. 

Brown disputed Vandergriff’s recollection. He testified that Vandergriff and DiLorenzo 

accompanied him during his examination, but lingered behind him. Tr. 259. When he turned 

back he noticed the inspectors kicking rock dust on the ground and asked them if there was an 

issue. Tr. 259-60. Vandergriff then asked him if he believed the accumulations were a hazard. Tr. 

263. When asked how he would categorize the accumulation, he told Vandergriff that he would

call it a condition because there was no heat source or gas present and the size of the

accumulations were not extensive and did not contain a significant amount of float coal dust. Tr.

260-63. He believed that the color of the material indicated that it was primarily road dust. Tr.

261. Brown also denied telling Vandergriff that he believed the accumulations constituted a

hazard in his view, but admitted saying sometimes it is hard to get the work done with limited

personnel. Tr. 264, 270-271. Brown also explained in his testimony that if the accumulations he

finds are in fact hazards he doesn’t write them in the examination book for the next shift to

address but proceeds to immediately address the hazards. Tr. 264.

Vandergriff and DiLorenzo conversed and decided that the accumulations warranted a 

citation. Vandergriff asked Seilhymer to call out to see what examiners wrote about the belt line 

in the pre-shift inspection book over the previous two shifts. Tr. 149. Seilhymer did so and was 

informed that the book said that the 20 to the tail needed dusting, while 3-20 needed brooming. 

Tr. 150. It did not list any hazards for the dates in question. Exs. S–6, S–7. Vandergriff then 

issued the two (d) Orders at issue. He then proceeded from crosscut 29 to crosscut 3, taking 

pictures and notes regarding the accumulations along the way. Tr. 61. He used a white piece of 

notebook paper to note the contrast in color of the accumulations. Tr. 61. After he finished 

photographing the area, Vandergriff exited to make copies of the pre-shift inspection book. Tr. 

63-64.

Once Vandergriff issued the (d) Orders, Seilhymer called mine manager Mike Butler to 

inform him that he was shutting off the beltline and to ensure that the mine did not start 

abatement efforts until he completed his investigation. Tr. 151-52. Seilhymer remained in the 3-

B area after the Inspectors left to investigate on behalf of Peabody. Tr. 156. He had been alone 

on the inspection and unable to both take notes and keep up with the Inspectors as they 

photographed the belt line. Tr. 156. He proceeded to follow the Inspectors’ route as closely as 

possible to take his own photographs and samples. Tr. 181. He used a paint chip, consisting of 

three shades of gray, to compare the color of the accumulations. Tr. 159-60. Following 

Seilhymer’s investigation, Peabody terminated the Orders on the morning of November 1, 2018. 

Exs. S–2, S–3. The mine challenges the fact of violation; the gravity, negligence and 

unwarrantable failure designations; and the Secretary’s penalty assessments for each Order.

41 FMSHRC Page 343
IV.LEGAL PRINCIPLES 

A. Establishing a Violation 

The Commission has long held that “[i]n an enforcement action before the Commission, 

the Secretary bears the burden of proving any alleged violation.” Jim Walter Res., Inc., 9 

FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 1992). The 

Commission has described the Secretary’s burden as: 

The burden of showing something by a “preponderance of the evidence,” the most 

common standard in the civil law, simply requires the trier of fact “to believe that 

the existence of a fact is more probable than its nonexistence.” 

RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas 

Co., 11 FMSHRC 2148, 2152 (Nov. 1989). 

 The Secretary may establish a violation by inference in certain situations. Garden Creek 

Pocahontas Co., 11 FMSRC at 2153. Any such inference, however, must be inherently 

reasonable, and there must be a rational connection between the evidentiary facts and the 

ultimate fact inferred. Mid-Continent Res., 6 FMSHRC 1132, 1138 (May 1984). If the Secretary 

has established facts supporting the citation, the burden shifts to the Respondent to rebut the 

Secretary’s prima facie case. Construction Materials, 23 FMSHRC 321, 327 (March 2001) 

(ALJ). 

B. Significant and Substantial 

A violation is significant and substantial (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 Gypsum 

Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In order to uphold a citation as S&S, the Commission has held that the Secretary of Labor 

must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 

1, 3–4 (Jan. 1984). 

The Commission has held that the second element of the Mathies test addresses the extent 

to which a violation contributes to a particular hazard. Newtown Energy, Inc., 38 FMSHRC 

2033, 2037 (Aug. 2016). Analysis under the second step should thus include the identification of 

the hazard created by the violation and a determination of the likelihood of the occurrence of the 

hazard that the cited standard is intended to prevent. Id. at 2038. At the third step, the Secretary 

must prove there was a reasonable likelihood that the hazard contributed to by the violation will 

cause an injury, not a reasonable likelihood that the violation, itself, will cause injury. West 

Ridge Resources, Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser Eng'g, Inc., 32 

41 FMSHRC Page 344
FMSHRC 1257, 1280–81 (Oct. 2010). Evaluation of the four factors is made assuming continued 

normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). 

C. Negligence and Unwarrantable Failure

Under the Mine Act, operators are held to a high standard of care, and “must be on the 

alert for conditions and practices in the mine that affect the safety or health of miners and to take 

steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d). 

The Mine Act defines reckless disregard as conduct which exhibits the absence of the slightest 

degree of care, high negligence as actual or constructive knowledge of the violative condition 

without mitigating circumstances; moderate negligence as actual or constructive knowledge of 

the violative condition with mitigating circumstances; and low negligence as actual or 

constructive knowledge of the violative condition with considerable mitigating circumstances. 30 

CFR § 100.3: Table X.

The Commission and its judges are not bound to apply the part 100 regulations that 

govern MSHA’s determinations addressing the proposal of civil penalties. Newtown Energy, 

Inc., 38 FMSHRC 2033, 2048 (Aug. 2016), citing Brody Mining, LLC, 37 FMSHRC 1687, 

1701–03 (Aug. 2015). The Commission instead employs a traditional negligence analysis, 

assessing negligence based on whether an operator failed to meet the requisite standard of care. 

Brody, 37 FMSHRC at 1702. In doing so the Commission considers what actions a reasonably 

prudent person familiar with the mining industry, the relevant facts, and the protective purpose of 

the regulation, would have taken under the same circumstances. Id. Commission judges are thus 

not limited to an evaluation of mitigating circumstances but may instead consider the totality of 

the circumstances holistically.” Id.; see also Mach Mining, 809 F.3d 1259, 1264 (D.C. Cir. 

2016).

More serious consequences can be imposed for violations that result from the operator’s 

unwarrantable failure to comply with mandatory health or safety standards under section 104(d) 

of the Mine Act. Section 104(d)(1) states: 

If, upon any inspection of a coal or other mine, an authorized representative of the 

Secretary finds that there has been a violation of any mandatory health 

standard...and if he finds such violation to be caused by an unwarrantable failure 

of such operator to comply with such mandatory health or safety standards, he 

shall include such findings in any citation given to the operator under this Act. 

“Unwarrantable Failure” is defined as aggravated conduct constituting more than 

ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable 

failure is characterized by such conduct as “reckless disregard,” “willful intent,” “indifference,” 

or the “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 

FMSHRC 189, 193-94 (February 1991). 

The Commission considers the following factors when determining the validity of 

104(d)(1) and 104(d)(2) orders: (1) the length of time that the violation has existed and the extent 

of the violative condition, (2) whether the operator has been placed on notice that greater efforts 

41 FMSHRC Page 345
were necessary for compliance, (3) the operator’s efforts in abating the violative condition, (4) 

whether the violation was obvious or posed a high degree of danger and (5) the operator’s 

knowledge of the existence of the violation. Consolidation Coal Co., 22 FMSHRC 340, 353 

(Mar. 2000). All of the relevant facts and circumstances of each case must be examined to 

determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. IO Coal 

Co., 31 FMSHRC 1346, 1351 (Dec. 2009). 

D. 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 (March 1983). 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). These criteria are generally incorporated by the Secretary within a 

standardized penalty calculation that results in a pre-determined penalty amount based on 

assigned penalty points. 30 CFR 100.3: Table 1- Table XIV. If the conditions of the 

violation so warrant, the Secretary may waive the regular assessment under § 100.3(a) 

and specially assess a penalty. 30 C.F.R. § 100.5(a). The special assessment must also be 

based upon the six criteria outlined above, and all findings must be in narrative form. 30 

C.F.R. § 100.5(b).

V. DISPOSITION

The Secretary argues that the Court should affirm both Orders as written. Secretary’s 

Post-Hearing Brief (“Sec’y Br.”) at 1. The Secretary contends that Respondent allowed float coal 

dust to accumulate along the 3B energized conveyor belt. The violation involved in Order 

9106459 was S&S because the float dust accumulations were extensive and were located 

approximately one crosscut, or 35 to 50 feet, from the tail belt area, where Vandergriff also 

issued two separate S&S citations not at issue in this case for accumulations and improperly 

spaced fire suppressor sprinklers during the same inspection. Id. at 3-5, 8-9. The Secretary 

maintains this confluence of factors was thus likely to result in ignition or fire because the 

accumulations were extensive along the beltline and some were even in contact with the moving 

belt. Id. at 8. The Secretary also argues that the high negligence and unwarrantable failure 

determinations are proper because Peabody had previously been placed on notice that greater 

compliance efforts were necessary. Id. at 18, 25. The accumulations were obvious and extensive 

as demonstrated by photos taken by Inspector Vandergriff, existed for multiple shifts, and posed 

a serious risk of danger due to the presence of an ignition source. Id. at 18-23. Peabody managers 

and mine examiners had knowledge of or should have known of the condition yet failed to abate 

41 FMSHRC Page 346
the violative condition. Id. at 23-25. Specifically, when asked by Vandergriff mine examiner 

Brown said he considered the observed condition to be a “hazard” but was instructed by 

management to write it down as a “condition.” Id. at 15. Peabody also has a history of violations 

of the cited standard and was on “heightened negligence” for violations of § 1731(a) which 

requires damaged belt conveyor components that pose a fire hazard to be repaired or replaced 

immediately. Id. at 25. 

The Secretary contends that Peabody violated section 75.363(a) because the mine failed 

to immediately address the accumulations, which constituted a hazard. The Secretary points out 

that, despite the obvious hazard posed by these accumulations, mine examiners continued to 

identify the accumulation as a “condition” in the pre-shift inspection book for the beltline, and 

did not address it for multiple shifts. As such, the Secretary requests that the Court uphold both 

Orders and affirm the specially-assessed penalty of $23,519.00. Id. at 15, 20-21, 31. 

Peabody seeks to have both Orders vacated. It argues that the accumulations around the 

beltline were not combustible coal dust, but rather a combination of rock dust and road dust with 

low amounts of permitted float dust. Respondent’s Post-Hearing Brief (“Resp. Br.”) at 18. 

Respondent contends that it did not violate section 75.400 because it did not permit the cited 

material to accumulate as it consistently detected and corrected any material around the beltline, 

and that the material cited in Order No. 9106459 was not combustible. Id. at 20-21. Even 

assuming that a violation is found, Peabody argues that it was not S&S because no ignition 

source existed near the beltline and the cited material was sufficiently mixed with incombustible 

rock dust and road dust. Id. at 30, 31. Specifically, the conditions relied upon by the Secretary as 

the potential ignition source that led Vandergriff to issue an accumulations citation, not at issue 

in this case, at the 3C beltline ended at cross cut number 29 whereas the condition under 

examination in this matter began at crosscut 28. Id. at 30. Furthermore, Peabody contends that 

the high negligence and unwarrantable failure designations are inappropriate because the mine 

examination records indicate that it adequately detected and corrected any conditions involving 

material along the beltline. Id. at 33-35. In addition, mine examiner Brown emphatically denied 

telling Vandergriff he would have characterized the noted accumulations at issue as “hazards” 

and that he was instructed to write them in his exam book as “conditions”. Id. at 38-39. 

Peabody also argues that Order No. 9106460 should be vacated because the condition 

was non-hazardous and did not need to be immediately corrected. Id. at 33-35, 37. Specifically, 

Respondent argues that the condition listed in the pre-inspection book was different than the one 

the inspector observed the following shift because additional production occurred in the interim. 

Id. at 35-36. It further argues that the observed accumulation did not amount to a “hazard” as 

defined by the standard and did not need to be corrected immediately. It contends that the 

condition was largely incombustible, that its color indicated that the material was primarily road 

dust, and that sufficient rock dust was present. Id. at 24-26, 29, 33-35, 37. Respondent contends 

that it would have addressed the matters the following day shift, which is within MSHA’s 

requirements and company policy. Id. at 33-35. Peabody thus argues that it properly tailored its 

procedure to comply with section 75.363(a) and was taking appropriate steps to ensure that 

accumulations did not become hazards. Id. at 33-35. Finally, Peabody maintains that to the 

degree that any violation is found, the assessed penalties are excessive in that the Secretary has 

not met his burden of proof to justify the specially assessed penalty for Order No. 9106460, the 

41 FMSHRC Page 347
unwarrantable failure designations, high negligence levels nor the S&S findings for either Order 

No. 9106460 or 9106459. If violations are found, it proposes a regularly assessed, moderate 

negligence level, non S&S penalty of $232 for Order No. 9106460 and $477 for Order No. 

9106459. 

A. Order No. 9106459

Order No. 9106459 alleges: 

Combustible materials shall not be allowed to accumulate in active workings. 

Accumulations in the form of float coal dust was observed along the 3 B 

energized conveyor belt ranging from a film up to 1⁄4 inch in depth from XC #3 to 

XC #28. Float coal dust was observed deposited on top of rock dusted surfaces 

including the mine floor, coal ribs, belt structure, water line, and all other vertical 

surfaces. This violation is an unwarrantable failure to comply with a mandatory 

standard. 

Ex. S–2. Inspector Vandergriff designated the violation as S&S, with high negligence, and as 

an unwarrantable failure to comply with a mandatory safety standard. The Secretary assessed 

a penalty of $7,819.00. 

1. The Violation

30 C.F.R. § 75.400 states 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 parties do not dispute that accumulations of material existed in the cited areas. 

Inspector Vandergriff credibly testified that the accumulations measured one quarter to one 

eighth of an inch and were extensive along the entire beltline. Tr. 58, 95-96. He took 

photographs demonstrating accumulations all along the beltline. See Ex. S–5. Relatively dark 

accumulations are present on the ground and across the belt structure. Id., pp. 1-4, 9-12, 15-18. 

Photographs show footprints in the accumulated material along crosscuts 9-10 and crosscut 17. 

Id., pp. 5-8, 21-22. The photographs also indicate some accumulation on the ribs and walkway 

along crosscut 12 to 14. Id., pp. 13-14. 

The parties’ primary dispute is over what materials were present in the accumulation and 

whether that mixture was combustible under the standard. Seilhymer’s pictures and samples 

appear to cast doubt on the exact composition of the accumulations based upon his inclusion of a 

paint chip to demonstrate the varying shades of gray. Ex. R–B; R–G. Many of his photographs 

also show lighter colors of grey or white near and underneath the belt floor and on the ribs. Id., 

pp. 7, 8, 21, 22, 23, 33-34. He testified that the lighter colors indicated that the accumulations 

consisted mostly of road dust and not coal dust. Tr. 162-63. Other pictures also indicated the 

presence of moisture, thereby reducing the combustibility of the accumulations. Ex. R–35, 36, 

80; Tr. 166, 171. Overall, Seilhymer testified that he saw very little evidence, if any, of coal dust 

41 FMSHRC Page 348
accumulations in his photographs. Tr. 210. He also testified that the samples, with the exception 

of a single sample, were all well within the prescribed incombustibility limits. Ex. R–G(2); Tr. 

184-85. However, Seilhymer acknowledged that he was unable to take pictures in the exact same 

areas as Vandergriff because he did so after the initial inspection ended. Tr. 156-57. 

Furthermore, the material’s shading varied significantly in different areas when compared to the 

paint chip, with some photographs showing much darker shades than others. See generally, Ex. 

R–B. Seilhymer also acknowledged that some of the photographs could have been affected by 

the camera flash or the printer. Tr. 199. 

Upon review, I conclude that a sufficient amount of coal dust was present to affirm the 

violation. See Exs. S–5, R–B. The shades of accumulations varied and some showed dark gray 

accumulations, indicating that at least some float coal dust was present in the photographed 

areas. Id. Although some areas appeared lighter in color, the camera flash, which both 

Vandergriff and Seilhymer acknowledged affected the photographs, would tend to make the 

accumulations look lighter in color rather than darker. 

Moreover, Respondent’s samples of the material in the area indicated that at least some 

of the material did not meet MSHA’s incombustibility standards. See Ex. R–G(2).4

 One of the 

samples taken tested less than 80% incombustible, which Respondent acknowledged at hearing 

to be below MSHA’s required threshold. Tr. 185. While the exact concentration may have 

differed throughout the cited area, I find that the evidence supports that Peabody failed to address 

existence of combustible accumulations along the beltline. 

Accordingly, I affirm the fact of violation. 

2. Significant & Substantial 

I have already found that Peabody Midwest violated section 75.400, a mandatory safety 

standard, when it allowed coal dust and other materials to accumulate along the 3-B beltline. The 

first Mathies element is therefore satisfied. 

I next turn to whether the violation was reasonably likely to contribute to the hazard 

contemplated by the standard. Section 75.400 is intended to prevent accumulations of material 

that could lead to an ignition or propagation of a fire or ignition hazard. 30 C.F.R. § 75.400. 

Here, the Secretary has demonstrated that a confluence of factors exists around the violation that 

would reasonably contribute to the contemplated hazard. Earlier in the inspection, Vandergriff 

4

 The Secretary cites to the Commission’s decisions in Black Diamond Coal Mining Co., 

7 FMSHRC 1117 (Aug. 1985) and Mid-Continent Resources, Inc., 16 FMSHRC 1218 (June 

1994) to argue that Peabody’s sample analyses (Ex. R–G(2)) are irrelevant and thus 

inadmissible. I reject the Secretary’s claim. Although these cases do imply that a material need 

not have a high level of combustibility to qualify as S&S, they do not suggest that combustibility 

in itself is irrelevant. See 16 FMSHRC at 1222; 7 FMSHRC at 1120-21. Both cited provisions 

either explicitly mention combustibility or require a consideration of combustibility to determine 

whether a condition is hazardous, and are thus clearly relevant to the sample tests and are 

admitted into evidence. 

41 FMSHRC Page 349
issued citations alleging accumulations and Peabody’s failure to install fire suppression 

sprinklers within the prescribed intervals along the conveyor branch lines located along the 3C 

beltline which is adjacent to the 3B. See Ex. S–8, S–9. Both of those citations were S&S because 

coal was running in the belt, creating an ignition source near the beltline. Tr. 113-114. He also 

testified that the mine was already on heightened negligence for bad belt rollers, increasing the 

opportunity for friction to create a heat source and ignite the accumulations. Tr. 66-67. 

Furthermore, he took two additional photographs that show the accumulations near the diesel 

fuel station and touching the belt on the 3-B tail roller. Ex. S–5, pp. 31-34; Tr. 113-14. The 

violation involved in Order 9106459 is located approximately one crosscut, or 35 to 50 feet, 

from this tail belt area ignition source. The accumulations were on the tail roller of the 3-B, the 

head roller of the 3C. Tr. 67. It is important to note here that Respondent’s mine examiner Brown 

was not present for and was unaware of the issuance of the citations issued by Inspector 

Vandergriff on the 3C beltline, thus explaining his insistence that an ignition source did not exist 

along the 3B beltline at issue in this case. Tr. 271. Finally, I credit Inspector Vandergriff’s 

testimony that he believed the violations he found on the 3C beltline had co-existed for two to 

three shifts with those on the 3B beltline. Tr. 67-68. My evaluation here also must take into 

account an assumption of continued mining operations absent the inspector discovering the 

hazardous conditions on the 3C beltline. For these reasons, I reject Respondent’s argument that 

the violations found on the 3C beltline were abated by the time the inspector discovered the 

accumulations at issue in this case along the 3B beltline, thus eliminating the potential ignition 

source. Given the size of the accumulations along the 3B beltline and potential presence of a heat 

source in the area, I find that the violation was reasonably likely to result in an ignition. 

Peabody contends that the violation was not reasonably likely to contribute to an ignition 

or fire because the majority of the cited accumulations consisted of road dust or rock dust and 

thus were unlikely to combust. Resp. Br. at 18-19, 24-26, 29, 33-35, 37. It offered sample 

analyses taken from the cited areas to show that nearly all of the alleged accumulations were 

above the acceptable incombustible level. Ex. R–G(2). However, at least one of those samples 

did not meet the minimum incombustibility level, and although the level of combustibility may 

have been low, “coal is, by its nature, combustible.” Mid-Continent Res., 16 FMSHRC 1218, 

1222 (June 1994). The Secretary has satisfied the second Mathies element. 

I credit Vandergriff’s testimony that the hazard was reasonably likely to result in serious 

injuries such as flash burns or smoke inhalation. Tr. 70. Vandergriff testified that float coal dust 

was allowed to accumulate in numerous areas, including under the B belt tail roller, where the 

accumulations were in contact with the moving belt. Tr. 65. Since the fire suppression system 

would not be able to put the fire out and air ventilates outby in the mine, any fire would likely 

proceed along the 3-B belt line, the same path that served as the secondary escape way. Tr. 67, 

Sec’y Br. At 14-15. Due to the ventilation system in the area, an ignition may cause smoke 

inhalation injuries to any miner working downwind. Tr. 70. Assuming continuous normal mining 

operations, these accumulations were reasonably likely to result in an ignition that could cause 

flash burns and smoke inhalation injuries that would result in lost workdays. 

Accordingly, I find that the violation was S&S.

41 FMSHRC Page 350
3. Negligence and Unwarrantable Failure

Inspector Vandergriff designated the citation as high negligence and an unwarrantable

failure. The Commission has recognized the close relationship between a finding of high 

negligence and a finding of unwarrantable failure. See Dominion Coal Corp., 35 FMSHRC 1652, 

1663 (June 2013) (ALJ), citing San Juan Coal Co., 29 FMSHRC 125, 139 (Mar. 2007). 

a. Operator’s Knowledge of the Violation

An operator’s knowledge of a violation is an important factor in unwarrantable failure 

analysis and is a requirement for a finding of high negligence under 30 C.F.R. § 100.3. Maryan 

Mining, LLC, 37 FMSHRC 1715, 1723 (Aug. 2015) (ALJ). Where an agent of an operator has 

knowledge or should have known of a safety violation, such knowledge should be attributed to 

the operator. Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000). The knowledge or 

negligence of an agent may be imputed to the operator. Id. 

Due to the extensiveness of the violation and the fact that mine management was required 

to sign the pre-inspection book, the Secretary argues that Peabody should have been aware that 

the accumulations constituted a hazard. Tr. 71. Vandergriff testified that the condition along 3-B 

was so obvious that any properly trained miner would identify that as a hazard that required 

immediate correction. Tr. 71-72. 

Peabody was aware of the accumulations. Its examiners wrote about the accumulations in 

the belt line pre-inspection book. Exs. S–6, S–7. Those examiners, however, did not believe that 

the accumulations consisted of much float coal dust, if any, or that the accumulation was 

otherwise so severe or hazardous that it required immediate attention. The inspection books thus 

recommended brooming5

 or dusting the accumulations when possible. Exs. S–6, S–7. 

b. Extent and Duration of the Violation

Inspector Vandergriff testified that the accumulations were extensive all along the belt 

line. Tr. 71. He took numerous pictures that clearly show accumulations in multiple areas. Ex. S–

5. Moreover, the violation existed for two to three shifts and was extensive along the beltline.6

Tr. 63. However, the extensiveness and duration can both be attributed to Peabody’s consistent

belief that the accumulations were not combustible because they consisted primarily of road dust,

and thus did not require immediate remediation.

5

 Brooming is a method, alternative to dusting, by which miners use a broom to 

sufficiently mix any coal dust accumulations with rock dust to eliminate a combustion hazard. 

Tr. 40-41. 

6

 Although Vandergriff’s inspection notes indicate that the condition existed for five 

shifts, he clarified that the fifth shift included Brown’s examination shift and that the mine would 

have been idle for two of the shifts. Tr. 115. 

41 FMSHRC Page 351
c. Obviousness of the Hazard and Degree of Danger

As discussed above, the accumulations were obvious along the beltline but were not 

perceived to be a hazard during Peabody’s pre-shift examinations. Peabody’s miners credibly 

testified that in instances where a hazard was observed they would have immediately addressed 

the matter rather than writing it down in the book to pass it on for the next shift to address. Tr. 

219, 253. Their testimony is supported by the pre-inspection books. See Ex. S–6. Listed hazards 

were addressed, while conditions, including those cited here, were noted and passed on as 

permitted by the regulations and mine policy. Id. Thus, while the accumulations themselves were 

obvious, the compositions of the accumulations remain the primary source of dispute between 

the parties. Given these factors, I find that the obviousness of the hazard and degree of danger 

were not significant factors weighing against Peabody’s negligence. 

d. Abatement Efforts

Abatement efforts relevant to the unwarrantable failure analysis are those made prior to 

the issuance of the citation or order. Consolidation Coal Co., 35 FMSHRC 2326, 2342-43 (Aug. 

2013); New Warwick Mining Co., 18 FMSHRC 1568, 1574 (Sept. 1996). 

Peabody’s pre-inspection books and the corroborating testimony of its miners 

demonstrate a systematic approach to examining the beltline and both documenting and 

addressing conditions and hazards. Vandergriff testified that the accumulations were extensive 

enough to suggest that it could not have accumulated over the course of a single shift. Tr. 114-

15. However, there is no evidence to suggest that Peabody’s abatement efforts were insufficient

or that, if not for the citation, the conditions would have been allowed to remain or worsen over a

long period of time. Peabody’s inspectors outlined the action to be taken in their view, either

dusting or brooming the areas, that would likely have been taken care of shortly thereafter and

before the mine considered the accumulations to become a serious hazard.

e. Notice to the Operator that Greater Efforts Were Necessary for Compliance

The notice factor of the unwarrantable failure analysis pertains to previous citations, 

directives, and communications prior to the violation at issue that notify the operator of 

hazardous conditions or practices. Consolidation Coal Co., 22 FMSHRC 2326, 2342 (Aug. 

2013); IO Coal Co., 31 FMSHRC 1346, 1353-55 (Dec. 2009). 

Here, Peabody had been cited for violations of § 75.400 on 146 occasions over the past 

two years. Ex. S–1. It was also placed on heightened negligence regarding bad belt rollers, 

suggesting that accumulations may be more subject to ignition risks. Tr. 24, 65-66. However, 

Inspector Vandergriff acknowledged at hearing that section 75.400 is a very broad standard, and 

can be used to cite for conditions other than float coal dust accumulations in the mine, including 

but not limited to other combustible materials, hydraulic oil, and trash. Tr. 106-107. He also 

testified that he did not observe any bad rollers along the 3-B beltline during the inspection at 

issue. Tr. 72. 

41 FMSHRC Page 352
f. Conclusion

Based on the foregoing, I find that the violation did not constitute an unwarrantable 

failure to comply with the standard. Although Peabody had knowledge of the accumulations, 

which were obvious and extensive along the beltline, I do not find sufficient evidence that the 

mine’s efforts were unreasonable or constituted more than ordinary negligence. Peabody 

recorded the condition in its pre-inspection book for the beltline as something that ought to be 

addressed when time permitted, but that it did not amount to a hazard. It systematically 

addressed the matters according to its examination schedule, and there is no evidence that the 

accumulations would have been ignored for significantly more shifts. There is no evidence that 

Peabody knowingly ignored a hazard or would have done so if it believed the accumulations to 

constitute a hazard. “If an operator acted on the good-faith belief that its cited conduct was 

actually in compliance with applicable law, and that belief was objectively reasonable under the 

circumstances, the operator’s conduct will not be considered to be the result of unwarrantable 

failure when it is later determined that the operator’s belief was in error.” Kelly Creek Res., Inc., 

19 FMSHRC 457, 463 (Mar. 1997); Black Beauty Coal Co., 36 FMSHRC 778, 788-89 (Mar. 

2014) (ALJ). I therefore find that the unwarrantable failure designation is inappropriate in this 

circumstance. 

I therefore reduce Peabody’s negligence to moderate and remove the unwarrantable 

failure designation. 

4. Penalty

The Secretary proposed a penalty of $7,819.00. Peabody has had 146 previous violations

of section 75.400 over the past two years. Ex. S–1. The parties stipulated that the penalty amount 

will not affect Peabody’s ability to remain in business. Jt. Stip. # 7. Peabody quickly abated the 

citation by shutting down the belt line and rock dusting the entire 3-B beltline, removing all float 

coal dust following the mine’s own investigation. Ex. S–2. 

I have discussed my gravity and negligence findings in detail above. Peabody violated the 

standard and the violation was S&S and reasonably likely to result in lost workdays. I modified 

Peabody’s negligence to moderate and removed the unwarrantable failure designation because 

there is no evidence indicating that Peabody had a lax attitude toward addressing accumulations 

that it deemed to be hazardous, but simply did not consider the cited accumulations to merit 

immediate action. Accordingly, I assess a penalty of $2,500.00.

B. Order No. 9106460

Vandergriff issued Order No. 9106460 alleging: 

Hazardous conditions shall be corrected immediately or the area shall remain 

posted until the hazardous condition is corrected. Hazardous conditions have 

existed on the 3B beltline for 5 consecutive shifts. These hazards have been listed 

in the “conditions observed” side of the company’s belt inspection report book 

and have been continually carried over onto the next working shift without an 

41 FMSHRC Page 353
action taken to immediately correct the hazards found. This is an unwarrantable 

failure to comply with a mandatory safety standard... 

Ex. S-3. Inspector Vandergriff designated the violation as S&S, the result of high negligence, 

and as an unwarrantable failure. The Secretary specially assessed a penalty of $15,700.00. 

1. Fact of Violation

30 C.F.R. § 75.363(a) states:

Any hazardous condition found by the mine foreman or equivalent mine official,

assistant mine foreman or equivalent mine official, or other certified persons

designated by the operator for the purposes of conducting examinations under this

subpart D, shall be posted with a conspicuous danger sign where anyone entering

the areas would pass. A hazardous condition shall be corrected immediately or the

area shall remain posted until the hazardous condition is corrected. If the

condition creates an imminent danger, everyone except those persons referred to

in section 104(c) of the Act shall be withdrawn from the area affected to a safe

area until the hazardous condition is corrected. Only persons designated by the

operator to correct or evaluate the hazardous condition may enter the posted area.

Any violation of a mandatory health or safety standard found during a preshift,

supplement, on-shift, or weekly examination shall be corrected.

In order to establish a violation, the Secretary must demonstrate that hazardous

conditions existed and that the hazard had not been corrected or posted. Black Beauty Coal Co., 

33 FMSHRC 1504, 1511 (June 2011) (ALJ). Once the existence of a hazard has been 

established, the focus shifts to the actions taken, if any, to remediate the condition. Id. There is 

no dispute that Peabody’s examiners found the condition and recorded it in the belt inspection 

report book as such. Thus, the validity of the Order rests on whether the accumulations along the 

beltline constituted a “hazardous condition” as identified by the standard. 

The Commission has approved the definition of “hazard” in the context of section 75.360 

to be “a possible source of peril, danger, duress, or difficulty,” or “a condition that tends to create 

or increase the possibility of loss.” Black Beauty Coal Co., 36 FMSHRC 778, 786 (Mar. 2014) 

(ALJ) (citing Enlow Fork Mining Co., 19 FMSHRC 5, 14 (Jan. 1997)). That definition is equally 

applicable here. 

Vandergriff believed the accumulations constituted a hazard because they were extensive 

along the entire beltline and created an ignition risk. Tr. 73-74. He noted that the conditions had 

been allowed to worsen over a couple of shifts, when they should have been immediately 

addressed. Tr. 74. Seilhymer testified that an ignition source was not required in order for an 

accumulation to be a hazard, but it would escalate the situation to that of a hazard if an ignition 

or heat source was present. Tr. 194, 207. He noted that a hazard would entail a high 

concentration of coal dust dark in color. Tr. 194. If the accumulation reached a certain amount 

and shade of darkness, an examiner would appropriately understand when immediate action was 

necessary. Tr. 194-95. However, he acknowledged that this may differ based on the individual 

41 FMSHRC Page 354
examiner. Tr. 195. Normally, however, the goal is to address the condition long before it 

escalates to a hazard. Tr. 195. He testified that he did not believe any of the accumulations 

amount to a “hazard” as contemplated by the examination standards. Tr. 208. 

Miner Casey Winters testified that a hazard is a condition that requires immediate 

attention, while a condition is not time sensitive. Tr. 221. In the context of an accumulation, 

Winters testified that he believed the transforming factor would be a heat or ignition source. Tr. 

222. He noted that he would not have called any of the cited accumulations a hazard. Tr. 234-42.

However, after seeing photographs of an accumulation, he testified that he would have at the

very least shoveled it out and if need be shut the belt down to do so safely. Ex. S–5; Tr. 230-31.

Respondent’s Mine Examiner Brown also confirmed that in the context of an accumulation near

the beltline, a heat source was necessary to constitute a hazard. Tr. 254. At no point during his

examination did he believe there to be an ignition source or any hazard along the belt line. Tr.

267. However, he was unaware of the citations issued by Vandergriff along the 3C beltline

immediately prior to inspecting the 3B beltline. Tr. 271. He noted that he would be able to tell if

coal dust accumulated because it is coarse and does not mix with rock dust. Tr. 268-69.

Although I found that the accumulations were reasonably likely to create a hazard, they 

did not amount to such a level at the time of the inspection. The Secretary has not shown that any 

of the accumulations created a potential for immediate danger. Although some photographs 

showed evidence of coal dust in accumulations of material, Respondent provided strong 

evidence that most of these accumulations were mixtures of road and rock dust that neutralized 

any presence of coal dust. It is critical to note that the Secretary failed to address Respondent’s 

evidence on this point in their case in chief or by proffering any rebuttal on this issue. None of 

the photographs offered by either party indicate significant evidence of large amounts of coal 

dust. This assertion is supported by the majority of Peabody’s samples, which were well above 

the minimal incombustibility level. Ex. R–G. 

Furthermore, Peabody’s examination books show that, it consistently noted ongoing 

accumulations issues and corrected them as necessary. I find that Brown credibly testified in an 

unwavering, forthright and consistent manner, supported by his essentially contemporaneous 

notes, that he did not consider any of the conditions to be a hazard and the specific reasons for 

that belief, contrary to Inspector Vandergriff’s notes, and would have immediately addressed the 

matter had he believed otherwise. Ex. S-10. Vandergriff testified that Brown told him he was 

instructed to note the accumulations at issue as conditions in his examination book even when he 

believed they were hazards. However, Vandergriff’s own notes do not reflect that is what Brown 

told him. Rather the notes merely indicate that when asked if Brown considered the 

accumulations to be a hazard or condition he said, “that he considers this a hazard but is told it is 

a condition.” Ex. S-4, 47-48. I find it implausible to believe, given his testimony, that 

Vandergriff would not have specifically noted had Brown actually told him he was instructed to 

write conditions in the book when he found hazards. Brown, on the other hand, in an earnest and 

convincing fashion testified that had he found the accumulations hazardous, he would not have 

noted them in his exam book for the next shift to address, but rather immediately addressed 

them. Tr. 264. 

41 FMSHRC Page 355
This credibility dispute, while important, does not take away from the fact that the 

Secretary failed to rebut Respondent’s primary defense that the observed accumulations along 

the 3B beltline were made up of primarily road dust from the adjacent travelway and rock dust 

with smaller non-combustible levels of coal dust, constituting a condition rather than a hazard. 

This, in conjunction with the totality of the evidence and testimony proffered and noted above, 

leads me to conclude that at the time of the pre-shift examination what Brown observed were in 

fact conditions rather than hazards which did not require immediate attention but needed to be 

addressed in a timely fashion at the end or beginning of the respective shifts. 

Accordingly, Order No. 9106460 is VACATED. For these reasons, I need not address 

the Secretary’s S&S, high negligence, and unwarrantable failure designations.

VI. ORDER

Respondent is hereby ORDERED to pay the Secretary of Labor the total sum of 

$2,500.00 within 30 days of this order.7

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (U.S. Certified First Class Mail) 

Barbara M. Villalobos, U.S. Department of Labor, Office of the Solicitor , 230 S. Dearborn 

Street, Room 844, Chicago, IL 60604 

Arthur M. Wolfson, Fisher & Phillips LLP, One Oxford Center, 301 Grant Street, Suite 4300, 

Pittsburgh, PA 15219 

7

 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390 

41 FMSHRC Page 356
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

PHONE: (202) 434-9933 | FAX: (202) 434-9949 

June 27, 2019 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

CONSOL PENNSYLVANIA COAL 

COMPANY, LLC, 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 2018-0116 

A.C. No. 36-10045-453471

Mine: Harvey Mine 

Respondent. 

DECISION AND ORDER 

Appearances: Maria Del Pilar Castillo, Esq., Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania for the Petitioner 

Patrick Wayne Dennison, Esq., Fisher Phillips LLP, Pittsburgh, Pennsylvania for 

the Respondent 

Kenneth Polka, CLR, U.S. Department of Labor, MSHA, Mount Pleasant, 

Pennsylvania 

Before: Judge William B. Moran 

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

Section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 

815(d) for failure to keep travelways clear of obstruction, in violation of 30 C.F.R. § 75.205(b). 

A hearing was held in Pittsburgh, Pennsylvania on February 12, 2019. The Secretary of Labor 

(“Secretary”) proposes a $625.00 penalty for the issues in this matter. For the reasons that 

follow, the Court upholds the violation, but modifies the citation in part and imposes a penalty of 

$200.00 to Consol Pennsylvania Coal Company, LLC (“Respondent”). 

41 FMSHRC Page 357
Violations at Issue in Docket No. PENN 2018-0116 

At issue in Docket No. PENN 2018-0116 is one 104(a) citation,1 Citation No. 9076875. 

Citation No. 9076875 alleged a violation of 30 C.F.R. 77.205(b).2 The MSHA inspector 

assessed the likelihood of injury as “reasonably likely,” with an expected injury of “lost 

workdays or restricted duty.” The violation was listed as significant and substantial, with one 

person affected. Negligence was listed as “moderate.” The condition or practice alleged stated: 

Travelways and platforms or other means of access to areas where persons are 

required to travel or work, shall be kept clear of all extraneous material and other 

stumbling or slipping hazards. On the slope belt near the mouth there were 

multiple tripping/slipping hazards on the elevated graded walkway. There was a 

1.5" wash down hose on the steps and a 64" roller and coal spillage at the top of 

the stairs. It was raining during my inspection which limits visibility and traction. 

This belt is firebossed every shift in its entirety. 

Standard 77.205(b) was cited 3 times in two years at mine 3610045 (1 to the 

operator, 2 to a contractor). 

Citation No. 9076875. 

The citation was issued at 10:58 AM on October 23, 2017. The citation was terminated 

seven minutes later, at 11:05 AM that same day, with the notation that “[t]he hazards were 

removed from the walkway.” Id. 

Joint Stipulations & Findings of Fact 

The Secretary submitted a post-hearing brief (“Secretary’s Brief”) on April 19, 2019, as 

did the Respondent (“Respondent’s Brief”). The parties stipulated that the Harvey Mine was a 

“mine” within the meaning of the Mine Act, and subject to the jurisdiction of MSHA under the 

Mine Act. Secretary’s Brief at 2. 

The Secretary and Respondent agreed that a violation of 30 C.F.R. § 77.205(b) as 

described in Citation No. 9076875 occurred. Tr. 20. The parties also stipulated that the expected 

injury in this matter was Lost Workdays or Restricted Duty. Tr. 62-63. However, the Secretary 

1

 A separate citation – Citation No. 7031476 – was originally part of this docket. 

However, that citation was issued 20 days prior to Citation No. 9076875, involved a different 

inspector, and was resolved by a separate Decision Approving Settlement which is being issued 

contemporaneously with this decision. See Decision Approving Settlement, PENN 2018-0116 

(unpub. order) (June 27, 2019). 

2 30 C.F.R. § 77.205, titled “Travelways at Surface Installations” provides in subsection 

(b), “[t]ravelways and platforms or other means of access to areas where persons are required to 

travel or work, shall be kept clear of all extraneous material and other stumbling or slipping 

hazards.” 

41 FMSHRC Page 358
argued that the injury was reasonably likely, Tr. 19, while the Respondent contended that the 

expected injury was unlikely. Tr. 12. The Secretary also argued that the violation was significant 

and substantial, Secretary’s Brief at 5, while the Respondent countered that the violation was not 

significant and substantial. Respondent’s Brief at 8. 

Testimony of MSHA Inspector Lawrence Piko 

MSHA Inspector Lawrence Piko was the Secretary’s sole witness in this matter, and 

testified first. Piko has been an inspector with MSHA for the past four years. Tr. 24. Before his 

time at MSHA, Piko worked five years for Consol Energy at their Bailey Mine.3

 Tr. 25. 

Piko received MSHA’s mandatory 22-week inspector training, and received what he referred to 

as “blur training,” which he described as MSHA’s attempt to combine training for metal, nonmetal, and coal miners into a single course. Tr. 25-26. 

On October 23, 2017, Inspector Piko arrived at the Harvey Mine to conduct an EO1 

inspection, which covers “every part of the mine, surface and underground.” Tr. 27. On that 

particular day, Piko covered the surface of the mine. Id. Upon his arrival at the mine, Piko went 

to the shop area, where he met Respondent’s employee Matt West. As none of the Respondent’s 

safety representatives volunteered to travel with Piko, West accompanied the inspector for his 

surface inspection. Tr. 29. Piko first reviewed the mine file, looking for prior accidents and 

citations logged in the file before conducting the surface inspection. Piko testified that there had 

been six accidents “involving something similar to this citation.” at the mine. Tr. 30. 

After reviewing the mine file, Piko went to the long belt identified in the photo labelled 

Joint Ex. J-1. Tr. 36. After walking the long belt, Piko and West went to the top of the silos 

indicated in J-1 to inspect for a variety of safety hazards, such as methane concentrations and 

faulty electrical wiring. Tr. 37.4 No such violations were found. Piko and West then returned to 

the transfer building, made their way to the top, and began walking down the slope belt. Id. Piko 

asserted that there were five different tripping hazards in this portion of the slope belt: a roller, a 

plastic bag, a water hose, and some accumulations of coal. Tr. 46. He estimated the roller was 

approximately 64 inches in length. Id. At the hearing, Piko marked on Ex. J-1 with a red pen 

indicating where the hazards identified in Citation No. 9076875 were on the slope belt. Tr. 39. 

Piko took a photo of the area that was later admitted at hearing as Ex. P-2. 

At that point, Inspector Piko decided to write a citation for a violation of the travelway 

obstruction standard: 30 C.F.R. § 75.202(b). Tr. 45. He said he considered writing the negligence 

for this citation as “high” rather than “moderate,” because West informed him that “a certified 

individual, fireboss or mine examiner” was in that area “a few hours before.” This meant 

3

 That mine is not the subject of this hearing. 

4 At this point in his testimony, Piko indicated that he issued a citation for tripping 

hazards at the top of the silos. Tr. 37. That citation is not a part of this docket. 

41 FMSHRC Page 359
“[s]omeone had to have seen that [the alleged tripping hazards] or at least walked away.”5

 Tr. 48. 

He indicated in his notes that West informed him the area was firebossed6 between 5:00 AM and 

8:00 AM that morning. Ex. P-1, at 11.7 Piko then testified that the cited walkway is the only 

walkway on that particular belt, meaning that any individual travelling this belt would have to 

use this walkway. Tr. 51. The inspector made this distinction because the other belt depicted in 

Ex. J-1 has walkways on both sides of the belt. Id. 

Inspector Piko next stated that he served the citation to West, as West was the individual 

travelling with him on that particular day. Tr. 51. According to Piko, West stated that 

independent contractors employed by GMS8

 worked there, though he was unsure exactly how 

many. Tr. 52. He testified that West did not contest the citation as the inspector wrote it, and that 

he recalled that Matt West “even shook his head in disappointment that stuff like this was left” 

on the walkway. Tr. 52-53. The inspector then testified that West immediately began abating the 

citation. Tr. 53. Piko did not walk through the area himself, noting that “it would be pretty hard 

to make it an S&S if you’re going to walk through a hazard.” Id. The inspector testified that he 

gave West “roughly 15 minutes” to abate the citation, which he also described as “more than 

enough time.” Tr. 53. West abated the citation in seven minutes. Tr. 102. 

Next, Piko testified that he took the pictures marked as Ex. P-2 concurrently with the 

issuance of the citation. Tr. 54. He testified that “it was a rainy day” on the day of the inspection, 

which was relevant to the citation because “it diminishes your visibility. You’re dealing with wet 

conditions on metal, on rubber, on plastic, on coal making it easier to slip and fall, and even if 

you try to catch yourself because you’re dealing with wet metal.” Tr. 54. 

The inspector estimated the width of the elevated walkway as approximately three and a half 

feet. Tr. 56. He also noted that, while it was “not unusual” to encounter rollers placed in a 

walkway, the rollers were usually “against the side, not right in the middle. This one is hanging 

out in the middle mainly because that conduit takes up a lot of room.” Tr. 57. The inspector 

estimated the roller was 64-inches long and weighed “at least 50 pounds, if not more.” Tr. 58. 

Inspector Piko expressed that the most likely injury would occur when the miner tripped 

or slipped over the various hazards previously described. In addition to tripping or slipping, the 

inspector suggested that a miner could injure him or herself while attempting to grab onto 

5 Though the transcript states that Inspector Piko testified that a fireboss “had to have 

seen that or at least walked away,” (emphasis added), it appears to the Court that the inspector

meant “someone had to have seen that or at least walked that way,” which would be consistent 

with explaining his decision to write the citation with “moderate” negligence. 

6 “Firebossing” as described by Piko is when a fireboss – a supervisory position at the 

mine – walks a certain area looking for fire hazards. See Tr. 49. 

7 Inspector Piko stated that this statement was written on Page 10 of his inspector’s notes, 

which is page 11 of the exhibit. 

8 Respondent later specifies in its post-hearing brief that “GMS” refers to contractors 

from GMS Mine Repair. See Respondent’s Brief at 2. 

41 FMSHRC Page 360
something while stumbling. Tr. 63. From this, the inspector concluded that the injury expected 

should be marked as “lost workdays or restricted duty” on the citation. 

 During cross-examination by the Respondent, the inspector acknowledged that he 

arrived at the mine at 7:30 AM, which was a half-hour ahead of when the day shift begins. 

Tr. 70. The inspector estimated that it took him and West approximately an hour to an hour and a 

half to travel from the shop area to the belts. Tr. 71. 

The inspector next acknowledged that a citation issued under 30 C.F.R. § 77.205(b) – as 

cited in this matter – can be designated as non-significant and substantial by an inspector, and 

that Inspector Piko had previously issued a non-significant and substantial citation for a violation 

of the aforementioned standard on the very inspection at issue in these proceedings. Tr. 73-74. 

When asked about how mine operators keep outdoor walkways clear such as the one at issue in 

this matter, Inspector Piko stated that typically the operator would use a hose to spray down the 

walkway with water. Tr. 77. Inspector Piko also testified that spraying the walkway down with 

water would be a standard part of maintaining the walkway, and that, at the time of the year 

when the inspection was conducted (late-October), it would not have been cold enough to 

warrant removing the hose from the walkway area when not in use. Tr. 79. The Court surmises 

from this testimony that the inspector does not believe that the mere presence of the hose in the 

walkway area constitutes a violation of the standard, but the manner in which the hose is stored 

might constitute a violation. 

Upon further cross-examination, Inspector Piko admitted that it would not be unusual to 

find coal accumulations around a slope belt, and that when spraying down a walkway, the 

operator’s employees would spray in a specific direction to make sure the coal consistently went 

in one direction. Tr. 83. He also admitted that, although he spoke with West and GMS 

Employees about who might have placed the roller in the walkway, nobody was able to tell him 

who last handled the roller or when it might have been placed in the walkway. Tr. 86-87. 

The inspector also acknowledged that, at some point when walking up the walkway, a miner 

would be “eye level” with the hose lying in the walkway. Tr. 90-91 and Ex. P 2. When asked by 

the Court, Piko was also unable to recall how West removed the coal accumulation or the roller 

in the seven minutes it took him to abate the violation. Tr. 106. 

On redirect examination, Inspector Piko stated that he had conducted approximately “50 

to 60” inspections between the inspection in this matter and the hearing, suggesting that it would 

be difficult to remember details from any individual inspection, such as how it was abated. 

Tr. 108. The inspector also indicated that, had the roller, the plastic bag, and the coal 

accumulations not been present, he would not have issued a citation for a violation of 30 C.F.R. 

§ 77.205(b) simply for the presence of the hose in the walkway. Tr. 110.

When re-crossed, Inspector Piko engaged in a colloquy with the Court over why Piko 

described the roller as “in the middle” of the walkway. Piko acknowledged that the roller was not 

exactly in the middle of the walkway, and from looking at Ex. P-2, “[t]here’s not another half of 

the walkway to the right of the roller,” but rather, only a few inches. Tr. 116. Piko also stated 

that, had the roller been the only object in the walkway at the time of inspection, he still would 

have issued a citation for a violation of 30 C.F.R. § 77.205(b). Tr. 118. Instead, he explained that 

41 FMSHRC Page 361
he referred to it as “in the middle” of the walkway because there was grating from the walkway 

on both sides of the roller, and that the roller was not “off to the side.” Tr. 120. 

Testimony of Consol Pennsylvania Employee Matt West 

After Piko testified, the Secretary rested. The Respondent called one witness to testify: 

Matt West. West is a Consol Energy employee who worked at Harvey Mine dating back to 2008. 

Tr. 126. In his time with the operator, West has worked as a roof bolter, shuttle car operator, and 

a mechanic/electrician. Id. At the time of the hearing, West was a mechanic/electrician, and had 

a federal electrician card since 2009, which requires at least 1,000 hours of supervised work 

under a qualified electrician and an 80-hour class. Tr. 127. West has worked aboveground for the 

operator for the past four years. Id. His job responsibilities as an aboveground electrician are “to 

repair any equipment, mobile equipment on the surface, as well as underground equipment, fan 

checks, elevator checks, basically repair anything on the surface.” Tr. 128. West testified that he 

escorts MSHA inspectors on a regular basis as part of his job responsibilities. Tr. 129. 

On October 23, 2017, West traveled with MSHA Inspector Piko on the aboveground 

inspection described in the inspector’s testimony. Tr. 130. West stated that the walkway 

photographed in J-1 was used primarily by GMS employees who were responsible for 

maintaining the belt. Their responsibilities included “changing rollers, hosing, basically anything 

as far as keeping the belt clean.” Tr. 139. He also testified that the GMS contractors are 

“supposed to maintain the walkways, as well as underneath the belt rollers.” According to West, 

GMS contractors primarily maintain the walkways and belt by hosing it down to remove excess 

coal accumulations. Id. 

West testified that the belt is examined by a fireboss “every shift,” though West could not 

definitively say whether the belt was examined on the day of the inspection. Tr. 142-143. 

According to West, had the belt been examined by a fireboss on the day of the inspection, it 

would have occurred on the midnight shift “between 5:00 a.m. and 8:00 a.m.” Tr. 143. 

West further testified that GMS contractors do not start their day-shift until 8:00 a.m. Tr. 144. 

West told the Court that, when Piko issued the citation, there was coal, a roller, and a hose 

“balled up” in the walkway. Id. 

When asked by Respondent’s counsel why a roller would be on the walkway, West said 

that they are typically “spotted” on a production shift, or in ordinary parlance, placed near a 

location on the belt where a roller needs to be replaced. Tr. 149. West stated that it is not unusual 

for a roller to be placed on the walkway in the manner depicted in Ex. P-2 when a roller on the 

belt is going to be changed out of the belt. Id. At the time the photo in Ex. P-2 was taken, West 

testified that he had no difficulty spotting the roller in the walkway. Tr. 150. West did not 

“express [his] agreement or disagreement with the inspector” as to the Citation, as he testified 

that he felt “it’s my job if a citation is issued to correct the situation and make it safe at that 

point.” Tr. 152. West testified that he terminated the citation by rolling the hose up and placing it 

clear off to the side of the belt and picked up the roller and carried it down the steps. West did 

not remove the coal accumulations identified by Piko in Ex. P-2. Tr. 154-156. Neither the coal 

accumulation nor the plastic bag were required to be addressed for the citation to be terminated. 

41 FMSHRC Page 362
Thus, West did two things to abate the citation; he moved the location of the water hose and the 

roller. 

On cross-examination, West agreed with the Secretary’s counsel that the hose on the belt 

was potentially a tripping hazard. Tr. 158. West also stated that it was his understanding that 

GMS contractors are responsible for maintaining the walkway on a regular basis. Tr. 163. 

West acknowledged he did not remove the plastic bag identified in Ex. P-2 while abating the 

citation. Tr. 164. While West could not definitively answer one way or another, West did say that 

he had no reason to believe the area had not been firebossed at some point between 5:00 and 8:00 

a.m., as he stated to the inspector. Tr. 165. Finally, West agreed that he had not taken notes

during the inspection, and that he had not read the portion of the citation where Piko stated that it

had been raining that day. Tr. 166, 169.

Re-direct examination of West then commenced. West testified that the hose discussed 

earlier would be conspicuous to employees walking from the transfer house to the cited area. Tr. 

175. He added that even were an employee to approach the walkway from the opposite direction,

the yellow color of the hose would cause it to “stand out” and be seen. Tr. 176.

When asked about the weather on the date of the inspection, West stated that even if it had been

raining on that day, it would not make the belt walkway any less safe, because the walkway had

a significant amount of expanded metal9

 which aids with traction. Tr. 178.

The Court had a brief discussion with West before the Secretary’s counsel completed recross. The Court asked West if anyone from the Respondent had instructed him not to challenge 

the inspector. West stated that it was not a company directive but rather personal practice to not 

challenge the inspector during an inspection. On re-cross West testified that he did not feel 

intimidated by Piko and that, had he wanted to address Piko’s decision to issue a citation, he 

could have. Tr. 180, 181. After this exchange, the Secretary rested, and with no other questions 

from Respondent’s counsel, West was excused. After ensuring that all copies of the admitted 

exhibits had been identically marked by the witnesses, the hearing concluded. 

Principles of Law 

In all cases where an operator contests a violation, the Secretary must prove, by a 

preponderance of the evidence, that a violation occurred. RAG Cumberland Res. Corp., 22 

FMSHRC 1066, 1070 (Sept. 2000), citing Consolidation Coal Co., 11 FMSHRC 966, 973 (June 

1989). Preponderance of the evidence simply means that the trier of fact must believe “that the 

existence of a fact is more probable than its non-existence.” In re Contests of Respirable Dust 

Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C. 

Cir. 1998), quoting Concrete Pipe and Prod. of California, Inc. v. Construction Laborers 

Pension Trust for Southern California, 508 U.S. 602, 622 (1993). 

9

 “Expanded Metal” refers to a form of sheet metal cut into grooves or patterns and used 

as a walking surface to increase traction. See, e.g. Ex. P-2. 

41 FMSHRC Page 363
Significant and Substantial 

In order to prove a violation is significant and substantial, the Secretary must prove by a 

preponderance of the relevant evidence that there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature. See Cement Div., 

Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). A determination that a violation is 

significant and substantial requires consideration of the particular facts surrounding the violation. 

Texasgulf Inc., 10 FMSHRC 498, 501 (Apr. 1988). The Commission established a four prong 

test for significant and substantial violations in Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984). 

There, the Commission said that the Secretary of Labor must prove: 

(1) The underlying violation of a mandatory safety standard; (2) a discrete safety

hazard – that is, a measure of danger to safety – contributed to by the violation;

(3) a reasonable likelihood that the hazard contributed to will result in an injury;

and, (4) a reasonable likelihood that the injury in question will be of a reasonably

serious nature.

Mathies, 6 FMSHRC at 3-4; accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 

1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving 

Mathies criteria); see also Consol Pennsylvania Coal Co., 39 FMSHRC 1893, 1899 (Oct. 2017). 

With regard to the second element of the Mathies test, the Commission has elaborated that “the 

second step requires a determination of whether, based upon the particular facts surrounding the 

violation, there exists a reasonable likelihood of the occurrence of the hazard against which the 

mandatory safety standard is directed.” Newtown Energy Inc., 38 FMSHRC 2033, 2038 (Aug. 

2016) (“Newtown”). 

With respect to the third element of the Mathies test, the Commission states that “[t]he 

correct inquiry under the third element of Mathies is whether the hazard identified under element 

two is reasonably likely to cause injury.” Black Beauty Coal Co., 34 FMSHRC 1733, 1742-43 

n.13 (Aug. 2012). Finally, the Commission has stated that the evaluation of a significant and

substantial violation should assume continued mining operations. U.S. Steel Mining Co., 7

FMSHRC 1125, 1130 (Aug. 1985).

Negligence 

An operator is negligent if it fails to meet the requisite standard of care in adhering to the 

standards set forth in the Mine Act and its associated regulations. Brody Mining LLC, 37 

FMSHRC 1687, 1702 (Aug. 2015). Commission Judges, when determining negligence, are 

asked to 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.” Jim Walter Resources, 36 FMSHRC 1972, 1975 (Aug. 

2014). ... The Commission and its judges are not required to apply the 30 C.F.R. Part 100 

regulations that govern the MSHA's determinations. Newtown, 38 FMSHRC at 2048, citing 

Brody at 1701-03. Therefore, the Commission's judges may consider the “totality of the 

circumstances” in assessing the operator’s negligence for a given violation. Brody, at 1702; 

Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1264 (D.C. Cir 2016). The Commission 

41 FMSHRC Page 364
has described ordinary negligence as “inadvertent,” “thoughtless,” or “inattentive” conduct. 

Emery Mining Corp., 9 FMSHRC 1997, 2001, 2004 (Dec. 1987), while high negligence is 

described by the Commission as “an aggravated lack of care that is more than ordinary 

negligence.” Newtown, at 2049, citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998), 

citing Eastern Associated Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991). 

The Parties’ Contentions 

The Secretary contends that Citation No. 9076875 was properly designated as significant 

and substantial, asserting that the violation created a discrete safety hazard of tripping/stumbling, 

and that the hazard of tripping and falling was reasonably likely to cause an injury of cuts, 

bruises, and broken bones, which would be of a reasonably serious in nature. Secretary’s Brief at 

3, 7. Even if each individual item in the walkway may not have established a significant and 

substantial violation, the Secretary argues that the confluence of objects makes the violation 

significant and substantial: “[w]hile each of the hazards ... on their own, may not individually 

establish an S&S violation, taken together they create[d] a dangerous situation that present[ed] a 

discrete hazard to safety.” Id. 

In contrast, the Respondent argues that the Secretary failed to establish by a 

preponderance of the evidence that the stumbling or tripping hazard was reasonably likely to 

occur as a result of the violation. Respondent’s Brief at 12. The Respondent also argues that most 

of the walkway was free of extraneous materials, and that the objects in the travelway were 

highly visible to any miner who may have traveled the walkway. Id. at 13-14. Finally, the 

Respondent argues the inspector improperly based his conclusion as to significant and substantial 

on speculation and conjecture, unsupported by the actual conditions at the mine. Id. at 16-17. 

Discussion 

In the context of the specific facts involved in this matter, the Court will first add to its 

earlier remarks about the significant and substantial designation. To put it in practical terms, 

when analyzing S&S, the critical issues involve likelihood and gravity. Two important recent 

decisions speaking to those characteristics under Mathies are here noted – the Fourth Circuit’s 

decision in Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148 (4th Cir. 2016)(“Knox 

Creek”) and the Commission’s decision in Newtown. 

The first prong of Mathies is straightforward. A violation must be found; without that 

determination any further S&S analysis cannot proceed. As described above, the parties 

stipulated to the existence of a violation. Secretary’s Brief at 3. This stipulation is sufficient for 

the Secretary to meet its burden of proof as to the existence of the violation under Commission 

precedent. However, the Court independently concludes that, after reviewing the photographic 

evidence submitted as Ex. P-2, and the testimony of both Inspector Piko and West, that a 

violation of 30 C.F.R. § 75.202(b) occurred in this case, as there were objects, located in the 

travelway. 30 C.F.R. § 75.202(b) is a mandatory safety standard. The Court therefore concludes 

that the first prong of the Mathies test has been satisfied by the parties’ stipulations and its own 

review of the evidence. 

41 FMSHRC Page 365
Speaking to the second prong of Mathies, with its requirement that there be a showing 

of a “discrete safety hazard—that is, a measure of danger to safety—contributed to by the 

violation, that prong is focused upon the likelihood that a given violation may cause harm. 

This means that for any violation to contribute to a discrete safety hazard, the violation must be 

at least somewhat likely to result in harm. Knox Creek at 162. 

The Commission’s decision in Newtown tracks the Knox Creek analysis in that it follows 

the Fourth Circuit’s explication of the correct S&S analysis. In Newtown, the Commission stated 

that “the relevant concept tying together the second step “likelihood” analysis and third step 

“gravity” analysis of Mathies is the “hazard” at issue.” Id. at 2037. The Commission elaborated 

about the essential importance “for the Judge to adequately define the particular hazard to which 

the violation allegedly contributes. A clear description of the hazard at issue places the analysis 

of the violation’s potential harm in context, by requiring a determination of the relative 

likelihood that the violation will have a meaningful, adverse effect on conditions miners will 

encounter during normal mining operations. That same clearly defined hazard will also frame the 

potential source of injury for purposes of determining gravity in the third step analysis. 

The Commission thus defines the ‘hazard’ in terms of the prospective danger the cited safety 

standard is intended to prevent.” Id. at 2038. 

The Commission added “[i]f the Judge concludes, based upon the evidence, that the 

violation sufficiently contributes to the hazard identified at step two, the Judge then assumes 

such occurrence and determines at step three whether, based upon the particular facts 

surrounding the violation, the occurrence of that hazard would be reasonably likely to result in an 

injury. At step four, the Judge determines whether any resultant injury would be reasonably 

likely to be reasonably serious.” Id. at 2039. “All Commissioners agree that the Judge must 

analyze the likelihood of the occurrence of the hazard at step two of the Mathies test.” Id. 

Although the other three elements of the Mathies test have been sufficiently proven by 

the Secretary, the Court concludes that the Secretary failed to prove by a preponderance of the 

evidence the second prong of the Mathies test: that there was a discrete safety hazard contributed 

to by the violation. Both the Secretary and the Respondent devote a significant portion of their 

post-hearing briefs to the third prong of the Mathies test.10 This emphasis is misplaced, as the 

second prong is where the “particular facts surrounding the violation” are primarily considered.

Newtown Energy, 38 FMSHRC at 2038. The Secretary describes the discrete safety hazard in 

this matter for fulfilling the second prong of Mathies as “tripping/stumbling.” Secretary’s Brief 

at 7. However, the Court identifies the discrete safety hazard in this instance with more 

particularity as the possibility that miners working will trip or stumble over the extraneous 

objects in the travelway. 

10 The Respondent’s brief does discuss Newtown Energy and “the interplay between the 

second and third prongs,” though the Respondent does not itemize its arguments according to 

each specific prong. The Secretary for his part devotes just one paragraph to the second prong, 

and never cites to Newtown Energy, which discusses in detail how the facts of the violation are 

incorporated into the Mathies test, and which was decided more recently than any of the cases 

the Secretary cites in his significant and substantial analysis. 

41 FMSHRC Page 366
The Court concludes that the Secretary failed to prove that the area was traveled 

frequently enough for the violation to be reasonably likely to contribute to a discrete safety 

hazard. Respondent argued post-hearing that the area was not accessed frequently. Respondent’s 

Brief at 13. As just mentioned, the discrete safety hazard of tripping/stumbling is more precisely 

identified as tripping and falling over the objects while miners are on the travelway. Therefore, 

how often the area is accessed is relevant as to the likelihood the violation creates a discrete 

safety hazard of a miner tripping/stumbling over the objects in the travelway. 

The Secretary argues that the area was “regularly traversed by miners during their daily 

duties.” Secretary’s Brief at 9, citing Tr. 47. While the Secretary offered evidence that the area 

was regularly traversed by miners, he did not establish that the walkway was regularly traversed, 

as evidenced by the fact that Inspector Piko acknowledged he did not find anybody in the area 

while conducting the inspection, nor could he identify any miner who said they regularly 

traversed that walkway. Tr. 100. Additionally, the inspection was conducted at approximately 

10:00 AM, according to West, and neither individual could say there were any workers on the 

travelway or even in the area at the time. Tr. 152. However, West also testified, and the Secretary 

did not refute, that GMS workers typically began their shift at 8:00 AM. Tr. 144. 

To the Court, this shows that the entire area is not frequently traveled, as neither the inspector 

nor West saw any employees in the area a full two hours after the morning shift began. As a 

result, the Court concludes the Secretary failed to prove that the area was traveled frequently, 

which decreases the likelihood that the violation will contribute to the discrete safety hazard of 

miners tripping/stumbling over objects in the travelway in the ordinary course of continued 

mining operations. 

Second, the Court concludes that the condition was sufficiently obvious to any individual 

travelling in the area that it was not reasonably likely to create a discrete safety hazard. The roller 

photographed in the citation was a 64-inches in length. The roller was not obscured by any other 

object or covering, and was easy to see even during the inspection. Tr. 150. 

Furthermore, the roller was a bright white color which distinctly contrasted with the color of the 

metal walkway. Ex. P-2. As to the other objects in the walkway, the hose was a bright yellow 

color, and was clearly visible in the inspector’s photo. Id. None of the cited objects were stacked 

on top of each or otherwise obscured from plain view. From these facts, the Court concludes that 

an ordinary miner would have likely spotted the potential tripping hazards while traversing the 

area, and therefore the objects in the walkway were not reasonably likely to contribute to a 

discrete safety hazard. 

The Secretary states that the Court should not consider whether the roller, the hose, and 

the other alleged obstructions in this case might have been readily observable. Secretary’s Brief 

at 7, citing Eagle Nest, Inc., 14 FMSHRC 1119 (July 1992). However, Eagle Nest simply stands 

for the proposition that the Court cannot assume that miners would exercise heightened or unique 

caution when traveling in the area of an alleged hazard. In Eagle Nest, the judge committed error 

by “resting his decision on the possibility of mitigation by the use of caution.” Id. at 1123. That 

does not require the Court to assume a miner is completely unaware or ignorant of his or her 

surroundings, merely that it would be inappropriate to decide a violation was not significant and 

substantial based solely on the miner’s ability to exercise caution. Viewing the circumstances 

surrounding the violation as a whole, including the prominence of the roller and hose, is 

41 FMSHRC Page 367
ultimately relevant to the issue of whether the violation is reasonably likely to give rise to a 

discrete safety hazard. 

Third, the condition was not extensive enough to be reasonably likely to create a discrete 

safety hazard. The objects cited were confined to one specific portion of the travelway. There 

was no evidence that these hazards were extensive across the entirety of the travelway. 

Furthermore, according to the text of the citation itself, the citation was written at 10:58 AM on 

October 23, 2017, and terminated at 11:05 AM on October 23, 2017. See Ex. P-1, Citation No. 

9076875. That means that West was able to abate the violation in seven minutes,11 which in turn 

means that the violation was not so extensive as to require a significant period of time to clean 

up. Additionally, the photographic evidence submitted by the parties shows that there was a 

considerable portion of the cited area of the walkway that was not obstructed by the objects 

referenced in the inspector’s testimony. See Tr. at 120. Therefore, the Court concludes that the 

violation was not extensive enough to be reasonably likely to create a discrete safety hazard. 

Finally, the Court concludes the Secretary did not prove by a preponderance of the 

evidence that it was raining at the time of the violation. On this point, the Secretary did provide 

testimony. See Tr. 54, Secretary’s Brief at 7. However, none of the photos in Ex. P-2 show that 

the surfaces of the travelway were wet, and while the Respondent’s witness could not say 

conclusively that it was or was not raining on the date of the inspection, West did say that an 

outdoor inspection typically would not be done if it were raining outside. Tr. 150. West also 

testified that there were no coverings over the top of the walkway, Tr. 151, meaning there should 

be water on the surfaces of the walkway and the objects in Ex. P-2 if it were raining that day. 

Considering all of the testimony and the exhibits, the Court concludes that the Secretary did not 

prove by a preponderance of the evidence that it was raining on the date of the inspection, which 

goes to the likelihood of a discrete safety hazard in the second prong of the Mathies test. 

The Secretary also cites to Summit Anthracite, 29 FMSHRC 1062, 1081-1082 (Nov. 

2007) (ALJ) (Summit) for the proposition that the violation in this case is significant and 

substantial. Pursuant to Commission Rule 69(d), the decision of one Commission Judge is not 

binding on other Commission Judges. Additionally, as the Secretary acknowledges in his own 

brief, the significant and substantial inquiry depends “on the particular facts surrounding that 

violation.” Secretary’s Brief at 6, citing Cement Division, National Gypsum Co., 3 FMSHRC 

822, 825 (1981). The Court considers the facts in Summit sufficiently dissimilar from the facts of 

this case to be distinguishable. For instance, the alleged obstructions formed the actual frame of 

the generator building, meaning they would be impossible to remove. Furthermore, the Secretary 

established through testimony that the generator building was accessed daily. By comparison, the 

objects in this case were easily cleared from the area, and as explained above, the Secretary did 

not establish that the walkway was regularly traversed. Tr. 100. Therefore, the Court concludes 

11 The Secretary and Respondent focus particularly on the 64” roller and the hose, 

because those two objects were the largest objects in the walkway, and because Piko terminated 

the citation once West moved the roller and hose, but otherwise did not take any actions to abate 

the other initially alleged hazards: specifically, the plastic bag and coal accumulations. Tr. 164. 

As Respondent notes, Piko terminated the citation despite West not removing the coal 

accumulations and plastic bag. Respondent’s Brief at 16. 

41 FMSHRC Page 368
that Summit is not sufficiently analogous to be persuasive as to the issue of a significant and 

substantial violation. 

The Court agrees with the Secretary that the obstructions in the walkway contributed to 

some extent to a safety hazard. That is why the Court concluded the violation occurred separate 

from the parties’ stipulation, and why the Court concludes a negligence finding south of 

moderate is appropriate. Newtown Energy makes it clear that merely “contributing” to a discrete 

safety hazard is insufficient to prove prong two of the Mathies test. Since regulations 

promulgated by the Secretary are ostensibly intended to create a safe working environment, 

every violation of a safety regulation contributes in some capacity to a safety hazard. 

Therefore, for the second prong of the Mathies test to have any meaning, not every violation can 

create a discrete safety hazard within the meaning of Mathies. Based on all of the factors 

described above, the Court ultimately decides that this particular violation was not reasonably 

likely to cause the occurrence of the hazard against which 30 C.F.R. § 77.205(b) is directed 

within the meaning of Newtown Energy. Therefore, the violation was not proven to be significant 

and substantial. 

This does not mean that virtually every violation will amount to being S&S. The Fourth 

Circuit gave as an illustrative example a case where a roadway lacked berms for only a short 

distance, thereby making the hazard of a vehicle falling off the edge less likely. Id. at 163, citing 

Sec’y of Labor v. Black Beauty Coal Co., 34 FMSHRC 1733, 1741 n.12 (Aug. 2012). This Court 

concludes that the violation in this matter is a like situation: the hose presented a slip or stumble 

hazard for only a short distance; there was virtually no evidence of regular miner traffic along the 

walkway; the traffic which would primarily be using the walkway would be the GMS employees 

tasked with using the hose to maintain the walkway and the extraneous portion was the hose 

nozzle end, which end those employees would be using to clean the walkway. Again, the Court 

emphasizes that the violation was conceded here by Consol Pennsylvania – the only issue for this 

part of the discussion is whether it was also S&S. 

Turning to the third prong of Mathies, the Fourth Circuit in Knox Creek noted that it 

has been argued by mine operators that the evidence must establish that the violation was 

reasonably likely to cause injury. The Court rejected that construction, informing that the test 

under the third prong is whether there is a reasonable likelihood that the hazard contributed to by 

the violation will cause injury. Knox Creek, 811 F.3d at 161. By contrast, the Fourth Circuit 

expressed that Mathies’ third and fourth prongs, which it noted that the Commission expected 

would often be combined in a single showing, are primarily concerned with gravity—the 

seriousness of the expected harm. 

This means that the Secretary need not prove a reasonable likelihood that the violation 

itself will cause injury. This is repetitive but bears repeating – the evidence of the likelihood of 

the hazard is not relevant at prong three. Instead, the relevant hazard is to be assumed when 

analyzing Mathies’ third prong. Id. at 164. Accordingly, under the third prong, one assumes the 

existence of the relevant hazard. In the present case the relevant hazard is stumbling or slipping 

on a travelway. 

41 FMSHRC Page 369
Thus, the third prong assumes that if the hazard occurred, and regardless of the likelihood 

that it would occur, whether it was reasonably likely that a reasonably serious injury would 

result. Again here, that means if one were to stumble or slip on the travelway, a reasonably 

serious injury would result. The testimony from the inspector was uncontested that in this matter 

the injury cuts, bruises or broken bones, each of which would be a reasonably serious injury with 

the result of lost workdays or restricted duty. 

The fourth prong of Mathies – An injury of a reasonably serious nature 

After considering the evidence, the Court also agrees with the Secretary that the hazard 

would result in an injury of a reasonably serious nature were the injury to occur, satisfying the 

fourth prong of the Mathies test. The parties stipulated that the expected injury would be “lost 

workdays or restricted duty.” Secretary’s Brief at 3. At hearing, the inspector testified as to the 

possibility of injury from slipping and falling, including broken wrists or concussions. Tr. 63. 

While the Respondent asserts that the circumstances of the violation do not demonstrate a 

reasonable likelihood of an injury of a reasonably serious nature, the Respondent did not address 

whether the hazard of tripping and falling would create an injury of a reasonably serious nature. 

The Commission has recognized on several different occasions that stumbling over obstructions 

in a travelway can lead to an injury of a reasonably serious nature. See e.g., Consol Pennsylvania 

Coal Co., 39 FMSHRC 1893, 1900 (Oct. 2017) (trip and fall over “uneven floor and debris” 

satisfies prong four of Mathies); S&S Dredging Co., 35 FMSHRC 1979, 1982 (July 2013) (slip 

and fall from steps of a loader would result in “reasonably serious injuries” under Mathies);

Buffalo Crushed Stone Inc., 19 FMSHRC 231, 238 n.9 (Feb. 1997) (slipping on a walkway 

would result in “reasonably serious injuries” under Mathies). The Court therefore concludes that 

the fourth prong of the Mathies test has been satisfied by the Secretary. 

Summary of the Court’s determination that the evidence of record failed to establish that 

the violation was “significant and substantial.” 

To recap, the Court, after considering the evidence presented at hearing and the posthearing submissions of the parties, concludes that, while the Secretary established elements one, 

three, and four of the Mathies test, the second Mathies element – the discrete safety hazard, that 

is a measure of danger to safety – contributed to by the violation – was not established by the 

preponderance of the evidence. A number of facts lead to this conclusion. 

To begin, there were two sources of concern – the water hose, which in fact was used to 

maintain the walkway, and the roller, placed on the walkway for the purpose of replacing a worn 

roller. The walkway is maintained by contractors, identified as GMS. The inspector did not 

require that either the coal spillage or the plastic bag needed to be removed for the citation to be 

terminated. 

Regarding the roller, as the photograph clearly demonstrates, was white and highly 

visible against the contrasting metal walkway it rested upon. Further, contrary to the inspector’s 

claim, the roller definitely was not in the center of the walkway. From the Secretary’s own 

photos there is no disputing that the roller was to one side of the walkway and that there was 

41 FMSHRC Page 370
ample room for one to traverse the walkway at the roller’s location.12 Ineluctably, that leaves but 

one condition posing a genuine risk of stumbling or slipping – the water hose, and it must be 

noted, only a small portion of the water hose posed such a risk. As the government photos show, 

the hose is yellow and highly visible. Where the hose shares the same space on the walkway with 

the roller, it is straight, running parallel to the walkway and does not present a stumbling or 

slipping hazard at that location, as there is a path between the roller and the hose there. 

There was, however, a small portion of the hose on the portion of the walkway where 

there are two or three stairs and that confined area did present a slip or stumbling hazard. This 

confined area of the hose represented the only genuine hazard among the four conditions initially 

relied upon by the inspector. In fact, at the hearing, the claimed basis was reduced to only two 

conditions, the water hose and the roller. However, as the Respondent has admitted that the 

standard was violated, the only question is whether that limited area presented a significant and 

substantial violation under Mathies. 

Respondent contends that the contribution of the violation to the cause and effect must be 

significant and substantial and asserts that the second step of Mathies is primarily concerned with 

the likelihood of the occurrence of the hazard. In this instance that means determining the 

likelihood of the occurrence of miners stumbling or slipping. Restated, a determination must be 

made as to whether, based upon the particular facts surrounding the violation, there exists a 

“reasonable likelihood” of the occurrence of the hazard about which the safety standard is 

concerned. Accordingly, to express it plainly, the tangible hazard for determination was whether 

there was a reasonable likelihood of the occurrence of miners stumbling or slipping on the 

walkway at the limited location where the hose presented an issue. The Court finds, based on the 

evidence of record, that the Secretary did not establish such a reasonable likelihood. 

Keeping in mind that the hazard to apply to the S&S inquiry has been found to be limited 

to the discrete area where the hose extended into a portion of the walkway stairs, which consisted 

of two or three steps,13 primarily on the last step and a portion of the walkway after the bottom 

step, the record evidence essentially14 established that only the GMS contractors would be 

exposed to the hose hazard, but it is precisely those employees who use the same hose for the 

purpose of cleaning the walkway. Given that, the likelihood of those employees stumbling or 

slipping was minimal, not reasonably likely. Further, it was the nozzle end of the hose on the 

steps, that is to say, the end of the hose that would be used by the GMS employees to maintain 

12 The inspector admitted that it “would be kind of hard I think to hold just the roller” as 

the basis for an S&S finding. Tr. 120-121. 

13 The inspector was not definitive as to the number of risers or steps were on the stairs, 

stating it was two or three. 

14 The record shows that the only other miner exposed to the hazardous portion of the 

hose was the fireboss. That individual, whose job includes looking for hazards, successfully 

negotiated the walkway that day, including that portion of the walkway where the hose presented 

an issue. Tr. 48. 

41 FMSHRC Page 371
the walkway. So too, those same GMS employees are the contractors who perform belt 

maintenance which includes changing out rollers. 

While the Secretary could have learned from the issuing inspector about whom, if 

anyone, besides the GMS employees, would use the walkway, no such possible evidence was 

introduced and made a part of the record. Therefore, any use by other miners was in the realm of 

speculation and accordingly cannot be part of the S&S determination. 

The record also does not support the claim that it was raining on the day the citation was 

issued and the inspector stated that rain was a factor which added to his S&S determination. The 

exhibit photos support this finding, as did the testimony of West, who offered, without 

contradiction, that typically they do not do an outdoor inspection if it’s raining. 

Having failed to meet the burden of proof for prong three of Mathies, the S&S claim 

cannot be affirmed by the Court. 

The Negligence was less than moderate. 

Regarding negligence, the Commission stated in Newtown, “[i]n analyzing an operator’s 

degree of negligence, 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.’” Id. at 2047, citing A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). 

In determining whether an operator met its duty of care, the Commission considers 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. 

Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015) (citations omitted); U.S. Steel Corp., 

6 FMSHRC 1908, 1910 (Aug. 1984). However, it is noted that in this case, as distinct from 

Newtown, there was no evidence offered regarding managers or supervisors in high positions. 

The Commission has also stated that “an ALJ ‘is not limited to an evaluation of allegedly 

‘mitigating’ circumstances’ and should consider the ‘totality of the circumstances holistically.’” 

Id. at 1702; see also Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1264 (D.C. Cir. 

2016). And, as the Commission has repeatedly held, “the Commission and its Judges are not 

bound to apply the regulations in 30 C.F.R. Part 100 that MSHA uses to calculate most proposed 

penalties.” Newtown, 38 FMSHRC at 2048, citing Brody Mining, LLC, 37 FMSHRC 1687, 

1701-03 (Aug. 2015). The Commission instead employs a traditional negligence analysis, 

assessing negligence based on whether an operator failed to meet the requisite standard of care. 

Brody, 37 FMSHRC at 1702. In doing so the Commission considers what actions a reasonably 

prudent person familiar with the mining industry, the relevant facts, and the protective purpose of 

the regulation, would have taken under the same circumstances. Id. Commission judges are thus 

not limited to an evaluation of mitigating circumstances but may instead consider the totality of 

the circumstances holistically. Id. 

41 FMSHRC Page 372
Although the parties dispute the level of negligence involved in this violation, the Court 

concludes that the inspector’s designation of “moderate” negligence is more appropriately 

characterized as less than moderate. Though administrative law judges are not bound by the 

negligence categories set forth in Part 100, it is noted that “low negligence” is defined as where, 

“[t]he 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). In contrast, those regulations 

describe “moderate negligence” as where there are mitigating circumstances. Id. 

As Respondent argues, and as this Court agrees, the roller and hose were so conspicuous 

on the walkway that it was unlikely that any miner traversing the area would trip and fall over 

them. Respondent’s Brief at 15. The Respondent also takes note that 

[h]oses are used every day to clean and this part of the workers environment.

They are trained to be aware of these conditions when traveling about. Have to

string out the hoses to be able to use them and they will be in the walkways and

on the stairs, etc. on a daily basis. ... the walkway is an expanded metal gra[t]ing

which provides traction in all weather conditions. ... all workers are aware of this

and use caution when traveling through there. This area is cleaned daily. Area has

handrails and toeboards.

Ex. R-1. 

The Court, considering the totality of the circumstances holistically, concludes that the 

negligence was less than moderate and approaching low negligence. 

As Respondent notes in its post-hearing brief, all of the conditions cited were readily 

visible. While the better practice would have been for the GMS employees to completely loop up 

the limited portion of the hose that presented a hazard, and though it is recognized that neatness 

counts, the practical result based on the record evidence was that the GMS employees were the 

ones exposed to the hazard and were using the very hose to perform the walkway maintenance. 

Penalty Determination 

In assessing civil monetary penalties, Section 110(i) of the Act requires that the 

Commission 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). 

41 FMSHRC Page 373
As the Commission has noted, “Administrative Law Judges are accorded broad discretion 

in assessing civil penalties under the Mine Act.” Westmoreland Coal Co., 8 FMSHRC 491, 492 

(Apr. 1986). A Commission Judge’s penalty assessment is reviewed under an abuse of discretion 

standard. Douglas R. Rushford Trucking, 22 FMSHRC 598, 601(May 2000); see also Knight 

Hawk Coal, LLC, 38 FMSHRC 2361, 2373 (Sept. 2016). 

That said, the Court recognizes that there are two important considerations that must be 

evaluated; the Secretary’s burden to provide sufficient evidence to support the proposed 

assessment; and the Court’s obligation to explain the basis for any substantial divergence from 

the proposed amount. The Commission has noted that: 

[The] Secretary [ ] does bear the ‘burden’ before the Commission of providing 

evidence sufficient in the Judge’s discretionary opinion to support the proposed 

assessment under the penalty criteria [and that] [w]hen a violation is specially 

assessed that obligation may be considerable. [On the other hand] the Secretary’s 

proposed penalty cannot be glided over, as the Commission also stated, ‘Judges 

must explain any substantial divergence between the penalty proposed by MSHA 

and the penalty assessed by the Judge. ... If a sufficient explanation for the 

divergence is not provided, the credibility of the administrative scheme providing 

for the increase or lowering of penalties after contest may be jeopardized by an 

appearance of arbitrariness. 

The American Coal Co., 38 FMSHRC 1987, 1993-1994 (Aug. 2016), citing Sellersburg Stone 

Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 57 736 F.2d 1147 (7th Cir. 1984). 

Section 110(i) Penalty Factors As Applied to This Case 

History of Previous Violations 

As the citation indicated, 30 C.F.R. § 77.205(b) was cited three times in two years at this 

mine. However, only one of those citations was to the operator, with the other two citations cited 

to contractors. Neither party contested the existence of the prior violations of this standard. 

The Court therefore concludes that the history of previous violations of this sort at this mine is 

minimal. 

Size of the Business 

The parties stipulated that the Mine Data Retrieval System (MDRS) maintained by the 

Secretary accurately sets forth the size of the Respondent in production tons worked this year, 

the protection tons and hours worked at this mine specifically, the total number of assessed 

violations for the time period listed, and the total number of inspection days during that time 

period. Secretary’s Brief at 3. The mine extracts 2,971,179 tons of coal per year, while the 

operator extracts 24,679,089 total tons of coal per year. Ex. A, Pet. for a Civil Penalty at 10. 

41 FMSHRC Page 374
Negligence 

For the reasons described above, the Secretary’s initial determination of “moderate” 

negligence is appropriate, and will be affirmed by this Court. 

Operator’s Ability to Remain in Business 

The Secretary stated that the assessment of a civil penalty of $625.00 will not affect the 

operator’s ability to remain in business. Secretary’s Brief at 11. The Respondent did not contest 

this assertion in its own post-hearing briefs. Therefore, the Court concludes, in conjunction with 

the size of the mine and its annual production, that a penalty of $625.00 or less would not affect 

the Respondent’s ability to remain in business. 

Gravity of the Violation 

For the reasons described above, the Court has determined that the gravity of the citation was 

over-evaluated; the Court concludes that the likelihood of injury was “unlikely” and was not 

significant and substantial, for several reasons: it took only seven minutes to abate the cited 

condition, the condition was obvious to any individual who might be walking through the area, 

the condition was not extensive, and the walking surfaces were not wet at the time of the 

inspection. 

Good Faith Abatement 

The Secretary’s petition for assessment of civil penalty acknowledged Respondent’s good 

faith abatement of the violation. As the citation was terminated seven minutes after issuance, the 

Court agrees that the Respondent abated the violative condition in good faith. 

Analysis of Section 110(i) Penalty Factors 

Most important of the six factors outlined in Section 110(i) to the ultimate penalty 

determination in this case was the gravity of the violation. Since the likelihood of injury and the 

significant and substantial designation as written in the citation were not sufficiently proved by 

the Secretary at hearing, the penalty should be adjusted downward accordingly. Furthermore, the 

fact that West immediately set out to abate the violation after it was cited, and the fact that he 

was successful in doing so less than ten minutes after the citation was issued, counsels in favor of 

reducing the penalty from the original $625.00 for good faith abatement, in addition to the 

reduction for gravity. 

Respondent calculates that, without the significant and substantial designation and with 

the likelihood of injury modified to “unlikely,” the penalty as calculated by 30 C.F.R. § 100.3 

would be $129.00. Respondent’s Brief at 22. The Court’s $200.00 penalty reflects the Court’s 

conclusion that, although the Respondent’s conduct merely rises to the level of ordinary 

negligence, characterized as less than moderate, and approaching low negligence, in the future 

Respondent should be more diligent as to the requirements of the standard. 

41 FMSHRC Page 375
The Court ultimately determines that the 110(i) factors concerning the size of the 

operator, the history of previous violations, and the operator’s ability to remain in business do 

not substantially alter the Court’s determination of an appropriate penalty, especially given the 

already significant reductions in the penalty amount as a result of the gravity, negligence, and 

good faith abatement considerations. 

Conclusion 

Taking into account all of the preceding findings and observations, the Court concludes 

that the violation occurred, presented an “unlikely” risk of an expected injury of lost workdays or 

restricted duty. The Court also finds that one person would be affected by the violation, the 

violation was not significant and substantial, and that the negligence of the operator was less than 

moderate, approaching low negligence. In light of these considerations, the agreed-upon 

stipulations as to the violation and the injury expected, and the inherent power of Commission 

Judges to independently assess penalties based on their reasoned judgment of all the facts, the 

Court finds that the non S&S determination and the less than moderate negligence determination 

independently support the Court’s imposition of a civil penalty of $200.00 for this violation. 

ORDER 

It is hereby ORDERED that Citation No. 9076875 be MODIFIED to change the 

likelihood of injury from “reasonably likely” to “unlikely,” and to reflect a non-significant and 

substantial violation and less than moderate negligence. Respondent is ORDERED to pay a civil 

penalty in the total amount of $200.00 within 30 days of this decision.15

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Maria Del Pilar Castillo, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis 

Center, Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106 

Patrick Wayne Dennison, Esq., Fisher Phillips LLP, One Oxford Centre, 301 Grant Street, Suite 

4300, Pittsburgh, PA 15219 

Kenneth J. Polka, U.S. Department of Labor, MSHA, 631 Excel Drive, Suite 100, Mt. Pleasant, 

PA 15666 

15 Payment is to be sent to: Mine Safety and Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

41 FMSHRC Page 376
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

May 22, 2019 

ORDER DENYING SECRETARY’S MOTION 

TO CONTINUE STAY 

AND 

ORDER LIFTING STAY 

Before: Judge Feldman 

Before me is the Secretary’s Motion to Continue the Stay in the captioned proceedings. 

The captioned matters concern the term “repeated” as contemplated by the flagrant provisions of 

section 110(b)(2) of Mine Safety and Health Act of 1977, as amended by the Mine Improvement 

and New Emergency Response Act of 2006 (the “Mine Act”), 30 U.S.C §820(b)(2). Section 

110(b)(2) provides, in pertinent part: 

[T]he term “flagrant” with respect to a violation means a [1]

reckless or repeated failure to make reasonable efforts to eliminate

a [2] known [3] violation of a mandatory health or safety standard

that [4] substantially and proximately caused, or reasonably could

have been expected to cause, [5] death or serious bodily injury.

30 U.S.C § 820(b)(2) (emphasis added). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

THE MONONGALIA COUNTY COAL 

 COMPANY, successor to 

 CONSOLIDATION COAL COMPANY, 

 Respondent. 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 2015-0074 

A.C. No. 46-01968-361667

Docket No. WEVA 2015-0425 

A.C. No. 46-01968-371547

Docket No. WEVA 2015-0473 

A.C. No. 46-01968-373553

Mine: Monongalia County Mine 

41 FMSHRC Page 377
The Commission has recognized alternative interpretations of the term “repeated” in 

section 110(b)(2) for accumulation violations of section 75.400, one “narrow” and one “broad.” 1

Sec’y of Labor v. The American Coal Co., 38 FMSHRC 2062, 2064-65 (Aug. 2016) (“American 

Coal”). Under the narrow interpretation discussed in American Coal, an alleged flagrant 

violation can be characterized as “repeated” if the duration of the accumulation violation, 

without regard to a history of violations, is sufficient to satisfy the “repeated” statutory criterion. 

Id. at 2065. Thus, the Commission’s narrow interpretation of the term “repeated” concerns a 

discrete ongoing accumulation violation. Id. In contrast, the Commission articulated that under 

its broad approach an alleged flagrant violation of section 75.400 can be characterized as 

“repeated” based on a recurrent-type violation analysis, i.e., analysis of a history of several 

discrete yet similar violations. Id. at 2064. 

The captioned proceedings are related to an alleged “repeated” flagrant accumulation 

violation of section 75.400, cited in Order No. 8059209 in Docket No. WEVA 2015-0632, based 

on both the narrow and broad approach. See Secretary of Labor v. Monongalia County Coal Co., 

40 FMSHRC 1234 (July 2018) (ALJ) (“Monongalia”). The captioned matters concern three 

alleged “predicate” accumulation violations that the Secretary relies on to support the “repeated” 

characterization under the broad approach for the alleged flagrant accumulation violation that is 

the subject of Order No. 8059209 in Monongalia. 

Monongalia and the three captioned proceedings were consolidated and stayed on 

May 12, 2016, pending a final decision in Secretary of Labor v. Oak Grove Resources, 

38 FMSHRC 957 (May 2016) (ALJ) (“Oak Grove”), which concerned an alleged “repeated” 

flagrant accumulation violation. Unpublished Consolidation Order and Stay Order (May 2016) 

(ALJ). The flagrant designation was deleted by an interlocutory order on June 1, 2015, as Oak 

Grove stood for the proposition that violative accumulations that cannot be reasonably expected 

to proximately cause serious bodily injury or death cannot be elevated to flagrant status simply 

because the violations are characterized as “repeated” based on a history of violations.2 See Oak 

Grove, 38 FMSHRC 957, 960; Order Deleting Flagrant Designation, 37 FMSHRC 1311 (ALJ). 

Oak Grove became final after neither the interlocutory order nor the decision after hearing was 

appealed. Consequently, the stay in Monongalia was lifted on June 14, 2016. Severance Order 

and Prehearing Order, 38 FMSHRC 1573 (ALJ). However, the stay of the captioned “predicate 

proceedings” remained in effect. Id.

1 Section 75.400 provides: 

Coal dust, including float coal dust deposited on rock-dusted 

surfaces, and other combustible materials, shall be cleaned up and 

not be permitted to accumulate in active workings, or on dieselpowered and electrical equipment therein. 

30 C.F.R. § 75.400. 

2 The May 3, 2016, decision in Oak Grove preceded the Commission’s August 30, 2016, 

American Coal discussion of alternative broad and narrow analyses for demonstrating the 

“repeated” element of a flagrant violation. 

41 FMSHRC Page 378
A hearing in Monongalia was conducted in March 2017. Despite the Secretary’s 

alternative reliance on a broad approach, the scope of the hearing in Monongalia was limited to 

whether the violation in Order No. 8059209 was properly characterized as “repeated” under a 

narrow analysis, as it was reasonably likely that the Secretary could demonstrate a prima facie 

case that the cited accumulations existed for several shifts.3 Order, 39 FMSHRC 423, 425 

(Feb. 2017) (ALJ). Although the decision found that the violation was “repeated” under the 

narrow approach, the flagrant designation in Monongalia was deleted because the evidence 

failed to establish that the cited accumulations could be reasonably expected to proximately 

cause serious bodily injury or death, as required by the statute. 40 FMSHRC at 1257. The 

Secretary’s appeal of Monongalia is currently before the Commission. Unpublished Direction for 

Review (Sept. 6 2018).4

Following the July 2018, initial decision on the merits in Monongalia, conference calls 

were conducted on October 2, and December 4, 2018, to determine if the stay of the captioned 

proceedings should be lifted as the “repeated” element had been demonstrated under a narrow 

analysis. Despite my reservations, the parties expressed their desire to continue the stay pending 

the resolution of the Monongalia appeal. Consequently, the Secretary filed a motion in support of 

the continuation of the stay on November 6, 2018 and a supplemental brief in support of the stay 

on January 16, 2019. Given its unopposed nature, a ruling on the parties’ request to continue the 

stay has been held in abeyance. 

The Secretary’s motion to continue the stay pending the Commission’s review of 

Monongalia is based on the mistaken belief that the Secretary’s predicate theory was rejected in 

Monongalia at the trial level. See Sec’y’s Mot. to Continue the Stay. at 2; see also n. 4, infra. As 

noted, the evidentiary requirements for a broad analysis are not before the Commission as 

Monongalia explicitly noted that this question was moot as a consequence of a “repeated” 

finding under a narrow analysis. 40 FMSHRC at 1258. 

It is true that I considered the Secretary’s predicate theory to be legally flawed based on a 

number of concerns. Id. at 1258-60. However, the discussion was dicta in view of the 

Commission’s prior expression of interest in considering the “Judge’s input with respect to 

fashioning the criteria for a ‘broad’ analysis of the ‘repeated’ provision as it applies to 

accumulation violations.” Id. (citing Secretary of Labor v. The American Coal Co., 38 FMSHRC 

2062, 2082 (Aug. 2016)). 

3 Order No. 8059209 notes that the subject accumulations were extensive in nature and 

contained footprints in areas traveled by belt examiners three times each day. Monongalia, 40 

FMSHRC at 1241. 

4 The Commission’s unpublished September 6, 2018, Direction for Review denied 

Monongalia’s Petition for Discretionary Review (“PDR”). Although the Commission granted the 

Secretary’s Amended PDR concerning the deletion of the flagrant designation, the deletion was 

not based on the Secretary’s failure to demonstrate the “repeated” element. Consequently, 

satisfaction of the “repeated” element is not before the Commission on review in Monongalia. 

41 FMSHRC Page 379
While I am reticent to deny an unopposed motion to stay, there is no basis for further 

delaying disposition of the 104(d) orders that are the subjects of the captioned matters. The 

Secretary has failed to demonstrate that he will be prejudiced by lifting the stay in these civil 

penalty proceedings. Moreover, avoiding further delay of the disposition of the captioned cases 

may expedite future proceedings in the unlikely event that a broad “repeated” analysis becomes 

relevant. 

With the benefit of hindsight, I regret not having lifted the lengthy stay in the captioned 

proceedings. As previously noted, it was clear that the Secretary could present a prima facie case 

that the cited accumulations in Order No. 8059209 in Monongalia satisfied the “repeated” 

element under a narrow approach. See n. 3, supra. Thus, to facilitate the disposition of 

Monongalia, I saw no need to take evidence with respect to the yet-to-be-decided criteria for 

establishing a “repeated” accumulation violation of section 75.400 under a broad approach. 

However, I did not foresee the Secretary’s insistence in continuing to advance his predicate 

theory in furtherance of demonstrating the “repeated” element under a broad analysis. 

It has been more than 12 years since the flagrant provisions have been added to the Mine 

Act. During this period, the Secretary, the Commission, and Commission judges have failed to 

fashion criteria for satisfaction of the “repeated” element under an alternative broad approach for 

section 75.400 accumulation violations. With the exception of violations caused by spillage, 

accumulation violations are “repeated” by nature in that they develop and remain unabated for 

several shifts. Consequently, continued efforts to identify the criteria necessary for 

demonstrating the “repeated” element under a broad approach may be a search for a solution to a 

non-existent problem. As evidenced by the lengthy stay in these proceedings brought about by 

the unsuccessful efforts to identify the requisite criteria for demonstrating “repeated” under a 

broad analysis, perhaps the time has come to reconsider the propriety of continuing this 

longstanding uncertainty. 

ORDER 

In view of the above, the Secretary’s request to continue the stay IS DENIED. 

Consequently, IT IS ORDERED the stay in the captioned matters IS HEREBY LIFTED. A 

hearing date in the captioned proceedings will be specified in a subsequent order. 

 /s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

41 FMSHRC Page 380
Distribution: 

Bertha M. Astorga, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite 630 

East, 170 S. Independence Mall West, Philadelphia, PA 19106 astorga.bertha.m@dol.gov 

Jason W. Hardin, Esq., Fabian VanCott, 215 South State Street, Suite 1200, Salt Lake City, UT 84111-

2323 jhardin@fabianvancott.com 

Artemis D. Vamianakis, Esq., Fabian VanCott, 215 South State Street, Suite 1200, Salt Lake 

City, UT 84111-2323 avamianakis@fabianvancott.com 

/nm 

41 FMSHRC Page 381
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9949 

May 24, 2019 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

AMERICAN AGGREGATES OF 

 MICHIGAN, INC. 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2018-0340 

A.C. No. 20-02529-468328

Mine: Ray Road Plant 

ORDER ACCEPTING APPEARANCE, REJECTING SETTLEMENT, 

RECUSING UNDERSIGNED, REQUESTING REASSIGNMENT, 

AND CERTIFYING CASE FOR INTERLOCUTORY REVIEW

Before: Judge McCarthy 

This case is before the undersigned upon a Petition for the Assessment of Civil Penalty 

under section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. 

§ 815(d). The Secretary of Labor (“Secretary”) submitted a motion to approve settlement of this

matter. For the reasons that follow, the undersigned declines to approve the proposed settlement

agreement and requests that this matter be reassigned to another judge for hearing on the merits.

Furthermore, the undersigned certifies, pursuant to Commission Procedural Rule 76, 29 C.F.R. §

2700.76, that this interlocutory ruling involves a controlling question of law and that immediate

review will materially advance the final disposition of the proceeding.

I. STATEMENT OF THE CASE

This matter involves a single alleged violation, Order 8952500 (“Order”). The Order was 

issued on May 17, 2018 pursuant to Section 104(g)(1) of the Mine Act. The Order alleges that: 

[A miner] – Drill Operator, had not received the MSHA-required 4-hour new 

miner training prior to beginning work at the mine. [The miner] had no previous 

mining experience. The mine operator was aware of the Part 46 training 

requirements. The mine operator must withdraw [the miner] from the mine until 

41 FMSHRC Page 382
he receives the required training. The Federal Mine Safety and Health Act of 

1977 states that an untrained miner is a hazard to himself and to others. 

Pet. for Civil Penalty at 11. The inspector marked the likelihood of injury as reasonably likely 

and the expected injury or illness as fatal. The inspector listed the violation as significant and 

substantial (“S&S”), with one person affected. The inspector recorded the level of negligence as 

high. The Order was terminated on May 21, 2018, after the miner received requisite safety 

training. 

On February 14, 2019, the Secretary submitted a motion to approve settlement 

(“Motion”). The Secretary sought to reduce the proposed assessment from $2,007.00 to $132.00. 

The Secretary also sought to modify the likelihood of injury from reasonably likely to unlikely, 

the severity of injury from fatal to lost workdays or restricted duty, and the level of negligence 

from high to moderate, and to remove the S&S designation. Motion at 2. In support of these 

modifications, the Secretary offered the following: 

Respondent argued that the “reasonably likely,” “fatal” and “high” negligence 

designations are not supported by the facts. Respondent asserts that [the miner] 

was not a driller but was a Driller’s Helper. Respondent contends that [the miner] 

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 [the miner] had not received training on all seven subject 

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 [the miner] had received had not been 

properly documented. Respondent stated that although [the miner] 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 [the miner]’s work off mine property was the exact same work 

conducted with the same drill rig the day the withdrawal order was issued. . . . 

Applying the penalty tables found at 30 C.F.R. § 100.3, these modifications result 

in a revised assessment of $132.00. 

Id. at 3. 

After reviewing the proffered basis for modifying the Order, the undersigned requested 

clarification on several portions of the motion that were unclear or unconvincing. Specifically, 

the undersigned stated: 

1. The judge is also uncertain how the parties determined the violation was not

significant and substantial given Respondent admits the miner did not have

training on “[i]nstruction on the health and safety aspects of the tasks to be

assigned” (30 C.F.R. § 46.5(b)(4)) and the “rules and procedures for reporting

hazards” (30 C.F.R. § 46.5(b)(7)), such training is a mandatory safety standard

under Section 115 of the Mine Act, Section 104(g)(1) expressly requires a

41 FMSHRC Page 383
declaration that the miner is “a hazard to himself and to others,” and the 

Respondent acknowledges that the injury would still potentially result in lost 

workdays or restricted duty. 

2. The judge is concerned about the Respondent’s contention that it was “unaware

that the training the miner received” was not sufficient to satisfy 30 C.F.R.

§ 46.5(b) given that the operator knew or should have known what training was

required under 30 C.F.R. § 46.5 before the miner could begin work,

acknowledged that it failed to properly document the training it asserts it gave

him, and conceded that the miner had not been trained on 30 C.F.R § 46.5(b)(4)-

(7) when the Order was issued.

3. The judge is concerned about the size of the reduction in penalty that

accompanies the modifications to the Order, especially in light of the concerns

outlined above. The reduction ends up being approximately 93-94% of the

original proposed assessment amount of $2,007.00.

E-mail from Brendan Porter, Attorney Advisor to Administrative Law Judge Thomas P.

McCarthy, to MSHA Conference and Litigation Representative George F. Schorr (Feb. 14, 2019,

16:23 PM EST). Mr. Schorr responded to the requests for further clarification, as follows:

The Secretary respectfully relies upon the settlement motion as it was filed. The 

Secretary relies on the requirements of settlement language as set out in the recent 

decision from the FMSHRC in American Coal Co., LAKE 2011-13, FMSHRC 

August 2, 2018. The Secretary asserts that the settlement motion includes a 

description of the “fact [sic] on which the parties have agreed to disagree.” 

American Coal, page 9. Further, the settlement motion demonstrates “the 

proposed penalty reduction is fair, reasonable, appropriate under the facts, and 

protects the public interest.” Id. 

E-mail from George F. Schorr, MSHA Conference and Litigation Representative, to Brendan

Porter (Feb. 21, 2019, 17:17 PM EST) (italics added). On February 28, 2019, the undersigned

offered the parties one last opportunity to address the substantive concerns outlined above. Email from Judge Thomas P. McCarthy to the parties (Feb. 28, 2019, 2:17 PM EST) (italics

added). The Secretary’s representative again demurred and stated that “[t]he Secretary

respectfully requests the judge reduce to an Order any requests for additional information or

objection to the settlement.” E-mail from George F. Schorr, MSHA Conference and Litigation

Representative, to Judge Thomas P. McCarthy (Mar. 1, 2019 9:12 AM EST).

II. LEGAL PRINCIPLES AND ANALYSIS

Section 110(k) of the Mine Act provides that “[n]o 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. Sec. 820 (k). The legislative 

history describes the Congressional rationale in great detail. The Senate Report states that the 

“compromising of the amounts of penalties actually paid” has reduced “the effectiveness of the 

41 FMSHRC Page 384
civil penalty as an enforcement tool.” S. Rep. No. 95-181, at 44 (1977), reprinted in Senate 

Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 632 (1978) (“Legis. Hist.”). The Committee explained that its 

investigation of the penalty collection system under the Federal Coal Mine Safety and Health Act 

of 1969 revealed “that to a great extent the compromising of assessed penalties [did] not come 

under public scrutiny,” and that “[n]egotiations between operators and Conference Officers of 

MESA [MSHA's predecessor] are not on the record.” Id. To remedy this problem, Congress 

explained 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. (emphasis added). Congress expressed its “inten[t] that the 

Commission and the Courts will assure the public interest is adequately protected before any 

reduction in penalties.” Id. This “legislative history cannot be ignored simply because of the 

passage of time or because it may be convenient for the Secretary to do so.” The American Coal 

Co., 38 FMSHRC 1972, 1976 n.5 (Aug. 2016) (American Coal I). 

Based on the language of section 110(k) and its legislative history, the Commission 

reaffirmed in Black Beauty that Congress authorized the Commission to approve the settlement 

of contested penalties in section 110(k) “[i]n order to ensure penalties serve as an effective 

enforcement tool, prevent abuse, and preserve the public interest.” 34 FMSHRC at 1862 

(citations omitted). To effectuate this Congressional mandate, the Commission in American 

Coal I held that the Commission and its Judges must “consider whether the settlement of a 

proposed penalty is fair, reasonable, appropriate under the facts, and protects the public interest.” 

38 FMSHRC at 1976. 

The Commission has repeatedly observed that a Judge’s “front line oversight of the 

settlement process is an adjudicative function that necessarily involves wide discretion.” 

Shemwell v. Armstrong Coal Co., 36 FMSHRC 1097, 1101 (May 2014) (citations omitted). As 

the Commission also observed in American Coal II: 

Judges must have sufficient information to determine if a settlement of 

a penalty is fair, reasonable, appropriate under the facts, and protects 

the public interest. Moreover, such information permits a Judge to 

fulfill the duty of articulating reasons for the approval [or rejection] so 

that the process of compromising penalty amounts is transparent, as 

Congress intended. A Judge who properly determines that a settlement 

motion lacks sufficient information may permissibly request further 

facts from the parties. (footnote 6 omitted) See Black Beauty, 34 

FMSHRC at 1863. 

American Coal Co., 40 FMSHRC 983, 991 (Aug. 2018) (American Coal II).1

1

 The Commission ruled in footnote 6 that “some Commission Judges have a practice of 

seeking additional information from parties when evaluating a proposed settlement, and that this 

procedure works effectively. Oral Arg. Tr. 21-22, 31-32, 34-35, 50, 75-76. If a party believes 

that a Judge has overstepped his or her authority or otherwise committed an abuse of discretion 

(continued...) 

41 FMSHRC Page 385
Applying these principles, I find that the proposed settlement is not reasonable, 

appropriate under the proffered facts, or in furtherance of the public interest. The Secretary 

seeks to reduce the proposed penalty assessment from $2,007.00 to $132.00. This amounts to an 

approximate 93.5% reduction in the penalty amount. 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. 

As a threshold matter, the admitted facts do not support removal of the S&S designation. 

The Mine Act describes an S&S violation as one “of such nature as could significantly and 

substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 

30 U.S.C. § 814(d)(1). A violation is S&S if, “based on the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). The Commission has explained that the “reasonable likelihood” language 

in National Gypsum does not require the violation itself to create a reasonable likelihood of 

injury; a showing that the hazard contributed to by the violation can be reasonably likely to result 

in an injury is sufficient to affirm an S&S designation. Musser Engineering, Inc., 32 FMSHRC 

1257 (Oct. 2010). 

To establish an S&S violation, the Secretary must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to safety—

contributed to by the violation;2

 (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 

1

 (...continued) 

in requesting such facts, a party may appeal that matter to the Commission on an interlocutory 

basis. See Solar Sources, Inc., Unpublished Order dated May 16, 2018 (granting interlocutory 

review of 39 FMSHRC 2052 (Nov. 2017) (ALJ)).” American Coal II, 40 FMSHRC at 991 n.6. 

2

 Step two of the Mathies analysis focuses on “the extent to which the violation 

contributes to a particular hazard.” The Commission has recently clarified that this step is 

“primarily concerned with likelihood of the occurrence of the hazard against which a mandatory 

safety standard is directed.” Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug.2016) (citing

Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 163 (4th Cir. 2016)). Step two of the 

Mathies test involves a two-part analysis: 1) identification of the hazard created by the violation 

of the safety standard; and 2) “a determination of whether, based on the particular facts 

surrounding the violation, there exists a reasonable likelihood of occurrence of the hazard against 

which the mandatory safety standard is directed.” Newtown Energy, 38 FMSHRC at 2038. 

41 FMSHRC Page 386
reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4. (Jan. 1984).3

 The S&S 

determination should be made assuming “continued normal mining operations.” U.S. Steel

Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). This evaluation also considers the length of 

time that the violative condition existed prior to the citation and the time that it would have 

existed if normal mining operations had continued, without any assumptions regarding 

abatement. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574 (July 1984).4

 

Section 104(g)(1) of the Mine Act states that, if a representative of the Secretary finds a 

miner “who has not received the requisite safety training as determined under section 115 of this 

Act [30 U.S.C. § 825], 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) (emphasis 

added). 

In the proffered factual basis for settlement, both parties acknowledge that the miner did 

not have all of the mandatory safety training. The parties agree that on the day of the inspection, 

the miner had not received “[i]nstruction on the health and safety aspects of the tasks to be 

assigned” (30 C.F.R. § 46.5(b)(4)) and the “rules and procedures for reporting hazards.” (30 

C.F.R. § 46.5(b)(7)). Such training is a mandatory safety standard under Section 115 of the

Mine Act. Section 104(g)(1) declares that such an untrained miner is “a hazard to himself and

to others.” The parties agree that the injury expected to result from the untrained miner

violation is likely to result in lost workdays or restricted duty. Given these undisputed facts and

principles of law, the Secretary can offer no persuasive explanation for why the violation should

be modified by removing the S&S designation, other than the fact that is just more convenient to

3

 The Secretary, mine operators, and the federal appellate courts have accepted the

Mathies test as authoritative. See Knox Creek Coal Corp., 811 F.3d at 160 (noting federal 

appellate courts’ uniform adoption of Mathies test and parties’ recognition of authority of the 

test); Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1267 (D.C. Cir. 2016) (applying 

Mathies criteria); Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135 

(7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of 

Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies criteria). 

4 See also Black Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub nom. 

Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014); Rushton Mining Co., 

11 FMSHRC 1432, 1435 (Aug. 1989); Knox Creek, 811 F.3d at 165-66 (upholding 

Commission’s rejection of “snapshot” approach to evaluating S&S for accumulations violation); 

Mach Mining, 809 F.3d at 1267-68 (discussing the operative timeframe for violations in the 

context of S&S analyses). 

41 FMSHRC Page 387
make this violation go away.5

 Accordingly, I conclude that the Secretary failed to adequately 

explain why the modifications to the Order are “appropriate under the facts” within the meaning 

of American Coal I. 

The Secretary argues that he is merely required to present facts upon which the parties 

have “agreed to disagree” and that the facts need not raise a “legitimate disagreement that can 

only be resolved by a hearing.” American Coal II, 40 FMSHRC at 991. This is not a situation, 

however, where the parties have agreed to disagree. Rather, the undersigned’s review of the 

proffered settlement agreement indicates that the parties have agreed to fundamental, undisputed 

facts that would establish an S&S violation: the miner had not received the required mandatory 

training, rendering him “a hazard to himself and to others” according to the express language in 

the Mine Act, and there is a reasonable likelihood that the untrained-miner hazard contributed to 

by the violation will result in an injury that would result in lost workdays or restricted duty.6

 

Contrary to the Secretary, American Coal II does not dictate that the undersigned approve 

this settlement agreement. In fact, that decision counsels toward the opposite conclusion in 

fulfillment of my statutory obligations to review settlement agreements to ensure consistency 

with Commission precedent and the purposes of the Act. In American Coal II, the parties agreed 

to a 30% reduction in the overall proposed assessment in the penalty docket without changing 

the paper text of any the citations. Id. at 989. The Commission agreed with the parties that “the 

fact that the proposed settlement preserves all of the citations as written could assist the 

Secretary in future enforcement efforts against this operator by ensuring that the paper record 

reflects the Secretary’s views regarding gravity and negligence stated in the citations.” Id. 

In the present settlement agreement, by contrast, 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 well-nigh 94%. Almost 

any future enforcement benefit that the Secretary might derive from the Order, as written, has 

been almost completely eliminated by the proposed extensive modifications to the paper text of 

5

 It should be noted that this Order neither challenges the Secretary’s discretion to 

initially designate a violation as S&S nor raises the issue of whether a judge on his own initiative 

can designate a violation as S&S. Cf. Mechanicsville Concrete, Inc., 18 FMSHRC 877 (June 

1996). Rather, the question is whether a Commission judge must accept—once the Secretary has 

already designated a violation as S&S—a settlement of an S&S violation that is not fair, 

reasonable, or appropriate under the facts, and does not protect the public interest. 

6

 Based on this determination, the undersigned finds it appropriate to recuse himself from 

any hearing on the merits in this matter, and requests that the Acting Chief Judge reassign this 

matter to another judge for hearing. 

41 FMSHRC Page 388
the Order.7

 While there is likely still some marginal enforcement benefit to the modified Order, 

it is nowhere near as substantive as the terms of the settlement in American Coal II, and nowhere 

near as substantive as the terms of the original Order. 

Beyond failing to be fair, reasonable, and appropriate under the facts, the Motion fails to 

protect the public interest. The Mine Act was passed in 1977 in response to several accidents 

that caused the deaths of dozens of miners. As noted, Congress in particular was concerned with 

what it viewed as a pervasive practice of erstwhile regulators within the Department of the 

Interior, who surreptitiously sold out the public interest to protect our nation’s miners based on a 

cozy relationship with mine operators. Specifically, the Senate Report stated that the 

“compromising of the amounts of penalties actually paid” had reduced “the effectiveness of the 

civil penalty as an enforcement tool.” S. Rep. No. 95-181, at 44 (1977), reprinted in Senate 

Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and 

Health Act of 1971, at 632. The facts here elicit concerns that this is the same type of convenient 

or misguided sellout that Congress sought to guard against when lodging final approval for 

settlement agreements in contested cases with the Commission. 

 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 

7

 The Secretary includes the following language in every motion to approve settlement 

that he submits to the Commission: 

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. In deciding that such a compromise is 

appropriate, the Secretary has not given weight to the costs of going to trial as 

compared to the possible monetary results that would flow from securing a higher 

penalty total. He has, however, considered the fact that he is maximizing his 

prosecutorial impact in settling this case on appropriate terms and in litigating 

other cases in which settlement is not appropriate. 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 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. 

Motion at 2. Irrespective of the merits of such regularly-inserted and practical language, the 

undersigned notes that one Commissioner in American Coal II cogently observed that “[t]he 

Secretary’s boilerplate recitations of having evaluated the value of the compromise, the prospects 

of coming out better or worse after a trial, and ‘maximizing his prosecutorial impact’ add 

nothing” to the factual basis in support of settlement. American Coal II, 40 FMSHRC at 989 

n.10 (Cohen, C.). 

41 FMSHRC Page 389
other than the fact that Respondent violated the Act by allowing an untrained miner to work as a 

hazard likely to result in lost workdays or restricted duty injury to himself and other miners. The 

Secretary insists that the Commission has no right to seek clarification of the facts submitted to 

justify a settlement motion and that the Secretary has no obligation to respond to questions from 

Commission Judges regarding how he reached the conclusions he did in the settlement motion. 

Assuming arguendo that the Secretary is correct,8

 the undersigned is not obligated to approve a 

settlement agreement that lacks factual support and fails to be fair, reasonable, and appropriate 

under the facts, and to protect the public interest. Other than transparency, the undersigned sees 

little substantive distinction between MSHA’s approach to the proposed settlement resolution in 

this case and the pre-1977 enforcement regime that led to creation of the Commission’s 

settlement approval authority in the first instance. 

Under section 110(k), Commission judges do not act as a rubber stamp for the 

Secretary’s proposed settlement agreements. As outlined above, the proposed Settlement 

Agreement in this case lacks probative factual support, contains substantive admissions that 

amount to an S&S designation, contravenes Commission precedent, and collides with 

Congressional intent to protect the health and safety of our mining industry’s most precious 

resource, our miners. Accordingly, the Secretary’s Motion to Approve Settlement is DENIED. 

Under Commission Procedural Rule 76, 29 C.F.R. § 2700, the undersigned certifies, on 

his own motion, that this interlocutory ruling involves a controlling question of law and that, in 

his opinion, immediate review will materially advance the final disposition of the proceeding. 

This Decision Rejecting Settlement raises similar issues to those currently before the 

Commission on assignments of error in Solar Services, Inc., 39 FMSHRC 2052 (Nov. 2007) 

(ALJ). As such, there is a question of law that would materially advance the final disposition of 

the proceeding, to wit, whether the undersigned abused his discretion in denying the Secretary’s 

Motion to Approve Settlement. See American Coal II, 40 FMSHRC at 987 (“The Commission 

reviews a Judge’s denial of a proposed settlement under an abuse of discretion standard.”). 

This interlocutory ruling is hereby CERTIFIED under Commission Procedural Rule 76, 

29 C.F.R. § 2700.76. It involves a controlling question of law and interlocutory review will 

materially advance the final disposition of the proceeding. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

8 But see Solar Sources, Inc., Unpublished Order dated May 16, 2018 (granting 

interlocutory review of 39 FMSHRC 2052 (Nov. 2017) (ALJ)). 

41 FMSHRC Page 390
Distribution: 

George Schorr, U.S. Department of Labor, MSHA, 515 West 1st Street, Suite 33, Duluth, MN 

55802 

Malcolm Dunbar, American Aggregates of Michigan, Inc., 51445 W. 12 Mile Road, Wixom, MI 

48393 

/ztb 

41 FMSHRC Page 391