i 

July 2023 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

07-20-23 PERRY COUNTY RESOURCES, 

LLC 

KENT 2022-0024 Page 573

07-28-23 SEC. OF LABOR o/b/o VICTOR 

TORRES v. W.G. YATES & SONS 

CONSTRUCTION COMPANY

WEST 2023-0256-DM Page 583

COMMISSION ORDERS 

07-06-23 VULCAN CONSTRUCTION 

MATERIALS, LLC 

SE 2021-0163 Page 590

07-11-23 HIGHWAY MATERIALS, INC. PENN 2023-0003 Page 593

07-11-23 VULCAN ELECTRICAL SERVICES SE 2023-0014 Page 597

07-11-23 EAGLE ROCK, INC. WEST 2023-0012 Page 600

07-11-23 CSI SANDS NE, LTD. YORK 2023-0003 Page 603

07-18-23 CALLENDER CONSTRUCTION 

COMPANY, INC. 

LAKE 2020-0189-M Page 606

07-18-23 BLUE CREEK MINING, LLC WEVA 2022-0470 Page 609 

07-27-23 CONSOL MINING COMPANY LLC WEVA 2023-0141 Page 613
ii 

ADMINISTRATIVE LAW JUDGE DECISIONS 

07-03-23 MARSHALL COUNTY COAL, 

RESOURCES, INC. 

WEVA 2023-0214 Page 616

07-07-23 NUFAC MINING COMPANY, INC WEVA 2023-0149 Page 625

07-11-23 JUSTICE ENERGY COMPANY, INC. WEVA 2023-0148 Page 628

ADMINISTRATIVE LAW JUDGE ORDERS 

07-06-23 SEC. OF LABOR o/b/o VICTOR 

TORRES v. W. G. YATES & SONS 

CONSTRUCTION COMPANY 

WEST 2023-0256-DM Page 635

07-07-23 CONSOL MINING COMPANY LLC WEVA 2023-0141 Page 652
iii 

Review Was Granted In The Following Cases During The Month Of 

July 2023 

Secretary of Labor v. Carmeuse Lime, Docket No. SE 2022-0196 (Judge Moran, June 13, 2023) 

Secretary of Labor v. Consol Mining Company, LLC, et al., Docket No. 

WEVA 2023-0141 (Judge Young, Interlocutory Review) 

Review Was Denied In The Following Case During The Month Of 

July 2023 

Todd Descutner v. Nevada Gold Mines LLC, Docket No. WEST 2022-0201 

(Judge Simonton, May 25, 2023) 

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

July 20, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 

 v. Docket No. KENT 2022-0024 

 

PERRY COUNTY RESOURCES, LLC 

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

DECISION

BY THE COMMISSION: 

This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”), comes before us on interlocutory 

review of a decision of a Commission Administrative Law Judge denying a motion to approve 

settlement between Perry County Resources, LLC (“Perry”) and the Secretary of Labor. The 

Judge based his denial on the Secretary’s refusal to provide an order issued pursuant to section 

104(b) of the Mine Act,1 which was associated with a citation that was included in the motion to 

approve settlement. 

For the reasons discussed below, we conclude that the Judge abused his discretion in 

denying the motion. Therefore, we reverse the Judge’s decision and approve the settlement. 

I. 

Factual and Procedural Background 

A. Factual Background 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”) sent 

Perry a proposed penalty assessment, proposing civil penalties against Perry for several citations 

issued pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), at Perry’s E4-2 mine. 

Perry contested the penalty proposals with respect to four of the citations by checking the 

1

 Section 104(b) provides in part that if an authorized representative of the Secretary 

finds during a follow-up inspection that a violation described in a citation “has not been totally 

abated within the period of time as originally fixed therein or as subsequently extended, 

and . . . that the period of time for the abatement should not be further extended,” the 

representative shall issue an order requiring the removal of certain persons from the affected area 

until “such violation has been abated.” 30 U.S.C. § 814(b). 

45 FMSHRC Page573
appropriate boxes on MSHA Form 1000-179. The Secretary subsequently filed a petition for 

assessment of penalty, and Perry filed an answer to the petition. 

The four citations and associated penalties that Perry contested may be summarized as 

follows: 

1. Citation No. 9282162, alleging a significant and substantial (“S&S”)2

 violation of 30 

C.F.R. § 75.202(a) because roof bolt plates were missing, due to rusting, on roof bolts 

along the primary escapeway. Proposed penalty: $336. 

2. Citation No. 9282163, alleging an S&S violation of 30 C.F.R. § 75.380(d)(1) because 

the primary escapeway was not being maintained in safe condition because it had 

draw rock and thick mud which would impede safe passage. Proposed penalty: 

$302. 

3. Citation No. 9282123, alleging an S&S violation of 30 C.F.R. § 75.380(d)(7)(i) 

because the lifeline in the secondary escapeway was broken and pulled apart and was 

not being properly maintained. Proposed penalty: $530. 

4. Citation No. 9282125, alleging an S&S violation of 30 C.F.R. § 75.1722(a) because 

the equipment guard was not being properly maintained due to an opening in the 

guard along the belt tailpiece. Proposed penalty: $302. 

Ex. A to PIR. In the row of MSHA Form 1000-179 that pertains to Citation No. 9282162, the 

type of action is listed as “104(a) C/104(b) O.” 

B. Motions and Correspondence 

In April 2022, the parties filed a Joint Motion to Approve Settlement. In the motion, the 

parties proposed that there should be no modifications with respect to three of the four citations, 

and that the operator would pay the proposed penalties associated with those citations. Jt. Mot. at 

2. Regarding the remaining citation, Citation No. 9282123, the parties agreed that the operator 

should pay a penalty of $264 rather than $530 due to a reduction in negligence from moderate to 

low. Id. at 2, 4. The parties proposed no modification with respect to Citation No. 9282162, 

which was associated with the failure to abate order.

A few weeks later, the Judge and the parties exchanged emails about the absence of the 

section 104(b) order from the record. On May 31, 2022, the Judge emailed the parties that he 

noticed that the section 104(b) order was not in the official file, and that he needed to be 

provided with a copy of the order before he could rule on the joint motion. Ex. C to PIR at 3. The 

Conference and Litigation Representative (“CLR”) representing the Secretary’s interests 

responded that the Secretary declined to provide other documents not before the court because 

the order requested by the Judge was not contested. Id. at 2-3. The Judge replied that he would 

be unable to proceed on the motion until he received the order and stated his opinion that the 

order was a matter of public record. Id. at 2. The CLR then stated that the citation affiliated with 

2

 The “significant and substantial” terminology is taken from section 104(d)(1) of the 

Mine Act, 30 U.S.C. § 814(d)(1), which distinguished as more serious in nature any violation 

that “could significantly and substantially contribute to the cause and effect of a . . . mine safety 

or health hazard.” 

45 FMSHRC Page574
the order, Citation No. 9282162, had been affirmed and that the good faith discount had not been 

given for the penalty for the underlying violation. Id. at 1. The Judge again responded that he 

disagreed with the CLR’s position and that he would have no choice but to file a request under 

the Freedom of Information Act in order to obtain the order. Id.

Approximately two weeks later, the parties filed a Supplemental Motion to Approve 

Settlement or Motion to Certify for Interlocutory Review, which incorporated by reference the 

Joint Motion to Approve Settlement. Supp. Mot. at 1. In the supplemental motion, the Secretary 

submitted that she had not attached a copy of the section 104(b) order to the petition for 

assessment of penalty because she had not proposed a penalty for that order. Id. at 2. She noted 

that because Perry had not contested the order or sought temporary relief from it, the 

Commission never had jurisdiction over the order. Id. The Secretary asserted that the motion to 

approve settlement should be approved because the settlement satisfies the Commission’s 

standard for approval of settlements. Id. at 3. Alternatively, the Secretary requested the Judge to 

certify this case for interlocutory review because the requirements for review had been met 

pursuant to 29 C.F.R. § 2700.76. Id. at 5-6. 

C. Judge’s Orders 

On June 22, 2022, the Judge issued an order directing the Secretary to disclose all 

documents pertaining to the issuance of the section 104(b) order associated with Citation No. 

9282162. 44 FMSHRC 501, 506 (June 2022) (ALJ). The Judge noted that the abatement time 

had been extended for Citation No. 9282162, that the record does not reveal whether the 

extended termination had been met, and that the section 104(b) order would provide such 

information. Id. at 502. The Judge reasoned that a section 104(b) order has significance in its 

own right in that a penalty may be assessed in connection with the order and that its issuance 

impacts the amount of penalty that is assessed for the underlying violation based upon 

consideration of the operator’s demonstrated good faith in attempting to achieve rapid 

compliance after notification of the violation. Id. at 504-05. The Judge observed that the record 

also does not reveal if the Secretary met his obligation to notify the miners’ representatives that 

the operator failed to abate a violation within the specified abatement period. Id. at 505. 

The Secretary and operator provided no further documents in response to the Judge’s 

June order.

On October 5, 2022, the Judge issued an order denying the Secretary’s settlement motion 

and denying the Secretary’s motion to certify the matter for interlocutory review. 44 FMSHRC 

621 (Oct. 2022) (ALJ). The Judge reiterated much of the reasoning set forth in his June order, 

concluding that when presenting a motion to approve settlement, the Secretary should provide 

the entire documentary record related to the citations involved in the docket. Id. at 624. The 

Judge explained that Citation No. 9282162 is part of the docket, and that the documentary record 

concerning the violation is incomplete without the section 104(b) order. Id. at 627. The Judge 

further denied the Secretary’s Motion to Certify for Interlocutory Review concluding that the 

requirements for interlocutory review had not been met. Id. 

45 FMSHRC Page575
D. Interlocutory Review 

The Secretary subsequently filed a petition for interlocutory review of the Judge’s 

October 5 order. The Commission granted review “of the Judge’s order of October 5, 2022, and 

the issue of whether the Judge abused his discretion in denying approval of the settlement motion 

based on the Secretary’s refusal to provide a section 104(b) order that was associated with a 

citation that was a subject of the motion to approve settlement.” 44 FMSHRC 703 (Dec. 2022). 

On review, the Secretary argues that the Judge abused his discretion in denying the 

settlement motion. She explains that the instant docket involves four violations and only one 

penalty compromise, and that the failure to abate order was irrelevant both to the compromised 

penalty and to the citation associated with such penalty. The Secretary submits that she provided 

sufficient facts to permit the Judge to determine if the penalty modification protected the public 

interest. 

She further notes that the section 104(b) order was a separate enforcement action with its 

own issuance number, and that if Perry wanted to contest the order, it could have done so 

separately. The Secretary explains that because MSHA did not propose a penalty for the order 

and Perry did not contest it, the Secretary did not attach a copy of the section 104(b) order to the 

penalty petition. 

II. 

Disposition 

Section 110(k) of the Mine Act sets forth the Commission’s authority to approve 

settlements of the Secretary’s proposed assessments once contested. It provides: 

No proposed penalty which has been contested before the 

Commission under section 105(a) shall be compromised, 

mitigated, or settled except with the approval of the Commission. 

No penalty assessment which has become a final order of the 

Commission shall be compromised, mitigated, or settled except 

with the approval of the court. 

30 U.S.C. § 820(k). Commission Procedural Rule 31 requires that a motion to approve penalty 

settlement must include, for each violation, the original amount of the penalty proposed by the 

Secretary, the amount of the penalty agreed to in settlement, and facts in support of the penalty 

amount agreed to by the parties. 29 C.F.R. § 2700.31(b)(1). 

The Commission has explained that “Congress authorized the Commission to approve the 

settlement of contested penalties . . . ‘to ensure penalties serve as an effective enforcement tool, 

prevent abuse, and preserve the public interest.’” American Coal Co., 38 FMSHRC 1972, 1976 

(Aug. 2016) (“AmCoal I”) (quoting Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 

2012)). In “effectuating this Congressional mandate, the Commission and its Judges consider 

whether the settlement of a proposed penalty is fair, reasonable, appropriate under the facts, and 

45 FMSHRC Page576
protects the public interest.” AmCoal I, 38 FMSHRC at 1976. The Commission has recognized 

that parties may submit factual support consistent with the penalty criteria factors found in 

section 110(i) of the Mine Act, 30 U.S.C. § 820(i), as well as facts supporting settlement that fall 

outside of the section 110(i) factors. Id. at 1982. 

The Commission reviews a Judge’s denial of a proposed settlement under an abuse of 

discretion standard. Sec’y of Labor on behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC 

1097, 1101 (May 2014). An abuse of discretion may be found where there is no evidence to 

support the Judge’s decision or if the decision is based on an improper understanding of the law. 

Id. at 1101. In Solar Sources Mining, LLC, 41 FMSHRC 594, 599 (Sept. 2019), the Commission 

concluded that the Judge abused his discretion in denying a settlement motion because he: (1) 

failed to apply the AmCoal I standard, (2) denied the settlement based on the Secretary’s refusal 

to provide a copy of the inspector’s notes and photographs, and (3) erred in finding that the 

Secretary failed to prove any facts in support of the settlement. 

We conclude that the Judge also abused his discretion in the case at hand; the Judge’s 

decision is based on an improper understanding of the law. The Judge failed to apply the AmCoal 

I settlement standard and instead denied the settlement motion because the Secretary did not 

provide a copy of the section 104(b) Order related to Citation No. 9282162. 

The Commission has repeatedly recognized that a Judge who properly determines that a 

settlement motion lacks sufficient information may permissibly request further facts from the 

parties. Solar Sources, 41 FMSHRC at 602 (citing Black Beauty, 34 FMSHRC at 1863). 

However, the Commission has explained that during the review of a proposed settlement, 

the Judge is not expected to engage in fact finding as the Judge would post-hearing. Solar 

Sources, 41 FMSHRC at 602 (“At the pre-hearing settlement stage of a Commission proceeding, 

no evidence has been adduced into the record and the Judge is not required to engage in fact 

finding.”). In the context of reviewing a proposed settlement, a Judge may not “assign[] 

probative value to some facts without the benefit of an evidentiary hearing.” American Coal Co, 

40 FMSHRC 983, 991 (Aug. 2018) (“AmCoal II”). Judges are “expected to consider the facts as 

alleged by the parties in their settlement, evaluate such information under the applicable 

Commission standard for review, and determine whether the facts support the penalty agreed to 

by the parties.” See Solar Sources, 41 FMSHRC at 602.

Under the circumstances of this case, the Judge erred by denying the settlement on the 

basis that he was not provided the section 104(b) failure to abate order associated with Citation 

No. 9282162. The operator agreed to accept Citation No. 9282162 as written and pay the 

proposed penalty in full. The Judge failed to identify relevant facts that would be provided by the 

order that had not already been made a part of the record.3

3

 In Solar Sources Mining, LLC, 41 FMSHRC 594, 603 (Sept. 2019), the Commission 

held that the Judge abused his discretion when he denied a settlement, in part, because the 

Secretary refused to provide evidentiary documents such as the inspector’s notes and 

photographs. Without reaching the question of whether a section 104(b) order issued for a failure 

(continued...) 

45 FMSHRC Page577
An operator’s timeliness in achieving abatement impacts the penalty criteria of “the 

demonstrated good faith of the person charged in attempting to achieve rapid compliance.” 30 

U.S.C. § 820(i). Here, the Secretary provided factual information that the good faith abatement 

discount was not given with respect to the proposed penalty for Citation No. 9282162. Supp. 

Mot. at 3 (citations omitted).4

 

In addition, the Judge’s repeated concern that the record does not reveal if the Secretary 

met his obligation to notify the miners’ representatives that the operator failed to abate a 

violation within the specified abatement period (44 FMSHRC at 627; 44 FMSHRC at 505) is 

irrelevant to the subject proceeding. Section 105(b)(1)(A) 5 requires the Secretary to provide 

notice to an operator and to the miners’ representative that the operator has failed to timely abate 

a violation and that a penalty will be proposed under section 110(b) of the Mine Act, 30 U.S.C. § 

820(b). Here, the Secretary provided factual information that she did not propose a penalty in 

connection with the section 104(b) order. Therefore, the provisions of section 105(b)(1)(A) do 

not apply to this proceeding. 

Under Commission Procedural Rule 28, the Secretary is required to attach to a petition 

for assessment of penalty “[a] legible copy of each citation or order for which a penalty is 

sought.” 29 C.F.R. § 2700.28(c). Since the Secretary did not propose a penalty for the section 

3

 (...continued) 

to abate a contested citation may ever appropriately be sought by a Judge to further the Judge’s 

AmCoal I analysis or whether it constitutes prohibited evidentiary documentation, we find the 

Judge’s request was inappropriate in this case. The Judge failed to identify a rationale for 

requiring the order, considering that the operator accepted the contested citation as written and 

agreed to pay the proposed penalty in full. 

4

 Moreover, regarding the Judge’s statement in his June 22 order that although the 

termination date had been extended in Citation No. 9282162, the record was missing information 

about whether the extended date had been met, the Judge acknowledged that “one may presume 

it was not, because Exhibit A for this docket reveals that a section 104(b) order was issued.” 44 

FMSHRC at 502. 

5

 Section 105(b)(1)(A) provides in part: 

If the Secretary has reason to believe that an operator has failed to 

correct a violation for which a citation has been issued within the 

period permitted for its correction, the Secretary shall notify the 

operator by certified mail of such failure and of the penalty 

proposed to be assessed under section 110(b) . . . . A copy of such 

notification of the proposed assessment of penalty shall at the same 

time be sent by mail to the representative of the mine 

employees. . . . 

30 U.S.C. § 815(b)(1)(A). 

45 FMSHRC Page578
104(b) order, the Secretary was not required to attach a copy of the order to the Secretary’s 

petition.6

The Judge further erred by failing to evaluate the facts provided by the parties under the 

settlement against the AmCoal standard and to determine whether those facts support the penalty 

agreed to by the parties.7

 While we could remand this case to the Judge to apply the standard, 

relying upon relevant factual support in the record, we conclude that remand is unnecessary 

because the parties presented sufficient facts to support the conclusion that the settlement is fair, 

reasonable, appropriate, and serves the public interest. 

In the Joint Motion to Approve Settlement, the parties stated in part that they had 

considered the alleged violations, the six statutory penalty criteria, “and other non-monetary 

considerations that fall outside of [section] 110(i) but that support settlement.” Jt. Mot. at 2. The 

parties agreed that Citation Nos. 9282162, 9282163, and 9282125 should be accepted by Perry as 

written and that the operator should pay the original proposed penalties associated with those 

citations. Id. at 3; Supp Mot. at 1. 

In addition, the parties stated that modification was appropriate for Citation No. 9282123. 

This citation alleged an S&S violation of 30 C.F.R. § 75.308(d)(7)(i) due to the lifeline in the 

secondary escapeway not being properly maintained. The parties provided information that the 

negligence associated with the violation should be reduced from moderate to low, and that the 

operator should pay a penalty of $264 rather than $530. The lowering of negligence was based 

on statements provided by the parties that: (1) mine management did not have knowledge of the 

condition or reason to believe that it existed; (2) the alleged condition was not present during the 

morning pre-shift examination or when the crew traveled to the section at the start of their shift; 

(3) the condition likely occurred when a load of supplies was transported to the section without 

the knowledge of the equipment operator; and (4) the condition was promptly corrected as soon 

as it was discovered. Jt. Mot. at 4. 

The Commission has recognized that an “operator’s knowledge (actual or constructive) is 

a key component of a negligence determination.” Ohio Cty Coal Co., 40 FMSHRC 1096, 1099 

(Aug. 2018). The Commission has considered evidence relating to an operator’s lack of 

knowledge to support a reduction in negligence when approving a settlement agreement. Id. 

Here, the parties have provided relevant information regarding the operator’s lack of 

knowledge to support a reduction in negligence from moderate to low. We conclude that the 

facts alleged by the parties are sufficient to establish that the penalty reduction is fair, reasonable, 

6

 The section 104(b) order was a separate enforcement action with its own issuance 

number (Order No. 9282166). S. Br. at 2 & Ex. A. Although the operator could have chosen to 

contest the order, it did not. The Commission has held that Commission jurisdiction attaches 

upon contest. Black Beauty, 34 FMSHRC at 1862 n.4. 

7

 Although the Judge noted that the penalty reduction related to Citation No. 9282123 

was based upon a reduction in negligence, the Judge did not evaluate the facts against the 

AmCoal standard. 44 FMSHRC at 622 n.1. 

45 FMSHRC Page579
appropriate under the facts, and protects the public interest.8

 The settlement involved a modest 

reduction in penalty, and the parties provided sufficient facts to support that penalty reduction. 

Accordingly, we reverse the Judge’s denial of the motion to approve settlement, and we hereby 

approve the settlement. 

III. 

Conclusion

For the foregoing reasons, we reverse the Judge’s denial of the motion to approve 

settlement, and we approve the settlement. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

8

 We note that the following principle–ensuring that the public interest is adequately 

protected by the reduction of a penalty in settlement–does not require a determination of whether 

the proposed settlement best serves the public interest. Shemwell, 36 FMSHRC at 1103-04. 

Rather, we consider whether the proposed settlement is “within the reaches of public interest.” 

Id. at 1104 (quotations omitted and emphasis added). 

45 FMSHRC Page580
Distribution: 

Tracy E. Wolf, Esq. 

Office of the Solicitor 

U.S. Department of Labor, Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Wolf.tracy.e@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor, Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor, Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Gregory Q. Jensen 

Perry County Resources, LLC 

P.O. Box 606 

Fishers, IN 46038 

GQJ@AmericanResourcesCorp.com

Administrative Law Judge William Moran 

Federal Mine Safety Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

wmoran@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

45 FMSHRC Page581
Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page582
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

July 28, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 on behalf of VICTOR TORRES 

 

 v. 

W.G. YATES & SONS 

 CONSTRUCTION COMPANY 

 

Docket No. WEST 2023-0256-DM 

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

 

DECISION

BY THE COMMISSION: 

 This temporary reinstatement proceeding arises under the Federal Mine Safety and 

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

Labor filed an Application for Temporary Reinstatement on behalf of Victor Torres against W.G. 

Yates & Sons Construction Company (“Yates”) pursuant to section 105(c)(2) of the Act, 30 

U.S.C. § 815(c)(2). On July 6, 2023, the Administrative Law Judge issued an Order Granting 

Application for Temporary Reinstatement and Order Tolling Temporary Reinstatement, in which 

he found that Torres’s complaint was non-frivolous but the remedy of temporary reinstatement 

was not available due to layoffs at the facility. 45 FMSHRC __, No. WEST 2023-0256-DM (July 

6, 2023) (ALJ). The Secretary subsequently filed a timely petition for review of the Judge’s 

order, directed at the tolling issue. For the reasons that follow, we grant the petition, and vacate 

and remand the part of the Judge’s order addressing tolling. 

I.

Factual and Procedural Background 

A. Factual Background 

Victor Torres worked as a journeyman millwright and welder for W.G. Yates and Sons 

Construction Company, which had been contracted by MP Materials Corporation to build a rare 

earth minerals processing facility in Mountain Pass, CA. Due to the secretive nature of the 

project, unauthorized photos were prohibited on the mine site. Torres testified that on April 10, 

2023, his crew was tasked with using a manlift to bring pipe down from an elevated track. Torres 

believed this was unsafe and requested the use of a crane instead. The crew was instructed to 

proceed with the manlift. When Torres refused, he states that he was threatened with removal. 

The crew proceeded with the manlift, and Torres took photos to include in a report regarding the 

incident. Mine management informed Torres that taking photos was against policy, but he was 

45 FMSHRC Page583
not disciplined at that time. He was subsequently laid off on April 13, 2023. See 45 FMSHRC 

__, slip op. at 2-5 (summary of Torres’s testimony). 

Around this time (April 2023) construction began to slow and the operation began 

downsizing. By the time of the hearing (June 2023) construction was nearly complete and the 

number of employees had decreased significantly. Testimony from various witnesses indicates 

that the project employed over 100 millwrights at its peak, which decreased to approximately 14 

millwrights by April 2023 and three to five millwrights (and no welders) by June 2023. Id. at 2, 

6, 7, 9. Yates’s witnesses testified that personnel decisions regarding the layoffs were based on 

the millwright superintendent’s working knowledge of the employees rather than an objective 

formula or ranking system. They stated that Torres was included in the April 13 layoff because 

there was no more structural welding work, he did not have the qualifications for the remaining 

millwright work, and the other millwrights did not have his issues with absenteeism. Id. at 6-11. 

Torres filed a discrimination complaint with the Department of Labor’s Mine Safety and 

Health Administration (“MSHA”) alleging that he was discharged due to his safety complaint 

and work refusal. App. for Temp. Reinstatement, Ex. A. The Secretary determined that Torres’s 

complaint was not frivolous, and on June 2, 2023, filed an application requesting that an Order of 

Temporary Reinstatement be issued directing Yates to reinstate Torres to the same or similar 

position he occupied prior to his discharge. App. for Temp. Reinstatement at 3. A hearing was 

subsequently scheduled for June 28, 2023. 

On June 27, the day prior to the scheduled hearing, Yates filed a Hearing Brief stating 

that it would rely on the “affirmative defense of changed circumstances, such as layoffs . . . as 

part of the hearing on Applicant’s Application for Temporary Reinstatement.” Yates’s Hr’g Br. 

at 1. The Secretary filed a Response in Opposition, arguing in part that affirmative defenses 

should not be weighed at temporary reinstatement hearings and that the brief was untimely 

because it did not provide the Secretary with adequate time to respond. Sec’y Opp. at 2. 

The hearing was held on June 28, 2023. The Judge made a preliminary ruling allowing in 

evidence regarding layoffs. Tr. 13. Both parties addressed tolling in their closing arguments. Tr. 

208-09, 212-14. 

B. The Judge’s Order and Arguments on Appeal 

In a July 6, 2023 Order, the Judge granted the Secretary’s application for temporary 

reinstatement. He found that Torres engaged in protected activity, that Yates’s management 

knew of the protected activity on the day it occurred, and that Torres was discharged three days 

later. The Judge also found indications of animus toward Torres due to his protected activity. 

Given management’s knowledge of the protected activity, the temporal proximity between the 

activity and Torres’s discharge, and the evidence of animus, the Judge concluded that the 

Secretary’s section 105(c)(2) complaint was not frivolously brought. Slip op. at 13. 

However, the Judge also found that temporary reinstatement was not an immediately 

available remedy. Slip op. at 14. The Judge overruled the Secretary’s objection to Yates’s 

evidence regarding layoffs. Slip op. at 13-14 n.27. He found that Yates’s witnesses provided 

credible, undisputed testimony that Torres would not have been one of the remaining millwrights 

still working as of the date of the hearing, that one of the currently employed millwrights would 

45 FMSHRC Page584
have to be laid off to accommodate Torres’s reemployment, and that there was no work for 

structural welders at the time of the hearing. Slip op. at 15-16. He concluded that the operator 

“demonstrated by a preponderance of the evidence, almost all of which was undisputed, that 

Torres would have been properly included in one of the many rounds of layoffs that occurred 

after April 13, 2023.” Slip op. at 16. Accordingly, he ordered that Torres’s temporary 

reinstatement be tolled. 

On appeal, the Secretary seeks review of the part of the Judge’s order tolling temporary 

reinstatement. The Secretary claims the Judge erred by considering Yates’s tolling argument, 

both because tolling is outside the proper scope of a temporary reinstatement hearing and 

because the Secretary was prejudiced by the short time frame. Alternatively, the Secretary claims 

the Judge applied the wrong standard of review to the tolling argument. The Secretary requests 

that the Commission reverse and remand for further proceedings.

II.

Disposition 

 The Commission has long recognized that the “fundamental requirement of due process 

is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Matthews v. 

Eldridge, 424 U.S. 319, 333 (1976), cited in, e.g., Scott, emp. By Mill Branch Coal Corp., 42 

FMSHRC 481, 488-89 (Aug. 2020); Jones v. D&R Contractors, 8 FMSHRC 1045, 1051-52 

(July 1986). For the reasons below, we find that the Secretary was denied a meaningful 

opportunity to respond to Yates’s tolling argument. 

 Applications for temporary reinstatement are handled on an expedited schedule. See 29 

C.F.R. § 2700.45. Here, the Secretary filed the application for temporary reinstatement on June 

2, 2023, and Yates requested a hearing on June 12. The Judge informed the parties that the 

primary issue at the hearing would be “whether Mr. Torres’s complaint of discrimination was 

frivolously brought,” directed the parties to provide names of any witnesses by June 21, and 

scheduled the hearing for June 28. Unpublished Order dated June 14, 2023. 

On June 27, Yates filed a brief stating that the Commission has recognized changed 

circumstances as a defense that can toll temporary reinstatement, and that it would rely on this 

affirmative defense to show at hearing that there was no job for Torres to return to because the 

construction project for which he was hired was largely complete.1

 Yates Hr’g Br. at 1-2. 

The Secretary filed a same-day objection, claiming in part that she did not have adequate 

time to respond to the tolling argument. Sec’y Opp. at 2. The hearing occurred the next day as 

scheduled. The Judge overruled the Secretary’s objection to the introduction of evidence 

regarding Yates’s defense (Tr. 11-14) and subsequently issued an order finding that Torres was 

1

 We note that the cited changed circumstance was not a particularly recent development. 

Yates’s witnesses indicated that downsizing had been underway for months. If Yates had raised 

the tolling issue when it filed a hearing request on June 12, or even by the Judge’s June 21 

deadline, this could have been a different case. See Sec’y on behalf of Anderson v. A&G Coal 

Corp., 39 FMSHRC 165, 169 (Jan. 2017) (ALJ), aff’d 39 FMSHRC 315 (Feb. 2017) (no issue of 

prejudice raised where the operator filed a motion to toll eight days before the hearing). 

45 FMSHRC Page585
entitled to temporary reinstatement, but that temporary reinstatement should be tolled because no 

work was available for Torres. 

In summary, until Yates’s filing on June 27, the Secretary reasonably expected the June 

28 hearing to focus on whether Torres’s underlying discrimination complaint was frivolously 

brought. By permitting Yates to address its affirmative defense at the hearing, the Judge gave the 

Secretary less than 24 hours to marshal arguments and evidence regarding a new issue. 

Generally, to show a due process violation, a party must show that he or she has sustained 

prejudice, i.e., that the party would have litigated the matter differently if adequate notice had 

been received. Brody Mining, LLC, 37 FMSHRC 1914, 1927 (Sept. 2015); Cumberland Coal 

Res., LP, 32 FMSHRC 442, 447-49 (May 2010). Here, the Secretary identifies one area of the 

case that would have been litigated differently with adequate notice; she indicates that with more 

time, she could have introduced evidence to counter Yates’s claim that a millwright would have 

to be laid off for Torres to be reinstated. Sec’y Pet. at 16. Beyond this, the Secretary is unable to 

identify specific witnesses or lines of argument. However, this seems to be an inevitable result of 

the specific harm caused by the lack of time. With less than 24 hours’ notice, the Secretary 

simply did not have the time to locate witnesses or prepare a litigation strategy.2 See Sec’y on 

behalf of Overfield v. Highland Mining Co. LLC, 36 FMSHRC 1659, 1675 (June 2014) (ALJ) 

(finding the Secretary had no reasonable time to call into question the objectivity of a layoff 

where Secretary’s counsel did not receive copies of the layoff documentation until the hearing). 

Significantly, the Judge’s order tolling temporary reinstatement relies almost exclusively 

on the “undisputed” testimony of Yates’s two witnesses, Jimmy Hayes and Bryan French. Slip 

op. at 15-16. We question whether testimony is truly “undisputed” when the Secretary had less 

than 24 hours to prepare for cross-examination on the relevant issue and no practical opportunity 

to locate additional witnesses who may have been able to provide contrary testimony. Yates’s 

tolling evidence was undisputed essentially by default, because the Secretary had no meaningful 

opportunity to dispute it.3 

The Commission stresses that it takes no position on what conclusions the Judge should 

reach regarding the evidence presented on remand. Instead, we simply note that this is a case 

where providing the Secretary with a meaningful opportunity to address the tolling issue could

have impacted the weight of evidence sufficiently to change the outcome of the Judge’s order. 

We find the Judge erred when he considered Yates’s motion to toll at the initial 

temporary reinstatement hearing, prior to providing the Secretary a meaningful opportunity to 

investigate and respond to the tolling issue raised in Yates’s June 27 Brief. 4 Accordingly, we 

2

 We also note that the Secretary had only five business days to file her petition for 

review. 29 C.F.R. § 2700.45(f). 

3

 As a comparison, there may have been no due process concerns if the Judge had based 

his tolling order on facts contained in joint stipulations. 

4

 The Secretary claims it is always inappropriate to consider tolling arguments at an 

initial temporary reinstatement hearing, because Procedural Rule 45(d) limits the scope of such 

(continued...) 

45 FMSHRC Page586
vacate the Judge’s order tolling temporary reinstatement and remand for further proceedings, 

where the Secretary will have the opportunity to present further argument and evidence on the 

tolling issue, including the proper standard of review. Yates shall also have the opportunity to 

present rebuttal evidence in the event of further development of the record. 

III. 

Conclusion 

For the reasons discussed above, we vacate the Judge’s order tolling Torres’s temporary 

reinstatement and remand for further proceedings consistent with this decision. 

/s/ Mary Lu Jordan 

 Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

4

 (...continued) 

hearings to whether the miner’s complaint was frivolously brought. We note that we have 

previously rejected this argument. Sec’y on behalf of Ratliff v. Cobra Natural Res., LLC, 35 

FMSHRC 394, 397 (Feb 2013). Regardless, as we are remanding on different grounds, thus 

providing the parties with the opportunity to present evidence on tolling outside of the initial 

temporary reinstatement hearing as well as the opportunity to present further legal arguments 

regarding tolling in the temporary reinstatement context, we need not address this legal argument 

here. As a practical matter, however, we note that in this instance separating the tolling issue 

from the temporary reinstatement hearing would have provided the Secretary with a meaningful 

opportunity to respond. 

45 FMSHRC Page587
Distribution: 

McCord Wilson, Esq. 

Rader and Campbell 

2777 N. Stemmons Freeway, Suite 1125 

Dallas, TX 75207 

mwilson@radercampbell.com 

Susannah M. Maltz, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Maltz.susannah.m@dol.gov 

Natasha Magness, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

300 Fifth Avenue, Suite 1120 

Seattle, WA 98104 

Magness.natasha.a@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

Civil Penalty Compliance Division Chief 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

45 FMSHRC Page588
Chief Administrative Law Judge Glynn F. Voisin 

Office of the Chief Administrative Law Judge 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Administrative Law Judge Richard W. Manning 

Office of the Chief Administrative Law Judge 

Federal Mine Safety Health Review Commission 

721 19th Street, Suite 443 

Denver, CO 80202-2536 

RManning@fmshrc.gov 

45 FMSHRC Page589

COMMISSION ORDERS
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

July 6, 2023 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of JASON HARGIS 

v. 

VULCAN CONSTRUCTION 

MATERIALS, LLC 

JASON HARGIS 

v. 

VULCAN CONSTRUCTION 

MATERIALS, LLC 

 

Docket No. SE 2021-0163 

Docket No. SE 2022-0001 

Docket No. SE 2022-0013 

ORDER FOR SUPPLEMENTAL BRIEFING 

These proceedings all involve cross-petitions for discretionary review by the Secretary of 

Labor (“Secretary”), Vulcan Construction Materials, LLC (“Vulcan”), and a miner, Jason Hargis 

(“Complainant”). On January 9, 2023, the Commission granted all three petitions for 

discretionary review. On January 20, 2023, the Commission consolidated the cases and set forth 

a briefing order. Since the filing of the parties’ briefs, however, the Commission has noticed an 

issue not previously briefed by the parties. 

The issue involves the interaction between two sections of the Mine Act. Specifically, 

section 105(c)(2) authorizes temporary reinstatement pending “the final order on the complaint” 

and instructs that the “order shall become final upon 30 days after [the] issuance” of the decision. 

30 U.S.C. § 815(c)(2) (emphasis added). 

Section 113(d)(1) of the Act states that “[t]he decision of the administrative law judge of 

the Commission shall become the final decision of the Commission 40 days after its issuance 

unless within such period the Commission has directed that such decision shall be reviewed by 

the Commission . . . .” 30 U.S.C. § 823(d)(1) (emphasis added). 

Thus, the issue in calculating the final order date for ending temporary reinstatement 

concerns the applicability and interaction of the 30-day language in section 105(c)(2) and the 40-

day language in section 113(d)(1). 

45 FMSHRC Page 590
As a result, the Commission requests supplemental briefing on the calculation of a “final 

order” date for temporary reinstatement purposes given section 105(c)(2) and section 113(d)(1). 

The briefs of the parties shall be filed within 14 days of the date of this order and shall not 

exceed 15 pages in length. 

/s/ Mary Lu Jordan 

 Mary Lu Jordan, Chair 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

45 FMSHRC Page 591
Distribution: 

Emma P. Cusumano, Attorney 

April E. Nelson, Associate Solicitor 

Emily Toler Scott, Counsel for Appellate 

Litigation Office of the Solicitor, U.S. Department 

of Labor Division of Mine Safety & Health 

201 12th Street South, Ste. 401 

Arlington, VA 22202 

Cusumano.emma.p@dol.gov 

Nelson.April@dol.gov 

scott.emily.t@dol.gov 

Christopher M. Smith, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

618 Church Street, Suite 230 

Nashville, TN 37219 

smith.christopher.m@dol.gov 

Elaine M. Youngblood, Esq. 

Ortale Kelley 

330 Commerce Street, Suite 110 

Nashville, TN 37201 

eyoungblood@ortalekelley.com 

Margaret S. Lopez, Esq. 

William K. Doran, Esq. 

Ogletree, Deakins, Nash, Smoak & Stewart, PC 

1901 K Street NW, Suite 1000 

Washington, DC 20006 

margaret.lopez@ogletree.com 

william.doran@ogletree.com 

Chief Administrative Law Judge Glynn F. Voisin 

Office of the Chief Administrative Law Judge 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Administrative Law Judge Michael Young 

Office of the Chief Administrative Law Judge 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

myoung@fmshrc.gov 

45 FMSHRC Page 592
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

July 11, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

HIGHWAY MATERIALS, INC. 

 

Docket No. PENN 2023-0003 

A.C. No. 36-00128-556080 

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

 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). On October 6, 2022, the Commission received from Highway 

Materials, Inc. (“Highway Materials”) 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 3, 2022, and became a 

final order of the Commission on July 5, 2022. 

45 FMSHRC Page 593
Highway Materials alleges that on December 8, 2021, its Safety Coordinator “contested” 

Citation Nos. 9660855, 9660858, and 9660854 by requesting a conference with an MSHA 

Conference Litigation Representative (“CLR”). The conference took place on March 3, 2022, 

and the CLR informed the operator that he would subsequently inform the operator of his 

findings regarding the citations. The operator subsequently received a proposed assessment dated 

June 1, 2022, proposing civil penalties for the three citations. On June 9, 2022, Highway 

Materials contacted MSHA about the conference results. The operator did not receive a response 

from MSHA until August 17, 2022. On August 17, Material Highways received a “conference 

results letter” indicating that the citations should remain as issued. On August 18, MSHA mailed 

a delinquency notice to Highway Materials. 

The operator states that it believed that it had 30 days from the date of the conference 

results letter to submit a contest of the proposed penalties, and filed a contest on September 8, 

2022, with the Commission. After MSHA eventually received a copy of Highway Material’s 

contest, it informed the operator by email dated September 21, 2022, that the contest was 

untimely. 

Contrary to Highway Material’s belief, a contest of proposed penalties must be filed with 

MSHA, rather than the Commission, within 30 days of the operator’s receipt of the proposed 

penalty assessment, rather than receipt of the conference results letter.1

 30 U.S.C. § 815(a); 29 

C.F.R. § 2700.26. The Secretary does not oppose the request to reopen but urges the operator to 

take steps to ensure that future penalty contests are timely filed in accordance with MSHA’s 

regulations at 30 C.F.R. § 100.7 and the Commission’s procedural rules. 

 Having reviewed Highway Material’s request and the Secretary’s response, we find there 

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

Keystone Cement Co., 32 FMSHRC 1040 (Sept. 2010); Hanson Aggregates Midwest, LLC, 31 

FMSHRC 1292 (Nov. 2009); South Ridge Granite Quarry, 31 FMSHRC 873 (Aug. 2009). We 

find that Highway Materials acted diligently in attempting to discern the status of the penalties 

and promptly in filing its motion to reopen upon discovery of its error. The operator’s good faith 

is demonstrated by its extensively documented contacts with MSHA and the Secretary’s nonopposition. In the interest of justice, we hereby reopen this matter and remand it to the Chief 

 

1 As the Secretary noted in her response, notices of contests of proposed penalties should 

be mailed to MSHA’s Civil Penalty Compliance Office, 201 12th Street South, Suite 401, 

Arlington, VA 22202.

45 FMSHRC Page 594
Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

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

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

See 29 C.F.R. § 2700.28. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

45 FMSHRC Page 595
Distribution: 

Brian N. Sheehy 

Safety Manager 

Highway Materials, Inc. 

409 Stenton Avenue 

Flourtown, PA 19031 

Brian.sheehy@depaulgroup.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 596
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

July 11, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

VULCAN ELECTRICAL SERVICES

 

Docket No. SE 2023-0014 

A.C. No. 38-00010-561545 

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

 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). On October 21, 2022, the Commission received from Vulcan 

Electrical Services (“Vulcan”) a motion seeking to reopen a penalty assessment that had become 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on August 29, 2022, and became 

a final order of the Commission on September 28, 2022. 

45 FMSHRC Page 597
Vulcan explains that a new administrative assistant received the proposed penalty 

assessment but did not understand the significance of the timing for filing a contest. 

Consequently, the assistant did not forward the proposed penalty assessment to the Director of 

Safety until October 20, 2022. Vulcan provided training regarding the 30-day contest period to 

the administrative assistant to ensure that future contests are timely. The operator filed the 

motion to reopen one day after the error was discovered. The Secretary does not oppose the 

request to reopen but urges the operator to take steps to ensure that future penalty contests are 

timely filed in accordance with MSHA’s regulations at 30 C.F.R. § 100.7 and the Commission’s 

procedural rules. 

 Having reviewed Vulcan’s request and the Secretary’s response, and in light of the 

operator’s prompt filing of a motion to reopen and the operator’s actions to correct the issue, we 

find that the delay in filing the penalty contest was the result of inadvertence and excusable 

neglect. 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/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

45 FMSHRC Page 598
Distribution: 

William K. Doran, Esq. 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 

1909 K Street, N.W., Suite 1000 

Washington, D.C. 20006 

william.doran@ogletreedeakins.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 599
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

July 11, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

EAGLE ROCK, INC. 

 

Docket No. WEST 2023-0012 

A.C. No. 04-04900-559854 

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

 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). On October 18, 2022, the Commission received from Eagle 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on August 8, 2022. On 

September 7, 2022, the proposed assessment became a final order of the Commission. On 

October 12, MSHA received a partial payment of the assessment for 10 of the 14 citations listed 

on the assessment. 

45 FMSHRC Page 600
Eagle asserts that it believed that its contest of the penalty assessment was due by 

September 9, 2022, two days after the assessment became a final order. The operator states that 

when it contacted MSHA’s Civil Penalty Compliance Office, it was advised that the contest was 

late, and that Eagle would receive correspondence regarding the untimeliness. On October 11, 

2022, after having failed to receive the correspondence, Eagle again contacted MSHA and 

subsequently received the letter by email. On that same date, the operator paid 10 of the 14 

proposed penalties listed on the proposed penalty assessment. 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 Eagle’s request and the Secretary’s response, we find that the delay in 

filing the penalty contest was the result of mistake, satisfying the criteria of Rule 60(b). In the 

interest of justice, we hereby reopen the penalties associated with Citation Nos. 9507582, 

9507586, 9507589, and 9507592 and remand this matter it to the Chief Administrative Law 

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

45 FMSHRC Page 601
Distribution: 

Sherrie Zappola 

Office Manager 

P.O. Box 1498 

Weaverville, CA 96093 

Eaglerockest.1980@aol.com 

Larry E. Yingling 

President 

P.O. Box 1498 

Weaverville, CA 96093 

Eaglerockest.1980@aol.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 602
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

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

WASHINGTON, DC 20004-1710 

July 11, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

CSI SANDS NE, LTD. 

Docket No. YORK 2023-0003 

A.C. No. 30-03261-548285 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). On October 6, 2022, the Commission received from CSI Sands 

NE, Ltd. (“CSI”) 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 14, 2022, and 

became a final order of the Commission on February 14, 2022. CSI states that it was dealing 

with extraordinary circumstances involving a complete reconstruction of its facility, an 

employee’s injury, a natural gas supply failure, and a change in management. CSI explains that 

45 FMSHRC Page 603
the reconstruction of its facility strained its staff. After the proposed assessment was delivered to 

the mine supervisor, the mine supervisor accepted another job offer. CSI explains that due to 

these circumstances, it filed its proposed penalty contest twelve days late. The operator states 

that its new manager has a history of successful mine operation and will ensure that the mine 

addresses any proposed penalty assessments in a timely manner. 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 CSI’s request and the Secretary’s response, we find that the relatively 

brief delay in filing the notice of contest was the result of excusable neglect arising from unusual 

circumstances and staff disruption. 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/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

45 FMSHRC Page 604
Distribution: 

Sean S. Kelly, Esq. 

Ross, Brittain & Schonberg Co., L.P.A. 

6480 Rockside Woods Blvd. South 

Suite 350 

Cleveland, OH 44131 

skelly@rbslaw.com 

Brian K. Brittain, Esq. 

Ross, Brittain & Schonberg Co., L.P.A. 

6480 Rockside Woods Blvd. South 

Suite 350 

Cleveland, OH 44131 

bbrittain@rbslaw.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 605
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

July 18,2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

CALLENDER CONSTRUCTION 

COMPANY, INC. 

 

Docket No. LAKE 2020-0189-M 

A.C. No. 11-00214-494016 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). The Secretary states that he does 

not oppose the motion. 

 

45 FMSHRC Page 606
Having reviewed movant’s unopposed motion to reopen, we 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. 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. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

45 FMSHRC Page 607
Distribution: 

Bruce Callender, President 

Callender Construction Company, Inc. 

928 West Washington Street 

Pittsfield, IL 62363 

calconst928@yahoo.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Melanie Garris, Chief 

Office of Civil Penalty Compliance 

U.S. Department of Labor 

Office of Assessments 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW, Suite 520 N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 608
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

July 18, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 

 v. Docket No. WEVA 2022-0470 

 A.C. No. 46-09297-552215 

BLUE CREEK MINING, LLC 

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

ORDER 

BY THE COMMISSION: 

 

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

§ 801 et seq. (2012) (“Mine Act”). On July 18, 2022, the Commission received from Blue Creek 

Mining, LLC 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), 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). 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicates 

that the proposed assessment was delivered to the operator on April 8, 2022. The assessment 

became a final order of the Commission on May 9, 2022, and MSHA issued a delinquency notice 

on June 23, 2022. 

45 FMSHRC Page 609
Blue Creek states that it is unclear exactly when it received the proposed assessment but 

notes that near the deadline to file the notice of contest in this case, its Corporate Safety Director, 

who usually files notices of contest, left the company on April 22, 2022. It contends that the 

outgoing Director did not file the required notice of contest, nor did he notify any other 

employee of the impending deadline. When a paralegal for Blue Creek learned of the oversight, 

the operator quickly retained counsel to file the required contest. Blue Creek has not filed any 

other motions to reopen with the Commission in the last two years.1

 The Secretary does not 

oppose the request to reopen but urges the operator to take steps to ensure that future penalty 

contests are timely filed in accordance with MSHA’s regulations at 30 C.F.R. § 100.7 and the 

Commission’s procedural rules. 

1

 Blue Creek’s motion reflects that it relied on the same corporate personnel to file 

notices of contests of proposed civil penalties as Rockwell Mining, LLC, a separate subsidiary of 

Blackhawk Mining, LLC. On June 29, 2023, the Commission issued an Order noting that 

Rockwell’s recent history of filing motions to reopen, if considered cumulatively, “may indicate 

an inadequate or unreliable internal processing system.” Rockwell Mining, LLC, Order at 3. The 

Commission thus warned Rockwell that it “will closely scrutinize any future motions to reopen 

. . . for signs of an inadequate processing system.” Id. Because the two subsidiaries rely on 

the same processes and personnel, Blue Creek is now also on notice. 

45 FMSHRC Page 610
Having reviewed Blue Creek’s request and the Secretary’s response, we find that due to 

mistake, inadvertence or excusable neglect the penalty assessment was not timely contested. See 

Noranda Alumina, LLC, 39 FMSHRC 441, 445 (Mar. 2017) (when the safety director left the 

company unexpectedly, the failure to timely contest constituted an inadvertent mistake). 

Moreover, we note that Blue Creek promptly filed its motion to reopen upon notification that the 

penalties were delinquent. 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/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

45 FMSHRC Page 611
Distribution: 

Jonathan R. Ellis, Esq. 

Colton C. Parsons, Esq. 

Steptoe & Johnson PLLC 

707 Virginia Street East, Chase Tower, 17th Floor 

Charleston, WV 25301 

jonathan.ellis@steptoe-johnson.com 

colton.parsons@steptoe-johnson.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 612
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

July 27, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

CONSOL MINING COMPANY LLC

 

Docket No. WEVA 2023-0141 

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

 

ORDER

BY THE COMMISSION: 

 This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2018) (“Mine Act”). On July 7, 2023, the Administrative Law Judge assigned to this 

matter issued an order granting certification of questions for interlocutory review. 

45 FMSHRC Page 613
Pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, the Commission may 

review a Judge’s ruling, prior to the Judge’s final decision in the case, if certain conditions are 

met. This includes a Judge certifying that his interlocutory ruling involves a controlling question 

of law and that immediate review will materially advance the final disposition of the proceeding. 

We find that the qualifications contained in Procedural Rule 76, 29 C.F.R. § 2700.76, 

have been met, and hereby GRANT interlocutory review. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

45 FMSHRC Page 614
Distribution: 

Emily Toler Scott 

Counsel for Appellate Litigation 

U.S. Department of Labor 

Office of the Solicitor 

Division of Mine Safety & Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov

Robert S. Wilson 

Office of the Solicitor 

U.S. Department of Labor, MSHA 

201 12th Street, Suite 401 

Arlington, VA 22202 

wilson.robert.s@dol.gov

D. Cass Trent, CLR 

U.S. Department of Labor, MSHA 

4499 Appalachian Hwy 

Pineville, WV 24874 

trent.david@dol.gov

Jim McHugh 

Hardy Pence LLC 

10 Hale Street, 4th Floor 

P.O. Box 2548 

Charleston, WV 25329 

jmchugh@hardypence.com

Craig Aaron 

CONSOL Energy Inc. 

275 Technolgy Drive, Suite 101 

Canonsburg, PA 15317 

craigaaron@consolenergy.com

Michael G. Young 

Administrative Law Judge 

Federal Mine Safety and Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Ave, NW, Suite 520N 

Washington, DC 20004 

myoung@fmshrc.gov

45 FMSHRC Page 615

ADMINISTRATIVE LAW JUDGE DECISIONS
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

Telephone: 202-434-9933 / Fax 202-434-9949 

July 3, 2023 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING: 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. WEVA 2023-0214 

 Petitioner A.C. No. 46-01437-571004 

 

 v. 

MARSHALL COUNTY COAL, Mine: Marshall County Mine 

 RESOURCES, INC., 

 Respondent 

DECISION APPROVING SETTLEMENT 

Before: Judge Moran 

This case is before the Court upon a Petition for 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 

Conference and Litigation Representative (“CLR”), who is not an attorney,1 has filed a motion to 

approve settlement. A fifty-six percent reduction in the penalty from $8,239.00 to $3,660.00 is 

proposed. The settlement amounts and the one modification to a citation are as follows: 

Citation 

No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modification 

WEVA 2023-0214 

9581075 $2,561.00 $1,453.00 Reduce Monetary Penalty Only 

43% reduction in penalty 

9581076 $1,858.00 $1,055.00 Reduce Monetary Penalty Only 

Another 43% penalty reduction 

9581077 $3,820.00 $1,152.00 

Modify Severity from "Fatal" to "Lost 

Workdays or Restricted Duty" 

70 % reduction in penalty 

Total $8,239.00 $3,660.00 

56% overall drop in penalty from the 

regularly assessed amount 

MSHA inspector Cody John Tominack, diligently performing his inspection 

responsibilities, found the three, now admitted, violations involved with this docket. 

1 None of the “CLRs” are attorneys. As such they are not licensed to practice law. 

45 FMSHRC Page 616
Analysis 

 As in this instance, the Secretary often touts in settlements that the modifications to some 

citations result “only” in a monetary reduction. Congress was not so cavalier about penalty 

reductions. Instead, it clearly expressed that penalties were to be of a sufficient order that noncompliance would be more expensive than compliance. As the Commission remarked in Davis 

Coal, 2 FMSHRC 619 (March 1980), “[i]n constructing the 1977 Act, Congress paid 

significant attention to penalties, noting its dissatisfaction with the low settlements of 

penalties under the 1969 Coal Act. Section 110(k)8 was therefore made a part of the 1977 Act, 

in order that penalties, mandatory under the 1977 Act, would not be compromised, mitigated or 

settled except with the approval of the Commission. As detailed in the Senate Report, the 

Congress stated: ‘In short, the purpose of a civil penalty is to induce those officials 

responsible for the operation of a mine to comply with the Act and its standards.’ To be 

successful in the objective of including (inducing) effective and meaningful compliance, a 

penalty should be of an amount which is sufficient to make it more economical for an 

operator to comply with the Act's requirements than it is to pay the penalties assessed and 

continue to operate while not in compliance.” Id. at 625. (emphasis added). 

 With both citations 9581075 and 9581076 resulting in 43% reductions in the penalty

assessed, the Secretary simultaneously stands by the issuing inspector’s evaluations, an 

incongruous result is produced. Such arrangements lay bare that the mine operator’s focus is on 

the penalty amounts, not the evaluations of gravity or negligence. And this makes sense because 

penalties are not tax deductible. Treasury Regulation 26 C.F.R. § 1.162-21 (2021). A reduction 

in civil penalties is therefore a tax savings, as such penalties as are imposed constitute a non-taxdeductible financial burden. In short, lower penalties benefit mine operators because it reduces 

their tax obligations 

Citation No. 9581075; Failure to maintain equipment in safe operating condition, as 

required by 30 C.F.R. § 75.1725(a).

 This citation, issued on December 15, 2022, stated that 

[t]he number 14464 feeder located at the 4 West seal construction area was not 

maintained in a safe operating condition. When inspected the shut off cable that 

stretches over the feeders chain could not activate the emergency stop button

when pulled from any angle. When tested the rusted spring would hold the metal 

flap a measured 1.5 inches from pressing the emergency stop button. This could 

result in crushing injuries if a miner would fall into the mouth of the feeder. 

Petition for civil penalty at 5. (emphasis added) 

 The cited standard, 30 C.F.R. § 75.1725(a), requires that “Mobile and stationary 

machinery and equipment shall be maintained in safe operating condition and machinery or 

equipment in unsafe condition shall be removed from service immediately.” This standard was 

cited 10 times in two years at this mine (10 to the operator, 0 to a contractor).” 

45 FMSHRC Page 617
 The motion seeks to have the negligence reduced to ‘low,’ meaning considerable 

mitigating circumstances must be present. The operator asserts it was unaware of the condition; 

that the coal feeder was not in service at the time of the citation’s issuance, and that the last 

weekly electrical exam, conducted on December 12, 2022, indicated that the condition did not 

exist at that time. That the operator was ‘unaware,’ does not constitute considerable mitigation. 

The claim that the feeder was not in service counts for nothing in any negligence evaluation, as it 

doesn’t even amount to the rejected “alternative safety measures” roundly rejected by United 

States Courts of Appeals. Further, there is no claim that the equipment was tagged out. 

Last, the claim that the condition didn’t exist three days earlier is not credible, as a rusted spring 

would not develop in three days’ time. Inferentially, the Secretary agrees with these 

observations, as she stands by the inspector’s evaluation in all respects, including negligence. 

Motion at 3. 

 Given the above, it is disconcerting that the Secretary would still agree to such an 

enormous penalty reduction of 43% for this violation, especially given that, per the inspector’s 

unchallenged determination that fatal crushing injuries could result if a miner were to fall into 

the mouth of the feeder. 

Citation No. 9581076; Failure to adhere to safeguard notice, per 30 C.F.R. § 

75.1403, a statutory provision, which safeguards are designed to minimize hazards with 

respect to transportation of men and materials 

 This citation, also issued on December 15, 2022, invokes, as noted above, the safeguard 

standard, 30 C.F.R. § 75.1403. The condition stated: 

[t]he clearance space along the 5 north 1 and 2 track haulage was not kept clear of 

loose rock and debris. A move was observed dragging and rubbing loose 

materials along the rails and in between the rails. Debris consisting of crushed 

stone was above the rail from Grapevine bottom to 58 crosscut on the North main 

line. The track clearance space needs cleaned of all debris. 

Petition for civil penalty at 7. (emphasis added). 

 As with the citation discussed above, here too the operator seeks to have the negligence 

cast as ‘low.’ The operator asserts that the preshift exam did not reflect the problem, suggesting 

that it did not then exist. Also, the operator contends it did not know of the problem. Further, the 

operator stated that a motor crew was delivering a roof bolting 4 machine on a dolly that is 13 

inches lower than a normal supply car, therefore, intermittently contacting material along the 

outer edge of the track bed. Respondent also asserted that that the inspector observed the 

condition being created by the dolly and that normal haulage equipment would not contact the 

material, thus, the cited condition would not be present and would not be deemed a violation by 

the preshift examiner. Motion at 3-4. 

 In this instance, the reasons advanced by the operator to recast the negligence appear 

plausible, although the Secretary’s concession is not to the negligence evaluation listed by the 

inspector. Instead, the Secretary stands by the issuing inspector’s designation that the negligence 

45 FMSHRC Page 618
was high. This is not a surprise as the inspector observed the violation in real time. Given that, it 

is disconcerting that the CLR agreed to a near half-off reduction in the penalty. 

However, that is not the end of the story, as revealed in the third citation in this 

docket, Citation No. 9581077, discussed next. 

 Citation No. 9581077; Violation of 30 C.F.R. §75.360; Failure to conduct a preshift 

examination at within 3 hours preceding the beginning of any 8-hour interval during which 

any person is scheduled to work or travel underground. 

 This citation, as with the two citations just analyzed, was also issued on December 15, 

2022. The now-admitted violation was issued for an alleged violation of §75.360(a)(1). Titled 

“Preshift examination at fixed intervals,” this standard provides that “a certified person 

designated by the operator must make a preshift examination within 3 hours preceding the 

beginning of any 8-hour interval during which any person is scheduled to work or travel 

underground.” 

 Significantly, the citation is inextricably tied to the other two admitted violations in this 

docket. Inspector Tominack spelled this out in his description of the “Condition or Practice” for 

this citation, stating: 

A preshift examination was not being conducted within 3 hours preceding the 

beginning of an 8 hour interval on the 4 West Seal construction area. The 

conditions cited in citations No. 9581074 and No. 9581075, accumulations in 

entire area and emergency stop button not working on feeder. The construction 

area is only operated on day shift. The midnight pre shifter needs to examine the 

area. The construction area had 4 date, time, and initial boards without any 

initials found for 12/15/22. Four miners were in the area working when the 

inspection started. 

Petition for civil penalty at 9. (emphasis added). 

 The Secretary had proposed a civil penalty of $3,820.00 for this violation, but now seeks 

a 70% reduction in the penalty, reducing the penalty from $3,820.00 to $1,152.00. The 

Gravity was evaluated as: Unlikely, Fatal, with 4 Persons Affected. The violation was designated 

as Non-S&S. Negligence was evaluated as high. 

 The operator seeks to have the likely injury or illness dropped two steps down from the 

inspector’s designation of ‘fatal,’ to ‘lost workdays or restricted duty.’ To support that claim, the 

operator asserts that, regarding the other two violations, as just described above, “the condition 

cited in Citation 9581075 and referenced in the body of Citation 9581077 does not apply to 

75.360(a)(1) [preshift exams] [and] Respondent further assert[s] that related citation, [No.] 

9581074,

2 was evaluated as lost workdays or restricted duty.” Motion at 4. 

2 The Court thought that perhaps the reference to 9581074 was a typographical error but 

the response from the CLR indicated there was no such error. 

45 FMSHRC Page 619
 The Commission has spoken in unambiguous terms about the vital importance of preshift 

exams, stating: 

The preshift inspection requirement is the linchpin of Mine Act safety protections. 

Without a timely preshift inspection, unwary miners may be sent into areas 

containing hazardous conditions. Congress explicitly acknowledged the 

importance of the preshift inspection by making it a longstanding statutory 

mandate, dating back to the Federal Coal Mine Safety Act of 1952, 30 U.S.C. § 

471 et seq. (1955). These provisions were strengthened in the Federal Coal Mine 

Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976), and carried over in 

identical fashion to the Mine Act. The Senate Report on the 1969 Coal Act 

emphasized the importance of these inspections, stating that “[c]hanges occur so 

rapidly in the mines that it is imperative that the examinations be made as near as 

possible to the time the workmen enter the mine.” S. Rep. 411, 91st Cong., 1st 

Sess. 57 (1969), reprinted in Senate Subcommittee on Labor, Committee on 

Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of the 

Federal Coal Mine Health and Safety Act of 1969, at 183 (1975) (“Coal Act 

Legis. Hist.”). 

 

Both the Senate Report and the Conference Report emphasized: 

No miner may enter the underground portion of a mine until the preshift 

examination is completed, the examiner’s report is transmitted to the surface and 

actually recorded, and until hazardous conditions or standards violations are 

corrected. Coal Act Legis. Hist. and 183 and 1610. 

 

In its recent 1996 revision of safety standards for the ventilation of underground 

coal mines, the Mine Safety and Health Administration acknowledged that: 

[t]he preshift examination is a critically important and fundamental safety 

practice in the industry. It is a primary means of determining the effectiveness 

of the mine’s ventilation system and of detecting developing hazards, such as 

methane accumulations, water accumulations, and bad roof. 61 Fed. Reg. 9790 

(1996) ... In Emerald Mines Corp., 7 FMSHRC 437 (March 1985) (ALJ), 

Administrative Law Judge Broderick recognized the importance of the preshift

examination in the arsenal of protections afforded to those working in the mines. 

In holding that the failure to conduct a preshift inspection was S&S, he stated 

that: [t]he whole rationale for requiring preshift examinations is the fact that 

underground coal mines are places of unexpected, unanticipated hazards: roof 

hazards, rib hazards, ventilation and methane hazards. I conclude that failure to 

make the required preshift examination of active workings in an underground coal 

mine contributes to “a measure of danger to safety” which is reasonably likely to 

result in a reasonably serious injury. 7 FMSHRC at 444. This Commission has 

recently had occasion to pronounce the preshift requirement “unambiguous” and 

of “fundamental importance in assuring a safe working environment 

underground.” Buck Creek Coal Co., 17 FMSHRC 8, 15 (January 1995). 

45 FMSHRC Page 620
Manalapan Mining, 18 FMSHRC 1375, 1391-1393 (emphasis added). 

 That was then, this is now. 

 Both contentions offered by the operator are troublesome. As to the first ground, that 

Citation No. 9581075, which was referenced by the Respondent in claiming that the condition 

cited in that citation does not apply to preshift exams, the Secretary, per usual, says nothing 

about the validity of that contention. Case law suggests that the Respondent’s claim is dubious. 

Section 75.360(b)(3) states that the preshift examination is to include “working sections,” 

which are defined as “[a]ll areas of the coal mine from the loading point of the section to and 

including the working faces.” 30 C.F.R. § 75.2. Jim Walter Resources, 28 FMSHRC 579, 599 

(Aug. 2006) 

 The Commission has held that the scope of a preshift exam should be broadly construed 

to avoid anomalous results: 

Given that the statute and regulation require a preshift examination of ‘the active 

workings of a coal mine’ and that coal-carrying conveyor belt entries in which 

miners are normally required to work or travel clearly fall within the definition of 

‘active workings,’ the statute and regulation appear to require coal mine operators 

to conduct a preshift examination of such entries. It would be anomalous if the 

mere addition of coal-carrying conveyor belts to an entry had the effect of 

removing the entry from the scope of the preshift examination requirement. 

Jones and Laughlin Steel, 8 FMSHRC 1058, 1061. 

 The Court of Appeals for the D.C. Circuit reached a similarly broad conclusion in 

Spartan Mining, 415 F.3d 82, 85 (July 22, 2005). 

 A key element in evaluating the scope of preshift examinations is the “work or travel” 

aspect. Here, issuing inspector Tominack stated that in the seal construction area “four miners 

were in the area working when the inspection started.” Petition for civil penalty at 9. 

 As set forth below, the Court’s hands are tied in assessing the claim, as it is not permitted 

to make inquiry about the applicability of the preshift exam in the context of settlement motions. 

 As to the second ground, that a separate citation, No. 9581074, supports the argument 

that the preshift exam violation should also be listed as “lost workdays or restricted duty,” the 

Court, in performing its due diligence in the spirit of the Mine Act’s provision at 30 U.S.C. 

§820(k), that “[n]o proposed penalty which has been contested before the Commission under 

section 815(a) of this title shall be compromised, mitigated, or settled except with the approval of 

the Commission.” and in its Commission-designated role to provide “front-line oversight,” per 

45 FMSHRC Page 621
AmCoal, 40 FMSHRC 983, 987,3 requested that the parties supply a copy of the citation 

referenced as a basis for redesignating the preshift exam injury down from ‘fatal,’ to ‘lost 

workdays, restricted duty.’ In order to intelligently assess that claim, the Court asked the parties 

to supply a copy of that citation, No. 9581074. 

 The non-attorney representative for the Secretary, CLR Hayhurst, declined to provide the 

Court with the Citation identified in the motion informing, “[t]he Secretary stands by the 

information provided in the Motion to Approve Settlement and declines to provide additional 

evidence not in the record in this matter.” Email from CLR Hayhurst to the Court, June 28, 2023. 

 With respect for the Commission’s present case law on the issue of settlement motions, 

the Secretary’s refusal to even provide the Court with a copy of the citation cited by the mine 

operator as support for its claim that the expected injury should be classified as “lost workdays or 

restricted duty,” demonstrates that the Court’s review role of settlements is only ministerial. It is 

worth it to stop and think about this. The parties submit that another citation, not in the docket 

before the Court, is instructive for their position that lost workdays is the more appropriate 

designation, but the Court may not see the referenced citation. Beyond ministerial, the Court’s 

review role is perfunctory, if refusing to provide a copy of a cited document is an acceptable 

posture. To be blunt, in the Court’s opinion, if it may not see a citation relied upon in support of 

the operator’s position for reducing the gravity of the reasonably expected injury, then its review 

role is to act only as a rubber stamp. 

 As this Court has often remarked, reasonable inquiry is not allowed, as long as the 

AmCoal elements are present. 

Reasonable Inquiry is not Permitted 

Despite the Court’s analysis and concerns, it is not permitted to make reasonable inquiry 

about the contentions advanced in settlement motions. This is because, under the Commission’s 

interpretation of section 110(k) of the Mine Act, Congress only intended that the three elements 

as laid out in The American Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal”) and Rockwell 

Mining, LLC, 40 FMSHRC 994 (Aug. 2018) need be considered under the Commission’s 

standard for review of settlement submissions. The settlement motion does not require more 

information from the Secretary. Accordingly, per the Commission’s decisions on the scope of a 

judge’s review authority of settlements, the “information” presented in this settlement motion is 

sufficient for approval. 

3 The full text of the Commission’s description of the judge’s role informed: “As the 

Commission has repeatedly observed, a Judge's ‘front line oversight of the settlement process is 

an adjudicative function that necessarily involves wide discretion.’ Id. [citing Sec'y of Labor on 

behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC 1097, 1101 (May 2014)]. Judges must 

have sufficient information to fulfill their duty of determining 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 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.” AmCoal at 987-988. 

45 FMSHRC Page 622
Rather, the Court’s review of settlement motions is confined to comparing the parties’ 

motion with the three criteria set forth by the Commission in its decisions in The American Coal 

Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal”) and Rockwell Mining, LLC, 40 FMSHRC 994 

(Aug. 2018). 

Per the Commission’s decisions in AmCoal and Rockwell Mining, to approve a settlement 

motion there are three requirements. Meeting the first two requirements is automatic and 

perfunctory. 

(1) The motion must state the penalty proposed by the Secretary. 

This requirement is met in every civil penalty petition, as the petition contains the 

proposed penalty. The amount is rarely, if ever, an issue, and if in issue, it is resolved 

before the penalty petition is filed. 

(2) The amount of the penalty agreed to in settlement. 

This requirement is also automatic; there could not be a settlement motion without the 

parties stating the penalty amount to which they have agreed. 

(3) “Facts,” as the Commission has employed that term, in support of the penalty 

agreed to by the parties. 

In the context of settlement motions, “facts” have an atypical meaning.4 In discussing 

what constitute “facts” for settlements, the Commission stated “there is no requirement 

that facts supporting a proposed settlement must necessarily be submitted by the 

Secretary. Facts supporting a penalty reduction in a settlement motion may be provided 

by any party individually or by parties collectively.” AmCoal at 990. The only associated 

requirement with such “facts” is that “there is a certification by the filing party that any 

non-filing party has consented to the granting of the settlement motion.” Id. (emphasis 

added). 

Accordingly, the Commission rejected the view that a respondent’s assertions of fact 

need to “present legitimate questions of fact,” and further that the Secretary need not comment 

yea or nay to the facts asserted by a respondent. Instead, the Commission announced that “[f]acts 

alleged in a proposed settlement need not demonstrate a ‘legitimate’ disagreement that can only 

be resolved by a hearing.” Instead, the Commission allows that parties may submit facts that 

reflect a mutual position that the parties have agreed is acceptable to them . . . ” Id. 

4 In settlements, “facts” do not mean things that are known or proved to be true, nor does 

the term mean something that has actual existence or a piece of information presented as having 

objective reality. Fact, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/fact (accessed Nov. 18, 2021). Accordingly, in settlements, a fact does 

not mean something that is true, nor is there a requirement that a statement of fact be verifiable. 

45 FMSHRC Page 623
It should not come as a surprise that, under the Commission’s AmCoal test for review of 

settlements, all such motions are approved. In the rare instances where a judge has denied a 

settlement motion, post-AmCoal, those decisions have met with reversals by the Commission. 

Hopedale Mining, 42 FMSHRC 589 (Aug. 2020), American Aggregates, 42 FMSHRC 570 

(Aug. 2020) (Chairman Traynor and Commissioner Jordan, dissenting). 

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

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

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

Commission administrative law judges when reviewing such settlement motions under the 

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

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

settlement motion is sufficient for approval. 

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

9581077 is modified to list the gravity of the injury or illness from ‘fatal’ to ‘lost workdays or 

restricted duty.’ The penalties for the three citations in this docket are all reduced as reflected in 

the table above. The Respondent is ORDERED TO PAY a penalty of $3,660.00 within 30 days 

of this order. Upon receipt of payment, this case is DISMISSED.

 5

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

Donald R. Hayhurst, Conference & Litigation Representative, U.S. Department of Labor, 

MSHA, 604 Cheat Road, Morgantown, WV 26508 (hayhurst.donald@dol.gov) 

Wm. Allen McGilton, American Consolidated Natural Resources, Inc., 46226 National Road, 

St. Clairsville, OH 43950. (amcgilton@acnrinc.com) 

5

 Penalties may be paid electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. 

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

45 FMSHRC Page 624
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 

July 7, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

NUFAC MINING COMPANY, INC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2023-0149 

A.C. No. 46-08786-569736 

Mine: No. 57 Mine 

ORDER ACCEPTING APPEARANCE 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Sullivan 

It is ORDERED that the Conference and Litigation Representative (CLR) be accepted to 

represent the Secretary in accordance with the notice of limited appearance he has filed with the 

penalty petition. Cyprus Emerald Resources Corporation, 16 FMSHRC 2359 (Nov. 1994). 

This case is before me upon petition for assessment of civil penalty under Section 105(d) 

of the Federal Mine Safety and Health Act of 1977. The Secretary has filed an Amended Motion 

to Approve Settlement and has set forth the factual basis for the proposed modifications. The 

Respondent has agreed to the proposed changes. The originally assessed amount for the citations 

at issue was $19,574.00 and the proposed settlement amount is $11,684.00. 

The proposed settlement includes: 

Citation/ 

Order No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modifications 

9568170 $ 8,095.00 $ 4,047.00 Reduce penalty 

9568171 $ 2,641.00 $ 2,641.00 No change 

9590118 $ 3,841.00 $ 1,920.00 Reduce penalty 

9590119 $ 1,156.00 $ 1,156.00 No change 

9590120 $ 3,841.00 $ 1,920.00 Reduce penalty 

Total $ 19,574.00 $ 11,684.00 

45 FMSHRC Page 625
The Petition for Assessment of Civil Penalty filed by the Secretary of Labor on March 2, 

2023, indicates that, as of January 12, 2023, this mine alone had unpaid penalties of $136,399.37, 

with delinquent amounts going back as far as 2017. Though it does not go back that far, the Mine 

Safety and Health Administration’s Mine Data Retrieval System (“MDRS”) reflects that Nufac 

still owes large amounts, with many unpaid penalties shown as delinquent and referred to the 

United States Department of the Treasury for collection.1 

The MDRS also indicates that some of the unpaid penalties were reduced from the 

originally proposed amounts as the result of Commission judges approving joint motions for 

settlement in civil penalty proceedings. See, e.g., Unpublished Decision Approving Settlement, 

Nufac Mining Company, Inc., No. WEVA 2020-0223 (Apr. 30, 2021) (ALJ). Even when a Judge 

approved an installment payment plan (as has been requested here), it appears that Nufac did not 

comply with the payment plan. See Unpublished Decision Approving Settlement, Nufac Mining 

Company, Inc., Nos. WEVA 2021-0254 & WEVA 2022-0065 (Jan. 21, 2022) (ALJ).2 

Commission judges review proposed settlements to ensure that they are “fair, reasonable, 

appropriate under the facts, and protect[ive] of the public interest.” Am. Coal Co., 38 FMSHRC 

1972, 1976 (Aug. 2016). I greatly question whether approving a settlement is consistent with the 

public interest when all indications are that it will be years, if ever, before even the reduced 

penalty amount is paid. However, here I will forgo denying the motion for settlement because the 

mine is presently shown on the MDRS as having gone into Non-Productive status within the past 

year, with no employees working so far in 2023. 

The parties have set forth justifications for the modifications in the motion filed by the 

Secretary. As required by the Mine Act, I have reviewed the motion and penalty criteria and 

evaluated the proposed settlement pursuant to the requirements set forth in Sections 110(i) and 

110(k). The parties agree to the size of this operator, good faith abatement, and the ability to pay. 

The history of violations has been considered. The negligence and gravity of the violations are 

addressed in the motion, in the citation, and in the file in general. 

 I accept the representations and modifications of the Secretary as set forth in the motion 

to approve settlement. I have considered the representations and documentation submitted, find 

that the modifications are reasonable, and conclude that the proposed settlement is appropriate 

1

 The Court requested via email that the Secretary confirm the reliability of the 

delinquency data on the MDRS, but the Secretary indicated that she would not respond to the 

Court’s inquiry. 

 

2

 I further note that this apparent failure to pay even reduced penalties occurred after

Nufac, along with other related mine operators, had agreed to an installment payment plan for 

unpaid penalties incurred for citations issued between May 3, 2014, and May 3, 2019. See Press 

Release, U.S. Dep’t of Justice, U.S. Attorney for the Western District of Virginia, United States 

Announces Civil Settlement to Collect All Debts Owed by Justice Entities for Violations of 

Federal Mine Safety Act (April 1, 2020) https://www.justice.gov/usao-wdva/pr/united-statesannounces-civil-settlement-collect-all-debts-owed-justice-entities (last visited July 7, 2023). 

45 FMSHRC Page 626
under the criteria set forth in Section 110(i) of the Act. The amended motion to approve 

settlement is GRANTED. 

It is ORDERED that the Respondent pay the Secretary of Labor the sum of $11,648.00

over the course of five consecutive monthly payments of $1,947.00 and one final payment 

$1,949.00, with the first payment due on August 1, 2023, and each subsequent payment due on 

the first day of each subsequent month until the total penalty amount is fully paid. If any 

payment is more the 15 days delinquent, then the entire remaining balance shall become 

immediately due and payable.3 

 /s/ John T. Sullivan 

John T. Sullivan 

Administrative Law Judge 

Distribution (by email): 

David C. Trent, Conference Litigation Representative, U.S. Department of Labor MSHA, 4499 

Appalachian Highway, Pineville, WV 24874 (Trent.David@DOL.GOV) 

Christopher D. Pence, Hardy Pence PLLC, 10 Hale Street, 4th Floor, Charleston, WV 25329 

(cpence@hardypence.com) 

Scott Wickline, Hardy Pence PLLC, 10 Hale Street, 4th Floor, Charleston, WV 25329 

(Scott@hardypence.com) 

3

 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health Administration, 

P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers. 

45 FMSHRC Page 627
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 FAX: 202-434-9949 

July 11, 2023 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

JUSTICE ENERGY COMPANY, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2023-0148 

A.C. No. 46-03404-569444 

Mine: No. 32 

DECISION APPROVING SETTLEMENT 

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. The Conference and 

Litigation Representative, (“CLR”), has filed a Motion to Approve Settlement. The originally 

assessed amount for the citations at issue was $4,081.00 and the proposed settlement amount is 

$3,061.00. The proposed settlement terms are reflected in the following table: 

Citation No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modification 

Docket No. WEVA 2023-0148 

9569727 $987.00 $732.00 26% Penalty Reduction 

9569728 $987.00 $732.00 26% Penalty Reduction 

9569730 $133.00 $133.00 Sustained as Issued; minimum penalty 

assessed 

9569731 $987.00 $732.00 26% Penalty Reduction 

9569732 $987.00 $732.00 26% Penalty Reduction 

TOTAL $4,081.00 $3,061.00 Overall: 25% reduction in total penalty 

under regular assessment formula 

Analysis 

 Although the overall penalty reductions are moderate for this docket, several 

disconcerting aspects stand out. For each of the citations in this docket, save the one citation 

assessed at the minimum penalty, the basis for the reductions is that the injury would not result in 

45 FMSHRC Page 628
more than lost workdays or restricted duty. Motion at 3-4. However, examining the four 

citations, the now-admitted violations represent serious and extensive conditions, all as found by 

the issuing MSHA Inspector, Aaron D. Cline, who diligently recorded the conditions and 

practices he discovered. 

 As reflected here, citing 30 C.F.R. § 77.404(a),1 the text of Inspector Cline’s 

demonstrates the significant hazards he found: 

Citation No. 9569727 provides the following unchallenged facts of the unsafe truck: 

The CAT 785C rock truck #521 is not being maintained in safe operating condition. When 

checked, the following deficiencies exist: 

1. door seal is damaged 

2. cab filter is missing 

3. handrail in front of cab broke 

4. off-side step top rung bent and steps bent into bumper causing no toe clearance 

5. oil hose on off-side front brake leaking 

6. oil leak inside offside rear wheel 

7. emergency steering does not work 

 

 The operator removed the truck from service until all repairs are made. 

Petition for civil penalty at 9. 

Seven defects constitute a large number and items 3 through 5 and 7 are particularly worrisome. 

Citation No. 9569728 

 This admitted violation has the effect, in context, of making the serious defects identified 

in Citation No. 9569727 much worse. Th issuing MSHA Inspector, to his great credit, performed 

due diligence in citing the operator, per 30 C.F.R. § 77.1606 (a),2 with a failure to perform a 

legitimate pre-operational check for the truck cited in Citation No. 9569727, above, noting: 

1 30 C.F.R. § 77.404 Machinery and equipment; operation and maintenance. 

(a) Mobile and stationary machinery and equipment shall be maintained in safe operating 

condition and machinery or equipment in unsafe condition shall be removed from service 

immediately.

2 30 C.F.R. § § 77.1606 Loading and haulage equipment; inspection and 

maintenance. (a) Mobile loading and haulage equipment shall be inspected by a competent 

person before such equipment is placed in operation. Equipment defects affecting safety shall be 

recorded and reported to the mine operator. 

45 FMSHRC Page 629
 The CAT 785C rock truck #521 has not been provided an adequate 

 pre-operational check on either shift. When checked, citation 9569727 was issued 

with numerous deficiencies and no defects were listed on the pre-ops except the 

cab filter. 

Petition for civil penalty at 10 (emphasis added). 

In settlement motions, the Court has seen a rise as a defense in such motions that 

there was no citation for failure to perform a pre-check for equipment defects. To address 

such claims, the Court has stated that inspectors should evaluate whether there has been 

genuine pre-check for defects affecting safety, something Inspector Cline, to his credit, 

evaluated here, finding an abnegation by the operator of its duties to comply with the preshift exam requirement. 

As described below, those two, inextricably related, citations were not the end of the 

matter. 

Citation No. 9569731 

 Essentially the twin violations problems presented themselves again within the same 

inspection; that is to say, the inspector found multiple unsafe conditions on yet another truck and 

these hazards were also coupled with inadequate pre-operational checks. 

 This was a gross deficiency, far exceeding the 7 deficiencies found for Citation No. 

9569727, as Citation, Citation No. 9569731 was considerably worse. Citing the same standard 

violated in Citation No. 9569727, this time Inspector Cline found 19 (nineteen) defects 

presenting unsafe conditions. The citation provided the following unchallenged facts of the

unsafe truck: 

The Maroon Mack Lube truck #0009 is not being maintained in safe operating condition. When 

checked, the following deficiencies exist: 

1. Door seal driver side damaged 

2. Door seal passenger side damaged 

3. inside door handles don't work inside cab both doors 

4. no passenger seat, wooden box is in place of seat, no buckle for seat belt

5. hood latch broke 

6. hood handle gone 

7. oil leak on motor 

8. ball stud has excessive slack on off side tie rod end 

9. air dryer not working and leaking 

10. green antifreeze tank ratchet strapped not bolted down 

11. no valve to shut air line off that must be changed from antifreeze to grease tanks, 

blows air out on operator 

12. jake brake is weak 

13. shock missing on off side front 

45 FMSHRC Page 630
14. oil covering walkway in bed 

15. oil covering hose bay 

16. 2 lights out on rear 

17. ladder to top of truck no toe clearance 

18. no handrail on top of tank and no antiskid material 

19. All 6 brakes are out of adjustment. 

The operator removed the truck from service until all repairs are made. Standard 77.404(a) was 

cited 12 times in two years at mine 4603404 (12 to the operator, 0 to a contractor). 

Petition for a civil penalty at 12-13 (emphasis added). 

 Here too, in the diligent performance of his inspection responsibilities, Inspector Cline 

issued Citation No. 9569732, with his unchallenged statement that: 

The maroon mack lube truck #0009 has not been provided an adequate preoperational check on either shift. When checked, no deficiencies were listed

on the pre ops and citation 9569731 was issued listing 173

 deficiencies on the truck. 

Standard 77.1606(a) was cited 2 times in two years at mine 4603404 (2 to the 

operator, 0 to a contractor). 

Petition for Civil Penalty at 14. (emphasis added). 

 In the Court’s view, the motion is appalling, both because of the large number of hazards 

found on the two trucks and the dereliction of duties by the operator in not performing a 

legitimate precheck. The Respondent provides the same, empty, rationale to support the acrossthe-board 26% reductions for each of these four conceded violations. 

 The Respondent offers the same empty language for each of four admitted violations: 

In the unlikely event of a mine accident, the listed conditions would 

not result in more than a lost workdays or restricted duty injury. 

Motion at 3-4. (emphasis added). 

 There is no substance to back up the bald claim; only the assertion is made. 

 The Secretary, acting through Conference and Litigation Representative David Trent, in 

like fashion, has an equally hollow response for each, stating: 

The Secretary recognizes that the ALJ may find merit in the facts and 

arguments presented by the Respondent and in light of the contested 

evidence and given the uncertainties of litigation, 

3 The reference to 17 deficiencies appears to be a typographical error, as Inspector Cline 

listed 19, not 17, separate safety deficiencies in Citation No. 9569731. 

45 FMSHRC Page 631
Id. (emphasis added). 

 Despite its statutory role to protect miners, the Secretary does not inform if he/she 

consulted with the issuing inspector, who saw the admitted violations, for his take on the ‘lost 

workday, restricted duty’ claims. Further, for the Secretary to make no distinction between the 

numerous defects and the arguably more serious violation of not performing an honest preoperational check, weakens the importance of the latter, and is a disservice to miners. Such a 

response is inimical to the Secretary’s safety and health duties. 

Reasonable Inquiry by the Court is not Permitted 

 It is obvious that for egregious violations such as these, the Court would have questions 

aplenty. However, Reasonable Inquiry about the contentions advanced in settlement motions is 

not Permitted 

 This is because, under the Commission’s interpretation of section 110(k) of the Mine Act, 

Congress only intended that the three elements as laid out in The American Coal Co., 40 

FMSHRC 983 (Aug. 2018) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018), need be 

considered under the Commission’s standard for review of settlement submissions. The 

settlement motion does not require more information from the Secretary. Accordingly, per the 

Commission’s decisions on the scope of a judge’s review authority of settlements, the 

“information” presented in this settlement motion is sufficient for approval. 

 The Commission has stated that the administrative law judges have “front line oversight” 

of the settlement process and as such that it is an adjudicative function that “necessarily involves 

wide discretion.” Despite those muscular words, the Commission has clearly set forth that the 

Secretary is not required to offer any comment at all as to the merits of the Respondent’s 

arguments. 

Per the Commission’s decisions in AmCoal and Rockwell Mining, to approve a settlement motion 

there are three requirements. Meeting the first two requirements is automatic and perfunctory. 

 (1) The motion must state the penalty proposed by the Secretary. 

 This requirement is met in every civil penalty petition, as the petition contains the 

proposed penalty. The amount is rarely, if ever, an issue, and if in issue, it is resolved before the 

penalty petition is filed. 

 (2) The amount of the penalty agreed to in settlement. 

 This requirement is also automatic; there could not be a settlement motion without the 

parties stating the penalty amount to which they have agreed. 

(3) “Facts,” as the Commission has employed that term, in support of the penalty 

agreed to by the parties. 

 

45 FMSHRC Page 632
 In the context of settlement motions, “facts” have an atypical meaning.4 In discussing 

what constitute “facts” for settlements, the Commission stated “there is no requirement that facts 

supporting a proposed settlement must necessarily be submitted by the Secretary. Facts 

supporting a penalty reduction in a settlement motion may be provided by any party individually 

or by parties collectively.” AmCoal at 990. The only associated requirement with such “facts” is 

that “there is a certification by the filing party that any non-filing party has consented to the 

granting of the settlement motion.” Id. (emphasis added). 

 Accordingly, the Commission rejected the view that a respondent’s assertions of fact 

need to “present legitimate questions of fact,” and further that the Secretary need not comment 

yea or nay to the facts asserted by a respondent. Instead, the Commission announced that “[f]acts 

alleged in a proposed settlement need not demonstrate a ‘legitimate’ disagreement that can only 

be resolved by a hearing.” Instead, the Commission allows that parties may submit facts that 

reflect a mutual position that the parties have agreed is acceptable to them . . .” Id. 

 It should not come as a surprise that, under the Commission’s AmCoal test for review of 

settlements, all such motions are approved. In the rare instances where a judge has denied a 

settlement motion, post-AmCoal, those decisions have met with reversals by the Commission. 

Hopedale Mining, 42 FMSHRC 589 (Aug. 2020), American Aggregates, 42 FMSHRC 570 

(Aug. 2020) (Chairman Traynor and Commissioner Jordan, dissenting). 

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

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

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

Commission administrative law judges when reviewing such settlement motions under the 

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

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

settlement motion is sufficient for approval. 

 

4

 In settlements, “facts” do not mean things that are known or proved to be true, nor does 

the term mean something that has actual existence or a piece of information presented as having 

objective reality. Fact, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/fact (accessed Nov. 18, 2021). Accordingly, in settlements, a fact does 

not mean something that is true, nor is there a requirement that a statement of fact be verifiable. 

45 FMSHRC Page 633
 WHEREFORE, the motion for approval of settlement is GRANTED. With significant 

misgivings, the penalties are reduced, per the summary table above, and those four reduced 

penalties are modified to provide that the injury or illness reasonably to be expected is 

downgraded from ‘fatal’ for each to ‘lost workdays or restricted duty.’ The Respondent is 

ORDERED TO PAY a penalty of $3,061.00 within 30 days of this order. 5 Upon receipt of 

payment, this case is DISMISSED. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

David C. Trent, Conference & Litigation Representative, U.S. Department of Labor, MSHA 

4499 Appalachian Highway, Pineville WV 24874 Trent.david@dol.gov 

Scott Wickline, Esq., Hardy Pence, PLLC, 10 Hale Street, 4th Floor 

P.O. Box 2548, Charleston, WV 25329 scott@hardypence.com 

5

 Penalties may be paid electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. It is vital to include Docket and 

A.C. Numbers when remitting payments. 

45 FMSHRC Page 634
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th Street, Suite 443 

Denver, CO 80202-2536 

303-844-3577/rmanning@fmshrc.gov 

July 6, 2023 

SECRETARY OF LABOR, MSHA, 

 on behalf of VICTOR TORRES, 

 Applicant 

 v. 

W. G. YATES & SONS 

 CONSTRUCTION COMPANY, 

 Respondent 

 APPLICATION FOR TEMPORARY 

 REINSTATEMENT 

Docket No. WEST 2023-0256-DM 

MSHA Case No. VACA MD 2023-06 

Mt. Pass Mine & Mill 

Mine ID 04-02542 G556 

 

ORDER GRANTING APPLICATION FOR TEMPORARY REINSTATEMENT 

& ORDER TOLLING TEMPORARY REINSTATEMENT 

Appearances: Natasha Magness, Esq., Office of the Solicitor, U.S. Department of Labor, 

Seattle, Washington for Applicant; 

McCord Wilson, Esq., Rader & Campbell, Dallas, Texas for Respondent 

Before: Judge Manning 

This case is before me on an Application for Temporary Reinstatement (the 

“Application”) filed by the Secretary of Labor on behalf of Victor Torres (“Torres”) against W.G. 

Yates & Son’s Construction Co., and all successors in interest (“Yates”) pursuant to section 

105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (the “Mine 

Act”).1 The Secretary’s Application alleges that on or about April 13, 2023, Yates terminated 

Torres from his position as a journeyman millwright in retaliation for “raising safety concerns 

including exercising his stop work authority.” App. Temp. Reinstatement 2-3. The Secretary 

requests an order directing Yates to temporarily reinstate Torres “to the position of Journeyman 

Millwright, or to a similar position at the same rate of pay and benefits and with all of the same 

seniority or other perquisites of the job, and with the same or equivalent duties assigned to him” 

pending final hearing and disposition on the discrimination complaint. Id. 1, 3. 

The undisputed evidence establishes that MP Materials Corp. is restarting a surface rare 

earth mine in California near the Nevada border at a location known as Mountain Pass. A 

different operator mined rare earths at the mine in the past but it went out of business. Because of 

the strategic importance of rare earths, the Department of Defense is involved in restarting 

operations, presumably by providing at least some of the funding. The critical work to restart 

operations is to build a facility to separate the targeted rare earths from the mined material. This 

facility, known as the processing facility (the “facility’), is being built from the ground up. Due 

to the secretive nature of the equipment being installed and the processes to be used, taking 

photos at the facility is prohibited except by authorized personnel. 

1

 The application was filed by the Secretary on June 2, 2023. Yates timely requested a 

hearing within 10 days of receipt of the application. 29 C.F.R. § 2700.45(c). At the request of the 

parties, the hearing was held on June 28, 2023. 

45 FMSHRC Page 635
Yates was a major contractor hired to construct the facility. The construction of the 

facility was put on a fast track and at the time of the hearing work was virtually complete. All 

that remained was testing the facility by running product through the facility and the 

commissioning of the facility. At the beginning of 2023, Yates employed between 800 and 1,000 

people at the facility. About 110 of these employees were journeymen millwrights. On the date of 

Torres’s termination, about 270 people worked for Yates including 15 millwrights. On the day of 

the hearing in this case, about 22 people worked for Yates at the facility, including two 

millwrights and a millwright supervisor. The millwrights and millwright supervisor were 

primarily on standby in case repairs needed to be made during testing and commissioning. As 

discussed below, Torres was assigned welding duties for much of his employment at Yates. There 

were no welders employed on the date of the hearing. 

The Secretary contends that Torres was selected for termination on April 13 because of 

his safety complaint. Yates contends Torres was laid off along with other millwrights because his 

demonstrated skills were no longer needed at the facility. 

The parties stipulated that (1) Yates is a mine operator under the Mine Act; (2) the 

Mountain Pass Mine & Mill, which includes the subject facility, is a mine under the Mine Act; 

(3) Torres is a miner under the Mine Act, and (4) the Commission has jurisdiction over this case. 

Tr. 10-11. 

The parties presented testimony and documentary evidence at a hearing held via the 

Commission’s secure video conferencing system. For the reasons set forth below, I find that the 

application for temporary reinstatement must be GRANTED, but that temporary reinstatement is 

TOLLED. 

I. SUMMARY OF THE EVIDENCE 

 Each party offered two witnesses. A summary of each witnesses’ testimony follows. 

Victor Torres 

 Torres was hired by Yates on September 8, 2022, as a journeyman millwright at the 

facility.2 Tr. 17. Torres’s job duties as a millwright included making equipment layouts and 

aligning, assembling, and installing equipment. Tr. 20. According to Torres, millwrights normally 

bring their own tools to job sites, and he brought his own tools to the job at the facility. Tr. 50. 

 

2

 Torres testified he had eight years of experience as a millwright. Tr. 16. Prior to being 

hired by Yates, Torres was a 1099 independent contractor and spent time working for both Casey 

Industrial and Phoenix Industrial. Tr. 16. Torres earned $35 per hour and worked approximately 

60 hours per week for Yates. Tr. 18, 21. According to Torres, roughly 18 other millwrights were 

hired around the same time as him, and an additional 12 millwrights after he was hired. Tr. 18. 

45 FMSHRC Page 636
Although Torres’s job title never changed while he was with Yates, at some point after he 

was hired, at Yates’s request, Torres took a test to become a structural welder. Tr. 18-19. At that 

time there were only four other certified welders.3

 Tr. 19. As a structural welder for Yates, Torres 

was tasked with fabricating equipment and making needed modifications. Tr. 20. Torres worked 

as a structural welder until that part of the project was completed and then switched back to 

being a millwright. Tr. 53-54. 

 Each day at the job began with a meeting of the crews and foremen during which Torres 

received his assigned tasks for the day. Tr. 21. Generally, Torres worked in one location on an 

assigned task until it was completed before moving to another location for his next task. Tr. 21. 

 On April 10, 2023, Torres was tasked with using a manlift to bring down pipe from an 

elevated rack. Tr. 26. According to Torres, the manlift manual says the lift should not be used as 

crane. 4 Tr. 30. Torres believed it was not safe to bring down a pipe with the manlift. Tr. 30. 

Torres’s crew requested a crane to safely complete the task, but the request was denied by Tyler 

Towns, an engineer with Yates and Torres’s foreman at the time. Tr. 26-27. Towns instead 

instructed the crew to use the manlift for the task. Tr. 27. At that point Torres refused to complete 

the task and exercised his “stop work authority.” Tr. 27-28. “Stop work authority” allows anyone 

to stop all work when they see something unsafe.5 Tr. 28. According to Torres, Towns said if 

Torres would not do the job as instructed then Towns would find someone else to do so and 

Torres would be removed. Tr. 28. Torres understood Towns’s comment to mean that Torres 

would be fired. Tr. 28-29. 

 After Torres exercised “stop work authority” a group of supervisors came to the location 

and two other miners used the manlift to complete the task. Tr. 29. Torres used his phone camera 

to take photos of the miners completing the work for inclusion in a “stop work authority” report. 

Tr. 34; Sec’y Ex. 2 p. 1-3. According to Torres, he needed to take the photos for use as evidence 

when raising the safety concern so that this type of incident would not happen again. Tr. 34, 77-

78. The photos show two individuals in an elevated manbasket with a length of pipe laying 

across the top rails of the basket. Tr. 29-32; Sec’y Ex. 2 p. 1-3. The pipe appears to be tied to the 

railing. Tr. 31. According to Torres, the procedure used by the miners was unsafe because the 

manlift should not have been used as a crane and the pipe could have exceeded the lift’s weight 

limit and caused the lift to tip or hydraulics to fail, which could in turn cause an injury. Tr. 30. 

At some point Torres traveled with Rumegus Eaton, the general foreman, to Yates’s office 

to fill out a report about the manlift incident. Tr. 35; Sec’y Ex. 3. Torres met with Bryan French, 

who Torres described as the project manager, Jimmy Hayes, the millwright superintendent, and 

others. Tr. 58-59. Torres testified that neither French nor Hayes said it was wrong for Torres to 

use his “stop work authority,” but both talked to Torres about how using the phone to take photos 

3

 Only one other certified welder was left at the facility after April 13. Tr. 19. 

4

 On cross-examination Torres acknowledged there is an attachment approved by the 

manlift manufacturer that can be used to safely raise and lower pipe with the lift. Tr. 65-66. 

However, the attachment could not be found on April 10. Tr. 65.

5

 Torres acknowledged that he was trained how to use “stop work authority.” Tr. 72. 

45 FMSHRC Page 637
was against policy.6

 Tr. 59, 63. On cross-examination Torres acknowledged employees had been 

terminated in the past for taking photos and that he could have been terminated for that reason. 

Tr. 64. However, Torres received no discipline that day. Tr. 64-65. Torres ultimately left the 

office and went back to work on a task at a different location than where the manlift incident 

occurred. Tr. 67. 

 During the morning task meeting on April 11, the day after the manlift incident, Jose 

Segovia, a Yates foreman, gave Torres a written list7

 of tasks to complete in a different area of 

the facility than where Torres had worked on April 10. Tr. 36-38, 68; Sec’y Ex. 4. Torres’s crew 

included two employees that had worked with Torres on April 10 and had been involved in the 

manlift incident. Tr. 66-67. According to Torres, the task list surprised him because it included 

tasks not normally undertaken by millwrights, tasks which only certain other crews were allowed 

to complete, and tasks for which Torres was overqualified. Tr. 38-39. Moreover, when speaking 

to a coworker during his lunch break that day, Torres learned that other employees were 

performing tasks that normally would have been performed by Torres. Tr. 39-40. 

 During the morning task meeting on April 12, two days after the manlift incident, Torres 

was surprised to learn that he was again assigned tasks outside of his normal duties and was not 

provided the necessary materials to complete those tasks.8

 Tr. 41-42. However, on crossexamination, Torres conceded the missing materials were things a millwright would use to install 

equipment and some of the tasks assigned on both April 11 and 12 were typical for a millwright. 

Tr. 73-74. 

Torres testified that at some point on April 12 a coworker informed Torres that Eaton had 

told that coworker that people involved in taking photos of the manlift incident were going to be 

laid off. Tr. 44-45. 

On April 13 Eaton pulled Torres and another individual from the morning task meeting 

and told them to gather their belongings because they were being laid off. Tr. 43. Both Torres and 

the other individual had exercised their “stop work authority” on April 10. Tr. 46. Eaton did not 

provide Torres with a reason for the layoff. Tr. 46. 

At hearing, Torres stated he believed he was assigned tasks outside of his craft on April 

11 and 12 and ultimately terminated because he raised safety concerns about the manlift and 

exercised his “stop work authority” on April 10. Tr. 42-43, 46-47. According to Torres, no one 

from Yates ever told him why he was laid off. Tr. 46. Torres filed his complaint of discrimination 

on April 19. Tr. 23; Sec’y Ex. 1. 

6

 At hearing, Torres conceded that he was aware there was a policy against taking photos 

at the facility and that he violated that policy on April 10. Tr. 53, 63-64. 

7

 Torres did not know who wrote the list. Tr. 68. 

 

8

 Some of the April 12 assigned tasks were included on the written list provided to Torres 

on April 11. Tr. 41-42. Torres testified that the tasks assigned on April 12 required bolts, 

hardware, flanges, and hoses that were not provided. Tr. 42, 73-74 

45 FMSHRC Page 638
Torres testified he was never told that his work was deficient, and he had no reason to 

believe Yates was dissatisfied with his work. Tr. 47. On cross-examination Torres acknowledged 

he had been disciplined by Yates in the past after multiple instances of absenteeism/tardiness. Tr. 

59-62; Yates Ex. R2. Still, Torres testified he wants to return to work for Yates, and, based on 

seeing the car of one of his former millwright coworkers at the facility on June 19, believes there 

is still millwright work to be done at the facility. Tr. 48. However, on cross-examination Torres 

acknowledged that, given that he did not know what millwrights were still at the facility, he 

could not compare his skillset to the skillsets of those individuals. Tr. 70-71. 

Torres acknowledged he knew the government was involved in the Mountain Pass project 

and Yates was building facilities for processing rare earth metals. Tr. 52-53. Further, he 

understood that the job was temporary and was approaching completion at the time of his layoff.9

Tr. 52, 68. Although he was aware many millwrights and structural welders were laid off prior to 

his termination, he did not expect to be laid off on April 13 because he was still getting 

millwright work.10 Tr. 74-75. 

Torres testified he is not from the area and only relocated to the area when he started the 

job in September. Tr. 48-49. He has had difficulty meeting financial obligations since being 

terminated. Tr. 49. 

Kyle Jackson 

 Kyle Jackson11 was the MSHA Special Investigator charged with investigating Torres’s 

complaint. Tr. 87-88; Sec’y Ex. 1. As part of his investigation, he contacted both Torres and 

personnel from Yates. Tr. 88. Based on his investigation, Jackson determined that Torres’s 

complaint was made in good faith and not frivolously brought.12 Tr. 88. 

9

 Torres conceded that at the time of the hearing he did not know the state of the project 

or if the equipment and machinery were in working order. Tr. 80-81. 

10 Torres acknowledged there was not much welding work available at the time of his 

termination. Tr. 75. Torres was also aware that four millwrights were laid off the week after his 

termination, one of whom was involved in the manlift incident and three of whom were not. Tr. 

75-76. 

11 Jackson has been with MSHA for 22 years. Tr. 85. As a special investigator, part of his 

job is to investigate discrimination cases brought under section 105 of the Mine Act. Tr. 86-87. 

12 Jackson testified regarding two citations issued to Yates for alleged violations of 

mandatory standards during a hazard complaint inspection. Tr. 89-93; Sec’y Ex. 5. According to 

Jackson, the condition or practice described in the two citations was the same as that which 

Torres used to justify exercising his “stop work authority” during the manlift incident. Tr. 92. 

Jackson explained that the first citation was issued to address the hazard of raising and lowering 

pipe with the manlift when the pipe is only tied off to the basket, while the second citation was 

issued to address the hazard of the person directing the work not being task trained on safe 

operation of the manlift. Tr. 93. 

45 FMSHRC Page 639
 On cross-examination Jackson agreed that during his inspection he learned Yates’s work 

at the facility was temporary and originally scheduled for completion in May of 2023. Tr. 95-96. 

Further, he agreed the number of Yates employees had drastically decreased in recent months, 

including a reduction in the number of millwrights from over 100 to less than five, a reduction to 

zero structural welders, and a reduction in the total number of employees from roughly one 

thousand to less than 25. Tr. 96, 99, 102, 25. Jackson further acknowledged that four millwrights 

were laid off the week after Torres’s layoff, and only one of those individuals was involved in the 

manlift incident on April 10. Tr. 105-106. Jackson agreed those layoffs indicated that millwrights 

were not needed by Yates at that time. Tr. 106. 

Jackson conceded he had no knowledge regarding the skillsets of the few remaining 

millwrights and did not try to compare Torres’s skillset as a millwright or structural welder to the 

skillsets of those individuals still onsite. Tr. 99-101. Moreover, although Jackson testified he was 

aware of the of the general duties of millwrights in other industries, he acknowledged he was not 

aware of the typical duties of millwrights for Yates, including whether raising and lowering pipe 

was a normal millwright duty. Tr. 103. 

On cross-examination Jackson agreed Yates had in place a policy against taking photos 

and Yates had terminated other employees for violating that policy. Tr. 97. Moreover, he agreed 

Torres violated that policy on April 10. Tr. 98. 

 During Jackson’s investigation Yates provided him with a list of laid off employees. Tr. 

93-94; Yates Ex. R4. At hearing, Jackson testified the list did not change his determination that 

Torres’s complaint was not frivolously brought. Tr. 94, 106. Although Jackson agreed Yates was 

conducting mass layoffs, he testified Torres’s layoff on April 13 could nevertheless have been 

discriminatory because it occurred within three days of Torres’s protected activity. Tr. 107. 

Moreover, according to Jackson, Torres brought his claim to MSHA in good faith and believed 

the layoff was a result of his protected activity. Tr. 109. 

Jimmy Hayes 

 Jimmy Hayes was Yates’s millwright superintendent at the facility until June 8, at which 

point he was taken off the project due to downsizing.13 Tr. 113. 

Hayes explained that Yates was contracted to build a rare earth mineral processing facility 

at the mine. Tr. 114. According to Hayes, the rare earth mineral processing facility will be only 

the second in the world, with the other being in China. Tr. 114. The Department of Defense runs 

the facility and, given the need to keep information about the facility from getting out, taking 

photos with phones is prohibited unless a person has proper clearance to do so. Tr. 114, 118. 

Hayes testified that employees have been terminated for violating this policy. Tr. 117. 

13 Hayes is currently employed by Yates as a project superintendent, presumably at a 

different Yates job site. Tr. 112. Hayes has been with Yates for approximately 13 years and has 

worked in construction for 28 years. Tr. 112. 

45 FMSHRC Page 640
Hayes explained that Yates’s project was originally scheduled to be completed in April of 

2023.14 Tr. 115. Although the project has not yet been completed it has been winding down 

throughout 2023. Tr. 115. Hayes testified that, at the project’s peak, Yates employed roughly 110 

millwrights. Tr. 126. As of April 13, only 14 millwrights remained. Tr. 126. As of June 8, there 

were no structural welders and only four millwrights and one millwright foreman working on the 

project. Tr. 125-126. According to Hayes, the millwrights remaining on June 8 were 

“exceptional” and capable of doing every task. Tr. 126-127. Although Hayes is no longer 

working at the mine, he is aware that only two millwrights currently remain and there is no 

millwright work. Tr. 136-137. The remaining millwrights are essentially on “standby” in case 

there is an issue with a pump and are not doing true millwright work. Tr. 135-137. Hayes 

testified that Yates’s contract ends on July 1, 2023, and, although extensions are possible, the 

plan is for all Yates employees to be gone on that date. Tr. 128, 160. 

Hayes testified that on April 10 when he learned about the manlift incident he was not 

concerned about Torres’s use of “stop work authority” but was concerned about Torres taking 

photos at the facility. Tr. 116. As a result, he had Torres come to the office to write a statement. 

Tr. 116-117. 

Hayes and Bryan French, the project superintendent, met with Torres at the office. Tr. 

119. Both Hayes and French agreed with Torres’s use of “stop work authority.” Tr. 119-120. 

According to Hayes, no one involved with the manlift incident was disciplined for exercising 

their “stop work authority.” Tr. 119. Hayes explained that Torres was not terminated on April 10 

for taking photos because the photos were taken in the interest of safety and did not show any 

processes. Tr. 117. 

Following the meeting, Torres went back to work but was assigned tasks in a different 

area. Tr. 148-149. Hayes testified he did not want conflict among the employees and the job 

Torres was moved to, i.e., tank cleaning closures, was more important than the pipe task Torres 

had been assigned to at the time of the manlift incident.15 Tr. 149. Torres never complained about 

his assignments after the manlift incident. Tr. 133. 

Hayes described the layoff process. According to Hayes, layoffs occur in rounds. Tr. 137. 

French is responsible for determining how many man hours of work remain at the job and then 

determining the number of workers needed to complete that work. Tr. 120-121. French then 

determines the number of employees that must be laid off that round and provides the number to 

Hayes. Tr. 120. Hayes, as the millwright superintendent, in turn decides which millwrights 

14 At the time Hayes left the project on June 8 Yates had assembled and tested everything 

and was just waiting on the mine operator to move product through all areas of the facility. Tr. 

115. 

15 Hayes testified the pipe task Torres was assigned to on April 10 was completed around 

April 15 or 16, and all pipe work, including fixing leaks, was completed at some point in April. 

Tr. 149-150. Although Torres was qualified to raise and lower pipe and fix leaks, Hayes testified 

that those tasks were not typical millwright duties but could be completed by a millwright. Tr. 

150. However, because there was not enough millwright work at the time, Hayes was assigning 

millwrights tasks outside of their craft. Tr. 151. 

45 FMSHRC Page 641
should be laid off. Tr. 120. Hayes makes his determination who to lay off based on the working 

knowledge of the remaining millwrights, whether those individuals have the tools necessary to 

complete the remaining work, and whether those individuals have issues with absenteeism or 

tardiness. Tr. 121, 142-143. According to Hayes, there is no written list of criteria or performance 

evaluation to determine an employee’s skillset and most of that determination is made by Hayes 

when observing the millwrights work in the field. Tr. 144-145. Employees are not given advance 

notice of layoffs. Tr. 162. Rather, the general foreman notifies the employees that they are being 

laid off the same day. Tr. 161. The laid off employees then complete the necessary paperwork 

before warehouse personnel conduct a toolbox check, and then the employees clock out and 

leave. Tr. 161-162. 

 Hayes explained that Torres was laid off on April 13 as part of a reduction in force due to 

a decrease in work for Yates at the facility. According to Hayes, Torres’s lack of the necessary 

skillset, lack of tools, and issues involving absenteeism/tardiness played a part in the decision to 

include Torres in that round of layoffs.16 Tr. 123-125, 143. Hayes acknowledged that the factors 

he considered were not weighted in any way and that, ultimately, it was his decision based on his 

own experience. Tr. 148. 

 Hayes testified that Torres lacked the necessary skillset and tools to remain employed at 

the project. According to Hayes, Torres was classified as a structural welder and all structural 

welding work had been completed.17 Tr. 121. Hayes explained that, although there had been no 

structural welding work for some time, because Torres had been hired as a millwright, Torres 

was kept on to complete millwright tasks associated with the startup portion of the job. Tr. 121, 

140-141. However, once the project entered the startup and commissioning phases, which Hayes 

described as “fast-paced[,]” “precision” work, Hayes did not believe Torres had the necessary 

knowledge or skillset to complete the remaining tasks. Tr. 124. Hayes did not believe Torres 

knew how to use a laser or indicator. Tr. 124. Hayes testified that, even if Torres had the 

necessary knowledge and skillset, he did not have the necessary tools18 and even if he did, it may 

only have helped Torres last another week given that there was very little millwright work and 

the millwrights that remained were having to work other crafts.19 Tr. 125, 146. 

16 At least one other millwright and three pipe workers were included in the round of 

layoffs that included Torres. Hayes testified that the decision to lay off Torres and the other 

employees in that round was made at the same time even though the millwrights were laid off on 

the April 13 and the others were laid off on April 14. Tr. 152. The individuals laid off on April 

14 were laid off on that date because they worked the night shift. Tr. 152; See Yates Ex. R4 p. 8. 

Moreover, according to Hayes the other millwright laid off the same day as Torres lacked the 

necessary skillset. Tr. 158. 

 

17 Although one welder remained employed at the facility after Torres was laid off, that 

individual had much better welding qualifications than Torres, could read drawings, and had the 

ability to fabricate most anything. Tr. 122. That welder has since been laid off. Tr. 122. 

18 Hayes testified there is a list of millwright tools. Tr. 146. 

19 Hayes agreed that millwrights performed a wide range of tasks and were consistently 

asked to work on tasks outside of their craft, including changing pipes. Tr. 136. 

45 FMSHRC Page 642
 Hayes also testified that over the course of Torres’s employment Hayes generally selected 

other millwrights for work on critical tasks due to Torres’s lack of knowledge. Tr. 141-142. 

Hayes knew Torres lacked knowledge in certain areas because of conversations with foremen 

and other employees, and the types of tools Torres had and did not have. Tr. 141-142. Further, 

Hayes testified that Yates offered voluntary training opportunities for employees to expand their 

skillsets, but Torres chose not to participate in those sessions. Tr. 142, 154-155. 

 Hayes testified that even if Torres had the necessary skills and tools, Torres would not 

have been kept on past April 13 because the remaining millwrights, all of whom had the 

necessary skills and tools, did not have the absenteeism/tardiness issues Torres had. Tr. 147-148. 

 Hayes testified that the week after he laid off Torres he had to lay off an entire crew of 

millwrights, as well as a millwright foreman, due to lack of millwright work. Tr. 123, 130-131; 

See Yates Ex. R4 p. 8. On cross-examination Hayes explained that Torres was not terminated 

with that group of millwrights because that group had been working with a vendor on a task 

involving conveyors, and Torres had never worked with that group on that task. Tr. 139. 

However, Hayes conceded he never asked Torres if he had the skillset for that task. Tr. 140. 

Bryan French 

 Bryan French was, and currently is, Yates’s job superintendent at the facility. Tr. 164. 

French described his position as “high level” and stated he is not involved in crew assignments. 

Tr. 169-170, 195. 

French, like Hayes, testified that the facility is a Department of Defense job meant to 

compete with China. Tr. 165. Yates was contracted by the mine operator to put in new processes 

and procedures to extract rare earth minerals. Tr. 165. 

French echoed Hayes’s testimony that Yates’s work at the facility is winding down 

because the project scope has been completed and Yates is now just waiting on the mine operator 

to deliver product through each part of the processing facility. Tr. 178. According to French, 

while there were between 800 and 1000 Yates employees at the facility at the beginning of 2023, 

that number has dwindled to 20 current employees, none of which are structural welders, and 

only three of which are millwrights, with one of those three being a supervisor.20 Tr. 175-178; 

See Yates Exs. R3 (graph depicting total workforce) and R5 (job reports showing decline in 

number of millwrights during June 2023). French acknowledged that Yates is still performing 

limited work at the facility and estimated that the three remaining millwrights are working 

approximately 20 hours per week at present. Tr. 178, 183-184. 

On April 10 French met with Torres in the safety office to discuss the manlift incident. Tr. 

167. According to French, no one was disciplined for use of “stop work authority” and he even 

20 French testified that on April 13 only a couple hundred Yates employees remained at 

the facility, with only 15 of those employees being millwrights. Tr. 176-177. At one point there 

were approximately 120 millwrights working for Yates at the facility. Tr. 179. The only 

remaining welder at the facility is a pipe welder capable of both pipe welding and structural 

welding. Tr. 180. Torres was designated as a structural welder and did not weld pipe. Tr. 180. 

45 FMSHRC Page 643
told Torres he agreed with the decision to exercise “stop work authority.” Tr. 168-169. Although 

French agreed he could have terminated or disciplined Torres for taking photos,21 he ultimately 

decided not to do so because the photos were just of the pipe, and not the process, and had been 

taken in the interest of safety. Tr. 168-169. At some point after meeting with Torres, French made 

the decision to swap out the crew working on the pipe project because a crane was being called 

over to complete the task. Tr. 170, 186-187. According to French, Torres was not a certified 

rigger or signal person and, as a result, was not qualified to work with the crane. Tr. 186-187. 

Instead, Torres was assigned cleaning and closing tasks that needed to be completed for 

commissioning.22 Tr. 170, 186. French explained that one of the reasons he swapped out the crew 

was because construction workers can be difficult at times, and occasionally workers need to be 

moved to a different task to get the most out of them and so that no one gets hurt. Tr. 186-187. 

French explained that Yates started downsizing in March. Tr. 171. His role in that process 

involved evaluating the budget and man hours required and then determining how many people 

were needed in each craft to complete the work. Tr. 171-173, 189. French would then tell his 

craft superintendents how many of their employees needed to be laid off. Tr. 173. The 

superintendent then determined who needed to be laid off and justified that decision to French. 

Tr. 173-174, 189. On cross-examination French conceded there was no objective ranking or 

measuring system of employees. Tr. 190. French testified that advance notice of layoffs was not 

provided to hourly employees. Tr. 181. 

Here, at some point prior to April 13, French provided the number of needed millwright 

layoffs to Hayes but did not tell Hayes who to lay off. Tr. 173. Hayes then evaluated his needs in 

the field and determined that Torres and another millwright should be laid off. Tr. 175, 191. 

According to French, Hayes justified Torres’s inclusion in the layoff because there was no more 

welding work and what work was left involved precision commissioning tasks that, as far as 

French knew, Torres did not have the skillset for. Tr. 174-175. Because Hayes worked closely 

with the employees in the field, French relied on Hayes’s evaluation of Torres’s skillset. Tr. 191. 

Although French did not know Torres’s skillset for millwright work, he was aware that when 

Torres was hired he did not have all the tools necessary for millwright work. Tr. 192. Like other 

hourly employees, Torres was not given advance notice of being laid off. Tr. 181-182. French 

testified that Torres’s use of “stop work authority” played no role in the layoff decision. Tr. 171. 

Ultimately, French signed paperwork that indicates Torres was laid off as part of a 

reduction in force. Tr. 196; Yates Ex. R1. The same paperwork indicates that Torres’s job 

performance was rated as “good” and that Torres was recommended for rehire. Tr. 196-198. 

21 French testified that photos cannot be taken at the facility. Tr. 165. French has had to 

terminate employees for taking photos. Tr. 166. According to French, the decision to terminate 

an employee for taking photos is “immediate.” Tr. 166. 

22 According to French, Torres was not given less desirable jobs because of his use of 

“stop work authority.” Tr. 170. Moreover, Torres never complained about the assignments he 

was given. Tr. 170-171. 

45 FMSHRC Page 644
In addition to Torres, another millwright and a group of employees on the night shift were 

laid off together. Tr, 194-195. French described that round of layoffs as “tough” because he knew 

Yates was laying off “good help.” Tr. 195. 

On cross-examination French acknowledged that millwrights can do a wide range of 

work. Tr. 183. However, he testified that the only millwright work currently left at the facility 

involves pumps, and he has not seen Torres work on pumps, nor does he know if Torres has the 

skillset to do so. Tr. 193. 

II. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Act.23 30 U.S.C. § 815(c). A miner who believes they have been 

discriminated against may “file a complaint with the Secretary alleging such discrimination.” 30 

U.S.C. § 815(c)(2). “[I]f the Secretary finds that such complaint was not frivolously brought, the 

Commission, on an expedited basis upon application of the Secretary, shall order the immediate 

reinstatement of the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2). The 

person against whom relief is sought may request a hearing on the Secretary’s application for 

temporary reinstatement. 29 C.F.R. § 2700.45(c). 

The Commission’s procedural rules and case law are clear that the scope of a hearing on 

an application for temporary reinstatement is narrow and “limited to a determination as to 

whether the miner’s complaint was frivolously brought.”24 29 C.F.R. § 2700.45(d); Sec’y of 

Labor on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), 

aff’d sub nom. Jim Walter Resources Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990) (“JWR”). 

The “not frivolously brought” standard does not require a judge to determine whether 

sufficient evidence of discrimination exists to justify permanent reinstatement. JWR at 744. 

Rather, under the standard, the judge is tasked with evaluating the evidence of the Secretary’s 

case to determine whether the miner’s complaint of discrimination appears to have merit, i.e., a 

non-frivolous issue of discriminatory motivation. Sec'y of Labor on behalf of Williamson v. CAM 

Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). 

23 The purpose of the protection is to encourage miners “to play an active part in the 

enforcement of the [Mine] Act” recognizing that, “if miners are to be encouraged to be active in 

matters of safety and health, they must be protected against any possible discrimination which 

they might suffer as a result of their participation.” S. Rep. No. 95-181, at 35 (1977), reprinted in

Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine 

Safety and Health Act of 1977 at 623 (1978) (“Legis. Hist.”). 

24 Although narrow in scope, a temporary reinstatement hearing must be a “full 

evidentiary process,” during which the judge “must consider any evidence which is relevant to 

the adverse action[,] -- even that which seems directed to an affirmative defense or rebuttal of the 

miner’s claim.” Sec’y of Labor on behalf of Saldivar v. Grimes Rock, Inc., 43 FMSHRC 299, 301 

(June 2021) (citing Sec’y of Labor on behalf of Cook v. Rockwell Mining, LLC, 43 FMSHRC 157 

(Apr. 2021)). 

45 FMSHRC Page 645
Although the Secretary need not prove a prima facie case of discrimination in a 

temporary reinstatement proceeding, “it is useful to review the elements of a discrimination 

claim in order to assess whether the evidence at this stage of the proceedings meets the nonfrivolous test.” Id. at 1088. In order to prove a prima facie case of discrimination the Secretary 

has traditionally been required to establish that (1) a complaining miner engaged in protected 

activity and (2) that the adverse action complained of was motivated in part by that activity.25

Sec'y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), 

rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Sec'y of Labor on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). Although direct evidence of a motivational 

nexus between a protected activity and adverse action is rarely available, the Secretary may 

establish discriminatory motive by circumstantial evidence such as (1) the operator’s knowledge 

of the protected activity, (2) hostility or animus toward the protected activity, (3) coincidence in 

time between the protected activity and the adverse action, and (4) disparate treatment of the 

miner. Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-12 

(Nov. 1981). 

Unlike a discrimination proceeding in which a judge is tasked with resolving conflicting 

evidence, in a temporary reinstatement proceeding the judge should not make credibility 

determinations or weigh the operator’s evidence against that of the Secretary’s when determining 

whether to grant the application for temporary reinstatement. Sec’y of Labor on behalf of Billings 

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

Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999) (It is “not the judge’s duty, nor is 

it the Commission’s, to resolve the conflict in testimony at this preliminary stage of the 

proceedings.”). Moreover, although evidence directed at an affirmative defense or rebuttal is 

permitted at a temporary reinstatement hearing, that “evidence may not serve as a basis for denial 

of reinstatement if it requires resolution of a credibility determination.” Sec’y of Labor on behalf 

of Saldivar v. Grimes Rock, Inc., 43 FMSHRC 299, 301 (June 2021). 

A. The Secretary Established that the Complaint Was Not Frivolously Brought 

 The “not frivolously brought” standard imposes a low standard of proof upon the 

Secretary. Here, I find that the Secretary met that standard and that Torres’s complaint involves a 

non-frivolous issue of discriminatory motivation. 

The Commission has held that if the Secretary shows that the mine operator had 

knowledge of protected activity and that the time between the protected activity and the adverse 

25 In 2021 the Ninth Circuit Court of Appeals rejected the Commission’s longstanding 

Pasula-Robinette framework and instead adopted a “but-for” causation standard for 

discrimination cases brought in the Ninth Circuit. Thomas v. CalPortland Co., 993 F.3d 1204 

(9th Cir. 2021). Although the standard for proving discrimination cases in the Ninth Circuit has 

undoubtedly changed, the Commission has recognized that “the requirements for a full 

discrimination proceeding do not affect the ‘not frivolously brought’ standard in a temporary 

reinstatement case such as this.” Sec’y of Labor on behalf of Saldivar v. Grimes Rock, Inc., 43 

FMSHRC 299, 303 (June 2021). 

45 FMSHRC Page 646
action was short, she has met her burden in most temporary reinstatement cases.26 Here, the 

Secretary introduced evidence that Torres engaged in protected activity when he raised safety 

concerns to Towns, a foreman, and exercised his “stop work authority.” Neither Hayes nor 

French, both members of Yates management, disputed that Torres engaged in that activity, and 

both confirmed they had knowledge of that activity on the day it occurred. Moreover, there is no 

dispute Torres was discharged three days after that activity. Given management’s knowledge of 

the alleged protected activity and the temporal proximity between that activity and Torres’s 

discharge, I cannot find that the discrimination complaint filed by Torres was frivolously 

brought. Rather, I find that Torres’s complaint appears to have merit. 

In addition to the circumstantial evidence of discriminatory motivation discussed above, 

the Secretary introduced evidence that Torres was assigned undesirable tasks after engaging in 

protected activity. Namely, Torres testified he, among other things, was assigned tasks outside of 

his craft in a different area of the facility than where he had been working, was assigned tasks for 

which he was overqualified, and was not provided with materials necessary to complete some 

tasks. Further, Torres testified that prior to April 13 he heard from another employee that Yates 

planned to lay off employees involved in the April 10 manlift incident. In her closing argument 

the Secretary asserted that the events described by Torres “showed clear animus” toward Torres 

because of his protected activity. Tr. 205-207. Although Hayes and French offered testimony that 

disputes Torres’s assertions and provides possible justifications for the work assignment, I am 

prohibited from weighing that evidence against the Secretary’s evidence when determining 

whether to grant the application for temporary reinstatement. Accordingly, I find that the 

Secretary’s evidence on Yates’s alleged animas toward Torres further establishes that the 

complaint was not frivolously brought. 

The Secretary did not discuss or attempt to establish that Torres was subject to disparate 

treatment. Nevertheless, I find that the circumstantial evidence discussed above establishes that 

the application for temporary reinstatement was not frivolously brought and that Torres must be 

REINSTATED.

27 However, for reasons set forth below, I find that Yates’s reinstatement 

obligation is tolled. 

26 “The Commission has held that the Secretary may establish a non-frivolous 

motivational nexus simply through the operator's knowledge of protected activity and temporal 

proximity between the protected activity and the adverse action.” Sec’y of Labor on behalf of 

Cook v. Rockwell Mining, LLC, 43 FMSHRC 157, 162 (Apr. 2021) (citing Sec'y of Labor on 

behalf of Stahl v. A&K Earth Movers Inc., 22 FMSHRC 323, 325-26 (Mar. 2000)). 

27 In Sec’y of Labor on behalf of Kevin Shaffer v. Marion County Coal Co., 40 FMSHRC 

39, 47 (Feb. 2018), Commissioner Althen and former Commissioner Young held that a “Judge 

need not accept testimony if it is demonstrably false, patently incredible, or obviously erroneous, 

because such evidence fails to qualify as “substantial evidence” upon which a reasonable person 

might rely.” The opinion went on to state: 

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

a temporary reinstatement proceeding — even that which seems directed to an 

affirmative defense or rebuttal of the miner’s claim. While we agree that the Judge 

(continued...) 

45 FMSHRC Page 647
B. Immediate Reinstatement is Not an Available Remedy 

 The present case is rather unusual because Yates was rapidly downsizing prior to Torres’ 

discharge, at the time of his discharge, and after his discharge. Although I cannot weigh the 

evidence presented by the parties when determining whether to grant the application for 

temporary reinstatement, I can evaluate undisputed evidence concerning events that occurred at 

the facility in 2023 to determine whether Yates’s reinstatement obligation should be tolled. 

The Commission has held that certain types of events affect the availability of relevant 

work at a mine for the miner at issue and may toll an operator’s temporary reinstatement 

obligation. Sec’y of Labor on behalf of McGoughran v. Lehigh Cement Company LLC, 42 

FMSHRC 467, 470 (July 2020). For example, “changing circumstances,” such as layoffs that 

result in a reduction of the work force, may toll the obligation. Sec'y of Labor on behalf of Gatlin 

v. KenAmerican Res., Inc., 31 FMSHRC 1050, 1054-56 (Oct. 2009). “Operators bear the burden 

of showing by a preponderance of the evidence that tolling is justified.” McGoughran at 470 

(citing Sec'y of Labor on behalf of Ratliff v. Cobra Natural Res., LLC, 35 FMSHRC 394, 397 

(Feb. 2013)). “[I]n order for an operator to establish that temporary reinstatement should be 

tolled based on a subsequent layoff, the operator must demonstrate that ‘the layoff properly 

included’ the miner who filed the complaint of discrimination.” Ratliff at 397 (citing Gatlin at 

1055). 

27 (...continued) 

should not make credibility and value determinations of the operator’s rebuttal or 

affirmative defense, if the totality of the evidence or testimony admits of only one 

conclusion, there is no conflict to resolve. It is the Judge’s duty to determine 

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

facts and inescapable inferences. 

Id. In addition, the opinion stated:

 We may define a “non-frivolous” case as one that is “viable.” At the 

conclusion of a temporary reinstatement proceeding, the Secretary must have 

shown by a preponderance of the evidence the existence a claim of discrimination 

or interference that is capable of succeeding — that is, a case which is not 

foreclosed by the evidence available and one for which there is a reasonable cause 

to believe the complainant may prevail. 

Id. at 48 (emphasis added). 

The Secretary objected to the evidence presented by Yates regarding the changed circumstances 

presented by the layoffs at the facility. I overruled the Secretary’s objection and allowed Yates to 

present all of its evidence on this issue as supported by Sec’y of Labor on behalf of Cook v. 

Rockwell Mining, LLC, 43 FMSHRC 157 (Apr. 2021) and other decisions. Based on the record 

as a whole I cannot say that the testimony of Torres was “demonstrably false, patently incredible, 

or obviously erroneous.”

45 FMSHRC Page 648
It is undisputed that the work being performed by Yates at the Mountain Pass Mine & 

Mill was winding down starting in March-April 2023. I credit the undisputed testimony of Hayes 

and French that work for welders was mostly completed at the time of Torres’s termination and 

that there was no remaining work for structural welders at the time of his termination. Torres had 

been a structural welder for much of his employment in 2023 and he was listed as a structural 

welder in Yates’s list of laid off employees, Yates Ex. R4, and on a disciplinary form, Yates Ex. 

R2 p. 2 

 I also credit the testimony of Hayes and French as to the method used when selecting 

people for layoff. Most importantly, I credit their testimony that, in any event, Torres would not 

have been one of the two millwrights that were still working as of the date of the hearing in this 

case. That is, if Torres had never complained about using the manlift to move the pipe or 

exercised his “stop work authority,” he would have been laid off prior to the date of the hearing. 

See Sec’y of Labor on behalf of Anderson v. A&G Coal Corp., 39 FMSHRC 315 (Feb. 2017) 

(discussing a judge’s “ability to review the totality of the evidence in determining whether the 

operator carried its burden of proving that the employee would have been included in the layoff 

for reasons wholly unrelated to protected activity.”). I specifically credit Hayes’s testimony that 

Torres lacked the skillset to be performing work at the facility during the testing and 

commissioning phase. The two millwrights who remained as of the date of the hearing had more 

experience and possessed the specific type of skills that were necessary during this phase. 

Further, according to Hayes, none of the remaining millwrights had the absenteeism/tardiness 

issues that Torres had. Hayes described the millwrights who remained after June 8 as 

“exceptional.” Moreover, it is highly likely the two remaining millwrights will be laid off soon 

because Yates’s work at the facility is almost completed. Indeed, Hayes, the millwright 

superintendent, became a victim of downsizing at the facility on June 8, 2023. 

 Finally, I credit the testimony of French that one of the currently employed millwrights 

would have to be laid off to accommodate Torres’s reemployment. The remaining millwrights are 

working about 20 hours a week on standby in case they are needed during testing and 

commissioning. The undisputed evidence establishes that Hayes and French honestly believed 

that Torres was not as qualified to do that work as other employees. Once material from the mine 

has been successfully processed by the facility and commissioning is complete, Yates will 

apparently no longer have any presence at the mine. If that work has not been completed by the 

date of this decision, it will be completed very soon. 

 In Sec’y of Labor on behalf of Ratliff v. Cobra Natural Resources, LLC, 35 FMSHRC 

394, 396 (Feb. 2013), the Commission held that “[w]hile the scope of temporary reinstatement 

proceedings is limited to determining whether the complaint is frivolously brought, we have 

permitted a limited inquiry to determine whether the obligation to reinstate a miner may be 

tolled.” There the Commission “reject[ed] the Secretary's argument that the judge . . . exceeded 

the scope of the temporary reinstatement hearing by considering whether the layoff tolled . . . 

[the operator’s] obligation to temporarily reinstate” the applicant, and instead held that during a 

temporary reinstatement hearing a “judge may appropriately consider evidence offered by an 

operator seeking to affirmatively show that reinstatement should be tolled because of a layoff 

due to business contractions or similar conditions.” Id. at 397. 

45 FMSHRC Page 649
 For the reasons stated above, I find that Yates demonstrated by a preponderance of the 

evidence, almost all of which was undisputed, that Torres would have been properly included in 

one of the many rounds of layoffs that occurred after April 13, 2023, even if he did not raise the 

safety issue involving the manlift or exercise his “stop work authority.” Given the rapidly 

dwindling Yates workforce at the facility, and the undisputed evidence that Torres lacked the 

skillset to be one of the remaining millwrights at the facility, I find that tolling is justified. I 

credit the testimony of Hayes and French on these facts. Their testimony was internally 

consistent, and they projected an honest demeanor. 

 Consequently, the obligation of Yates to reinstate Torres is TOLLED. If Yates recalls one 

or more journeyman millwrights or structural welders to work at the facility, Torres must be 

placed at the top of the recall list.28 

ORDER 

 

 For the reasons set forth above, I find that the Secretary established that Torres’s 

complaint of discrimination was “not frivolously brought,” as that term is understood in section 

105(c)(2) of the Mine Act and, accordingly, the Application for Temporary Reinstatement is 

GRANTED. For the reasons discussed above, Torres’s reinstatement is ORDERED to be 

TOLLED until further notice. If Yates determines that it needs to rehire one or more 

journeyman millwrights or structural welders at the facility it SHALL give Torres the right of 

first refusal for the position. Both the Secretary and this court shall be notified if Yates 

determines that it needs to reinstate anyone to those positions. The Secretary SHALL 

COMPLETE her investigation of the underlying discrimination complaint as quickly as 

possible.29 I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R § 

2700.45(e)(4). 

 /s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

 

28 There is no evidence that Yates is performing work at any other location that is subject 

to MSHA jurisdiction. 

29 Under section 105(c)(3), the Secretary is required to complete her investigation within 

90 days of receipt of the complaint of discrimination. 

45 FMSHRC Page 650
Distribution: (Certified Mail and email) 

Natasha Magness, Esq., Office of the Solicitor, United States Department of Labor, 300 Fifth 

Avenue, Suite 1120, Seattle, WA 98104 (magness.natasha.a@dol.gov) 

McCord Wilson, Esq., Rader and Campbell, 2777 N. Stemmons Freeway, Suite 1125 

Dallas, TX 75207 (mwilson@radercampbell.com) 

45 FMSHRC Page 651
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW 

JUDGES 1331 PENNSYLVANIA AVENUE, 

NW, SUITE 520N WASHINGTON, DC 

20004-1710 

TELEPHONE: 202-434-9987 / FAX: 202-434-9949 

July 7, 2023 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOL MINING COMPANY LLC, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2023-0141 

A.C. No. 46-09569-568207 

Mine: Itmann No. 5 

ORDER GRANTING MOTION TO CONTINUE, DEFERRING RULING ON 

MOTION TO BIFURCATE DOCKET, GRANTING CERTIFICATION OF 

QUESTION FOR INTERLOCUTORY REVIEW 

Respondent moved to continue the hearing scheduled for July 25, 2023, because of 

issues with witness availability for deposition and pending decisions on docket bifurcation 

and certification for interlocutory review of issues related to this Court’s denial of a 

proposed partial settlement. See Mot. to Continue, Docket No. WEVA 2023-0141, at 1–2 

(June 23, 2023). The Secretary has similarly expressed such intent. See Email from Robert 

S. Wilson, Attorney for the Department of Labor, to Christopher A. Jannace, Attorney 

Advisor to the Honorable Judge Michael G. Young (June 26, 2023; 8:56 a.m. ET). 

The Secretary previously moved to bifurcate two unresolved citations from four 

proposed for settlement. See S. Mot. to Bifurcate Docket, Docket No. WEVA 2023-0141, 

at 1 (June 12, 2023); see also S. Mot. to Approve Partial Settlement, Docket No. WEVA 

2023-0141, at 2 (May 9, 2023). I denied the proposed settlement, not on the merits of the 

contentions in support, but on the Secretary’s continued misstatement of two cases I 

previously held inapposite to the Secretary’s asserted unfettered authority to remove S&S 

designations. See Order Den. Mot. to Approve Settlement & Striking Material from Mot., 

Docket No. WEVA 2023-0141, at 1–3 (May 11, 2023). 

Acknowledging the parties’ discovery issues, and for the reasons set forth below, I 

hereby GRANT Respondent’s motion to continue the hearing, DEFER ruling on the 

Secretary’s motion to bifurcate the docket pending certification and decision by the 

Commission on the motion to certify an issue in this case for interlocutory review, and 

CERTIFY for interlocutory review the question impeding consideration of the motion to 

approve settlement. 

45 FMSHRC Page 652
I. Continuance of This Matter is Appropriate and Will Best Facilitate the 

Efficient Resolution of the Issues Before Me. 

The Secretary had requested that the citations proposed for settlement be bifurcated 

from those that appear to be progressing toward a resolution at hearing. The operator has 

now moved to continue those matters. 

I generally disfavor continuance for unresolved discovery, but I have approved an 

amendment of the gravity and negligence findings, and it is important to ensure that the 

operator is not prejudiced by that decision. See Order Granting S. Mot. to Amend Pet., 

Docket No. WEVA 2023-0141, at 2 (June 16, 2023). Furthermore, a continuance may 

allow related matters to be tried together, eventually. I therefore find it appropriate to 

continue the matter and to defer ruling on the motion to bifurcate until such time as it 

appears that the issues either must or may not be tried together. 

II. Certification of the Settlement Issue for Interlocutory Review is Appropriate. 

I am skeptical of the need to certify for interlocutory review an issue that may not 

even be a question of law, let alone a controlling question. Furthermore, as explained 

below, there is no reason why the Secretary should not comply with an order to remove 

material that a tribunal has deemed to be offensive. As has been explained ad nauseum to 

the Secretary, these cases have no bearing on the questions before me and will not be 

considered. Therefore, their absence will not affect the resolution of any issue before me. 

It would seem then that the more appropriate course would be to require the 

offending materials to be excluded, and to permit the Secretary to appeal the question of a 

tribunal’s authority to govern the proceedings before it after a final order has been issued. 

However, I do not have contempt or other power to enforce such an order. 

I further note that the Secretary seems not to care whether a final adverse order is 

issued or not. In a recent case, she appealed an approved settlement, apparently having 

conflated “adversely affected or aggrieved,” in section 113(d)(2)(A)(i) of the Act, with 

“annoyed.” See S. Pet. for Discretionary Rev., Docket No. WEVA 2023-0092 (June 9, 

2023) (“Pocahontas PDR”). While the Commission certainly does have the authority to 

grant review of important questions without a finding that a party has been adversely 

affected by a judge’s order, see 30 U.S.C. § 823(d)(2)(B) (2023), it is telling that the 

Secretary sought, again, to impose her priorities on the Commission. 

I will therefore CERTIFY the following questions to the Commission for 

interlocutory review, in order to break the impasse and permit this case to proceed toward 

resolution: 

1. Whether a Commission Judge may exclude, strike from the record, and refuse to 

consider material that is scandalous, impertinent, irrelevant, or otherwise 

inappropriate; and 

45 FMSHRC Page 653
2. If so, whether the citations to Mechanicsville Concrete and American 

Aggregates of Michigan are excludable on that basis. 

The parties are further ORDERED to continue coordinating with the Court to 

schedule a new hearing date and effect discovery as permitted by the procedural posture. 

III. The Secretary’s Citation to Mechanicsville Concrete and American 

Aggregates of Michigan Is Not the Result of a “Good Faith” Disagreement, 

but Rather a Blatant and Obvious Misstatement of the Law. 

While I have certified the question for interlocutory review, it is important for the 

Commission to understand why I have sanctioned the Secretary in this case. The Secretary 

has asserted that there is some relationship between Mechanicsville Concrete, Inc., 18 

FMSHRC 877 (June 1996), and American Aggregates of Michigan, Inc., 42 FMSHRC 570 

(Aug. 2020), and the question pending review—i.e. “Whether the Secretary has 

unreviewable discretion to remove an S&S designation.” See Pocahontas PDR at 2–3. But 

the language cherry-picked from those decisions, and relied upon by the Secretary, cannot 

support this groundless argument. 

For example, Mechanicsville Concrete noted that there is “no material difference 

between the Secretary’s [unreviewable] discretion on the one hand to vacate a citation . . . 

and his discretion on the other hand not to designate a citation as S&S.” Pocahontas PDR at 

4 (citing Mechanicsville Concrete, 18 FMSHRC at 879). But as the Secretary well knows, 

there is a material difference here. 

This case is not in an enforcement posture, where the Secretary has the discretion 

conferred by Congress and discussed at length in Mechanicsville Concrete. This case is 

before the Commission. And just as Congress granted the Secretary authority over 

enforcement, it granted adjudicatory authority to the Commission, not to the Secretary. 

See 30 U.S.C. § 830(k) (“No proposed penalty which has been contested before the 

Commission shall be compromised, mitigated, or settled except with the approval of the 

Commission.”) (emphasis added). This is black-letter statutory law. 

A close reading of Mechanicsville Concrete—not the thoughtless recitation of an 

out-of- context quote that the Secretary would have us consider as an “argument”—thus 

reveals a disturbing irony. Congress’ choices in crafting the Mine Act, and the 

Commission’s respect for the language and structure ordered by Congress are the very 

bedrock of that decision. 

The respect is obviously not mutual. Just as the Commission affirmed in 

Mechanicsville Concrete that the Secretary’s authority to assess S&S in the first instance is 

an enforcement function, the Commission also has affirmed—in accordance with the clear 

language of the Act— that the Commission, and not the Secretary, is responsible for 

approving settlements once a matter has been placed before the Commission. See The Am. 

Coal Co., 38 FMSHRC 1972 (Aug. 2016) (“AmCoal I”); The Am. Coal Co., 40 FMSHRC 

45 FMSHRC Page 654
983 (Aug. 2018) (“AmCoal II”).1

 The Secretary, though, continues to pretend as though this 

didn’t happen—that she had somehow prevailed in a matter that entitles her to cite as 

authority cases that have nothing to do with the Commission’s established standards for the 

approval of settlements. 

The citation to American Aggregates of Michigan is even more problematic. The 

language cited by the Secretary, see 42 FMSHRC at 576, is clearly dicta. It appears in a 

section titled “Commission Review” that begins by reaffirming that “Congress vested the 

Commission with authority to approve settlements of contested assessments,” citing the 

language of the Act in section 110(k) of the Act and the Commission’s decision in AmCoal 

I. Id. at 575 (emphasis added). 

In concluding in the next section of the opinion that the judge erred in not approving 

the settlement, the Commission led by clearly articulating the applicable legal standard, 

adopted in AmCoal I: “[T]he Commission and its judges consider whether the settlement of 

a proposed penalty is ‘fair, reasonable, appropriate under the facts, and protects the public 

interest.’” Id. At 576. The Commission further noted that its review must ensure that “a 

judge’s approval or rejection of a settlement” must be “‘fully supported’ by the record, 

consistent with the statutory penalty criteria, and not otherwise improper.” Id. (quoting 

Black Beauty Coal Co., 34 FMSHRC 1856, 1864 (Aug. 2012)). 

The disposition nowhere mentions or relies upon the Secretary’s exercise of 

prosecutorial discretion but concludes instead that the Judge “erred by denying the 

settlement on the basis of an inappropriate legal determination on S&S based on an 

undeveloped record and in contravention to the facts presented by the parties in support of 

the settlement.” Id. at 577. That is the holding of the case, and any second-semester law 

student who could not recognize it as such would be well advised to seek another line of 

work. 

There is, of course, more firmament supporting the unmistakable basis for the holding. 

The Commission noted that the problem was that the Judge’s decision was “not supported 

by the facts presented by the parties” and “misapprehended the correct legal standard” 

established by the Commission in the AmCoal cases. Id. at 577.22

1

 It is worth noting that Mechanicsville Concrete was decided decades before the 

Commission decisions in the AmCoal cases, which as explained, infra, unquestionably control 

the review of settlements by the Commission and its judges. 

2

 The Commission identified nine distinct factual circumstances related to the proposed 

gravity and negligence modifications, cited by the parties in the settlement motion, which should 

have been considered by the Judge, but were not. See 40 FMSHRC at 578–79. I concede the 

possibility that the Commission may find similarly deficient my evaluation of the facts in Knight 

Hawk and/or the other S&S cases I have rejected. But it is beyond question that my analysis will 

be assessed in accordance with the AmCoal standards. 

45 FMSHRC Page 655
In case there was any doubt about the governing standard applicable to settlements, 

and the authority for administering that standard, the Commission concluded its disposition 

by observing, again, that 

Primary authority to approve settlements of contested proposed assessments 

is vested by Congress to the Commission. 30 U.S.C. § 820(k); AmCoal I, 38 

FMSHRC at 1976. While such authority may be delegated to the 

Judges, the Commissioners retain such full authority to approve such 

settlements. Accordingly, we find the proffered penalty to satisfy AmCoal. 

Id. at 581. 

This is all from a case that the Secretary cites as support for her position that she has 

unreviewable discretion to remove an S&S designation in settling a matter that has been 

contested before the Commission. Where? How? The continued misuse of this authority 

amounts to a breach of the ethical duty of candor to the tribunal or a woeful ignorance of the 

law and how it operates, either of which reflects a flagrant disrespect for the law and the 

tribunals entrusted with its administration. 

The operative subtext here is that the Secretary has repeatedly tried to wrest from 

the Commission its statutory responsibilities under the Act. In addition to challenging the 

Commission’s authority to approve settlements in the AmCoal cases, the Secretary 

proposed a rule requiring the Commission to assess penalties in accordance with 30 C.F.R. 

Part 100, despite Congress’ clear grant of independent authority to assess penalties under 

the Act. See 30 U.S.C. § 820(i); Criteria and Procedures for Assessment of Civil Penalties, 

79 Fed. Reg. 44,494, 44,510– 11 (July 31, 2014). 

The intransigence continues with the offense present in this case. We are at this 

point because the Secretary has disregarded an order. Told not to include citations to cases 

that, as fully explained above, are not merely irrelevant to the issue for which they are 

offered but offensive to constitutional order, she has insisted on citing the cases anyway.3

 

One case, Mechanicsville Concrete, stands for the inverse of the Secretary’s 

argument— i.e., the Commission held that Congress’ assignment of responsibilities under 

the Mine Act must be respected. The other case, American Aggregates of Michigan, 

emphatically and unquestionably reinforces the Commission’s AmCoal standard for 

reviewing settlements under the Act and cannot be read to support the Secretary’s assertion 

that her authority must instead be unreviewable under any standard. 

3

 It is not the Secretary’s claim of unreviewable discretion itself—which is on review 

before the Commission—that has offended this Court, but the continued citation to cases I have 

ordered not be proffered before me because the patently have nothing to do with the issue on 

review or the issues before me in any proposed settlement. The Secretary need not cite them in 

support of her position, because they have no persuasive force, but she has nonetheless 

consciously chosen to disobey my order not to cite them. 

45 FMSHRC Page 656
Perhaps the Secretary cites these cases because she has no real legal support for her 

position. A true “good faith argument” in favor of expanding the scope of her unreviewable 

discretion would rely on the D.C. Circuit’s decision in Twentymile Coal Co., 456 F.3d 151, 

152 (D.C. Cir. 2006). Of course, citation to Twentymile would spotlight the glaring 

incongruity between the pure enforcement action there and the settlement review authority 

present here. 

Such review would also be required to concede that far from the absence of 

standards under which review of purely prosecutorial decisions might be conducted, see id. 

at 155 (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)), the Commission has spoken 

clearly in establishing such standards for the approval of settlements. And the Commission 

has also provided a standard for determining whether a violation of a mandatory health or 

safety standard is S&S.4

 

Beyond that, the Commission, and not the Secretary, is entitled to deference in the 

interpretation and administration of sections 110(i) and (k) of the Act, because Congress 

vested authority for the administration of those provisions in the Commission. And if ever 

there was a time when reflexive deference to the Secretary might have held some currency, 

that hour has passed. 

The Supreme Court has narrowed considerably the requirement to defer to the 

Secretary’s interpretation of her regulations. See Kisor v. Wilkie, 139 S. Ct. 2400, 2414–18 

(2019).5

 Further, there is a growing recognition of the separation of powers problems 

inherent with combined prosecutorial and adjudicatory authority. See Jarkesy v. SEC, 34 

F.4th 446, 461 (5th Cir. 2022) (quoting Mistretta v. United States, 488 U.S. 361, 372 

(1989)) (“Congress may grant regulatory power to another entity only if it provides an 

‘intelligible principle’ by which the recipient of the power can exercise it.”). 

4

 I have not made an S&S determination in rejecting any proposed settlement. Instead, I 

have affirmed every settlement agreement removing an S&S designation for which the answer to 

the question, “Would the Secretary be entitled to summary decision on the S&S question based 

on the facts presented by the parties?” has been, “No.” 

5

 It should also be noted that section 110(k) was enacted to prevent abuses of discretion 

by the Secretary, specifically regarding unsupported settlements that did little to enforce the Act 

and protect miner safety. AmCoal I, 38 FMSHRC at 1976 (quoting Black Beauty, 34 FMSHRC 

at 1862) (“[T]he 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.”); id. (quoting S. Rep. No. 95-181, at 44, reprinted in Senate Subcommittee on Labor, 

Committee on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 633 (1978)) (“‘By 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 the off-the-record negotiations are avoided.’”). The Secretary should not have the 

authority to interpret the provision to limit Commission review and enable the offensive 

settlements Congress intended to prevent. 

45 FMSHRC Page 657
The Commission does not have the latter problem, because Congress chose to 

separate enforcement from adjudication under the Act. The sanctity of that choice was 

recognized in Mechanicsville Concrete and its fulfillment has been evinced by the 

Commission’s decisions in the AmCoal cases and cases, including American Aggregates of 

Michigan, controlled by the standards enunciated therein. 

It is thus abundantly clear that the Secretary’s defense of the continued citation to 

these cases is meritless. Aristotle said, “The law is reason, free from passion.” But 

citations to the law, free from reason, are simple nonsense. Once the lack of any reasonable 

basis for an asserted legal authority has been pointed out to an attorney by a judge, it is 

incumbent on that attorney to cease engaging in malpractice. The issue presented here is 

about more than the mere choices made in the citation of cases. While I have certified a 

question for interlocutory review, an unasked and important question is, “Who determines 

the appropriate minimum standards of competence and conduct before a tribunal—the 

tribunal or a party litigant?” 

Is there a county magistrate anywhere in the country who would not be offended by 

the mere suggestion of this inversion of authority? I doubt it, and if the Commission has 

any self- regard, it will rebuke the Secretary, as I have done, for her disregard for 

constitutional order and the rule of law, manifested in her continuing contempt for the 

authority of the Commission and its decisions and orders. 

/s/ Michael G. Young 

Michael G. Young 

Administrative Law Judge 

Attachments: 

Appendix A: Secretary of Labor’s Motion to Approve Partial Settlement, Docket No. 

WEVA 2023-0141 (May 9, 2023) 

Appendix B: Order Denying Motion to Approve Settlement and Striking Material 

from Motion, Docket No. WEVA 2023-0141 (May 11, 2023) 

Appendix C: Secretary of Labor’s Motion to Bifurcate Docket, Docket No. WEVA 2023-

0141 (June 12, 2023) 

Appendix D: Secretary’s Motion for Certification for Interlocutory Review and Stay 

Pending Review, and Renewed Motion to Bifurcate, Docket No. WEVA 2023-0141 (June 

20, 2023) 

Appendix D: Motion to Continue, Docket No. WEVA 2023-0141 (June 23, 2023) 

45 FMSHRC Page 658
Appendix E: Decision Approving Settlement With Significant Reservations, 

Docket No. WEVA 2023-0092 (May 12, 2023) 

Appendix F: Secretary’s Petition for Discretionary Review, Docket No. WEVA 2023-

0092 (June 9, 2023) 

Distribution: 

Robert S. Wilson, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, 

Suite 401, Arlington, VA 22202-5450, wilson.robert.s@dol.gov

D. Cass Trent, CLR, U.S. Department of Labor, MSHA, 4499 Appalachian Hwy, Pineville, 

WV 24874, trent.david@dol.gov

Jim McHugh, Hardy Pence LLC, 10 Hale Street, 4th Floor, P.O. Box 2548, Charleston, WV 

25329, jmchugh@hardypence.com

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

15317, craigaaron@consolenergy.com

45 FMSHRC Page 659
APPENDIX A 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. WEVA 2022-0141 

Petitioner : Assessment Control No. 46-09569-568207 

: 

v. : 

: Mine ID: 46-09569 

Consol Mining Company LLC, : Mine: Itmann No. 5 

Respondent : Administrative Law Judge Young 

SECRETARY OF LABOR’S MOTION TO 

APPROVE PARTIAL SETTLEMENT 

The Secretary of Labor files this Motion to Approve Partial Settlement, and in support 

hereof respectfully submits the following. 

1. This case involves six 104(a) citations of which four the parties have reached agreement 

on a settlement. The two remaining citations (Nos. 9590300 and 9590301) are scheduled 

for hearing July 25, 2023. The Mine Safety and Health Administration (“MSHA”) 

proposed civil penalties for the citations at issue in accordance with the statutory penalty 

criteria in § 110(i) of the Mine Act, 30 U.S.C. § 820(i). The penalties were regularly 

assessed pursuant to 30 C.F.R. § 100.3 

2. Respondent is the operator of the Itmann mine, Mine ID Number 46-09569, the products 

of which enter commerce, or the operations or products which affect commerce within 

the meaning of Section 4 of the Act. 

3. Representatives for the parties have considered the alleged violations, the six statutory 

criteria stated in § 110(i) of the Act, and other non-monetary considerations that fall 

outside of § 110(i) but that support settlement, and propose to modify the penalties for the 

settled citations as follows: 

45 FMSHRC Page 660
Citation 

MSHA’s 

Proposed 

Penalty 

Settlement 

Amount Other modifications to citation 

9569452 $1,869 $840 Modify negligence to low 

9569457 $563 $133 Modify from reasonably likely to unlikely and 

from S&S to Not S&S 

9569459 $133 $133 Modify negligence to none 

9569462 $909 $407 Modify negligence to low 

Total $3,474 $753

4. The legal standard for evaluating proposed penalty reductions is whether the proposed 

reductions are fair, reasonable, appropriate under the facts, and protect the public interest. 

American Coal Company, 40 FMSHRC 983, 987 (Aug. 2018) (citing American Coal 

Company, 38 FMSHRC 1972, 1976 (Aug. 2016)). 

5. Consistent with Commission precedent, the Secretary has evaluated the enforcement 

value of the compromise and is maximizing his prosecutorial impact in partially settling 

this case on appropriate terms. See American Coal Company, 40 FMSHRC 983, 989 

(Aug. 2018). Further, the Secretary has considered the deterrent value of the penalty and 

obtaining a partial resolution to this matter. See American Coal Company, 40 FMSHRC 

765, 766 n.1 (June 2018). A partial resolution of this matter in which some violations are 

resolved is of significant enforcement value to the Secretary. The fact that the Secretary 

modified the citations in this case is immaterial, as the Secretary’s evaluation of these 

citations, as modified, remain preserved for future enforcement actions and are not 

subject to potential vacatur or further downward adjustment after a hearing. 

6. To assist the Commission in evaluating whether the proposed penalty reductions are fair, 

reasonable, adequate under the facts, and in the public interest, the Secretary presents the 

following information. As described more fully below with respect to each citation, and 

45 FMSHRC Page 661
unless otherwise stated, the parties agree to disagree, and the proposed penalty 

modifications to these citations are acceptable to the parties in lieu of the hearing process. 

A. Citation 9569452 – Respondent argues the condition was likely caused by 

equipment tramming through the area and could have occurred at any time 

without management’s knowledge. MSHA recognizes that condition could have 

occurred at any time and without warning. The parties have agreed that the 

citation shall be modified to low negligence with a recalculation of the penalty 

from $1,869 to $840 per Part 100. 

B. Citation 9569457 – Respondent argues that the cited area was infrequently 

traveled because it was on the tight side of the belt, between the rib and the belt, 

and was in an outby area. Respondent also argues that the cited section of rib was 

not likely to fail, required significant force with a pry bar to pull and disputes the 

statement that the section of rib was pulled with little effort. Taking into account 

the uncertainty of the outcome of these issues at trial, the Secretary has decided to 

exercise her discretion to modify the gravity to unlikely and not S&S as 

recognized in Am. Aggregates of Michigan, Inc., 42 FMSHRC 570, 576-79 (Aug. 

2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879-80 (June 

1996)). The parties have agreed that the citation shall be affirmed as otherwise 

issued and the penalty is recalculated to $133 per Part 100. 

C. Citation 9569459 – Respondent would argue at hearing that the citation should be 

vacated because the cited fire suppression system was in proper working 

condition and free of any defects. The cited condition was the normal result of 

mining in the face and the material would have been removed prior to taking the 

45 FMSHRC Page 662
next cut. The parties have agreed to settle the citation by modifying the 

negligence to none. The penalty remains at $133. 

D. Citation 9569462 – Respondent argues that the cited materials resulted from a 

combination of spillage, sloughage o the ribs and the scoop cleaning the area 

creating windrows. The parties agree to modify the citation to low negligence 

which lowers the penalty to $407 per Part 100. 

7. In accordance with 29 C.F.R. § 2700.31(b)(2), the undersigned representative for the 

Secretary certifies that Respondent has authorized the Secretary to represent that 

Respondent consents to the granting of this motion for approval of partial settlement and 

the entry of the proposed Order Approving Partial Settlement. 

8. The parties submit that the foregoing penalty reductions are fair, reasonable, appropriate 

under the facts, and protect the public interest. 

9. The parties agree to bear their own attorney’s fees, costs, and other expenses incurred by 

the parties in connection with any stage of the above referenced proceedings, including 

attorney’s fees which may be available under the Equal Access to Justice Act, as 

amended. 

10. Except for proceedings under the Act, nothing contained herein is intended by 

Respondent to constitute an admission of a violation of the Act or regulations. Further, 

except for proceedings under the Act, nothing contained herein is intended by 

Respondent to constitute an admission of civil liability under any local, state or federal 

statute or any principle of common law. 

11. Within 30 days of an order approving this settlement, the Respondent shall pay a penalty 

of $753.00 at www.pay.gov or by sending a check made payable to “U.S. Department of 

45 FMSHRC Page 663
Labor/MSHA” and mailed to the following address: P.O. Box 790390, St. Louis, MO 

63179-0390. 

WHEREFORE, the parties move the Administrative Law Judge to approve the above 

partial settlement agreement pursuant to 29 C.F.R. § 2700.31 and to order payment of the 

proposed penalty of $753.00. 

Mailing Address: Respectfully submitted, 

Office of the Solicitor Seema Nanda 

Division of Mine Safety and Health Solicitor of Labor 

U.S. Department of Labor 

201 12th Street, Suite 401 April E. Nelson 

Arlington, VA 22202-5450 Associate Solicitor for Mine Safety and Health 

Jason Grover 

Counsel 

/s/Robert S. Wilson 

Robert S. Wilson 

Attorney 

UNITED STATES DEPARTMENT OF LABOR 

Attorneys for Petitioner 

CERTIFICATE OF SERVICE 

I hereby certify that on May 9, 2023, a copy of the foregoing Secretary of Labor’s Motion 

to Approve Partial Settlement was served by Electronic Mail on the following: 

James P. McHugh 

jmchugh@hardypence.com

Craig Aaron 

craigaaron@consolenergy.com

/s/Robert S. Wilson 

Robert S. Wilson 

Attorney 

45 FMSHRC Page 664
APPENDIX B 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9987 / FAX: 202-434-9949 

May 11, 2023 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOL MINING COMPANY LLC, 

Respondent 

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2023-0141 

A.C. No. 46-09569-568207 

Mine: Itmann No. 5 

ORDER DENYING MOTION TO APPROVE SETTLEMENT 

AND STRIKING MATERIAL FROM MOTION 

On April 25, 2023, a Commission ALJ issued an order noting with disapproval the 

Secretary’s ongoing citation to Mechanicsville Concrete, Inc., 18 FMSHRC 877, 880, 882 (June 

1996), as authority for her removal of the significant and substantial designations from citations 

during the settlement process. See Decision Approving Settlement with Significant 

Reservations, Docket no. PENN 2022-0129, at 4–6 (Apr. 25, 2023) (ALJ) (“Reservations”). 

Commission judges have routinely observed that Mechanicsville, and the also oft-cited American 

Aggregates of Michigan, Inc., 42 FMSHRC 570, 576 (Aug. 2020), cannot support the premise 

for which they have been cited.1

In this instance, though, the Judge correctly pointed out that parties have a duty not to 

misstate case law and that such misconduct has been affirmed as sanctionable under Rule 11 of 

the Federal Rules of Civil Procedure. See Reservations at 6 (citing Teamsters Local No. 579 v. B 

& M Transit, Inc., 882 F.2d 274, 280 (7th Cir. 1989)). 

Following this, I issued an order on May 3 denying a motion to approve settlement, in 

which I said that the continued citation to these cases as authority for the removal of S&S 

designations falls below the minimum standards of practice before the Commission. See Order 

Accepting Appearance and Denying Motion to Approve Settlement, Docket No. WEVA 2023- 

0071, at 7 (May 3, 2023) (ALJ). I said that a conference and litigation representative who 

submitted a motion with such citations would be barred from practice before me. Id. 

1 See Decision Approving Settlement, Docket No. SE 2023-0046, at 2 (Apr. 24, 2023); Order 

Denying Settlement, Docket No. WEST 2022-0249, at 5 (Nov. 2, 2022) (ALJ); Order Denying 

Settlement, Docket No. WEST 2022-0267 & WEST 2022-0268, at 11 (Oct. 18, 2022) (ALJ). 

45 FMSHRC Page 665
I also said that there might be other consequences. I noted that an attorney should know 

better, and that such misstatements of the law by an attorney would be even more egregious. Id. 

at 7 n.5. The supervising attorney for the Labor Department’s CLR’s was included in the 

distribution for the order. 

On May 9, the Secretary filed with the Commission a Motion to Approve Partial 

Settlement, which again included the offending citations to Mechanicsville and American 

Aggregates. See S. Mot. to Approve Partial Settlement, Docket No. WEVA 2023-0141, at 3 

(May 9, 2023). Not only is the recitation of these cases obviously inappropriate; it is 

impertinent. To my knowledge, no Commission judge has agreed with this mischaracterization 

of the law, and I have approved dozens of S&S removals without ever considering either case as 

authority for the removal. Rather than adhering to the clearly-expressed expectations of the 

Commission’s judges, the Secretary has continued to recite this non-sequitur any time an S&S 

designation is proposed for removal in a settlement. 

An attorney for a government agency who misstates the law arrogates the properly 

conferred constitutional authority of others to determine what the law is. Like bridge scour, this 

subtle corrosion wears on the foundation of the rule of law and threatens the integrity of a 

structure upon which the public depends. 

While the full array of sanctions under Rule 11 may not be available as a corrective, I 

have made clear that misleading use of precedent fails to meet the minimum standards of 

practice before the Commission. Its redress begins with a refusal to accept the unacceptable. By 

this order, I therefore STRIKE the reference to the cited cases and the assertions they 

purportedly support.2

Striking material, and even professional sanctions, are appropriate responses to bad faith 

employment of case law. See Collar v. Abalux, Inc., 806 Fed. Appx. 860, 864 (11th Cir. 2020) 

(affirming sanctions where an attorney continually misstated the import of case law); KamdemOuaffo v. Huczko, 810 Fed. Appx. 82, 83 (3d Cir. 2020) (citing Fed. R. Civ. P. 12(f)) (noting that 

impertinent analysis of law is “plainly vulnerable to [] remedial strike”). Striking the impertinent 

matter from the motion is the least severe sanction I could impose in these circumstances. As 

with the Mine Act, those who persist in the discredited and misleading use of precedent should 

reasonably anticipate that their conduct will be deemed knowing or intentional and will be 

addressed with progressive severity until the practice is discontinued. 

The motion to approve settlement is DENIED without reaching the merits. This denial 

will be reconsidered if the parties refile the motion without the noted language, see supra note 2. 

The parties should anticipate that the matters addressed by the motion will be resolved at hearing 

2

 The language to be stricken from the motion reads: “Taking into account the uncertainty of the 

outcome of these issues at trial, the Secretary has decided to exercise her discretion to modify the 

gravity to unlikely and not S&S as recognized in Am. Aggregates of Michigan, Inc., 42 

FMSHRC 570, 576-79 (Aug. 2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 

879-80 (June 1996)).” Mot. at 3. 

45 FMSHRC Page 666
unless and until a motion that meets the standards of practice before the Commission has been 

filed. 

Michael G. Young 

Administrative Law Judge 

Distribution: 

Robert S. Wilson, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite 

401, Arlington, VA 22202-5450, wilson.robert.s@dol.gov

D. Cass Trent, CLR, U.S. Department of Labor, MSHA, 4499 Appalachian Hwy, Pineville, WV 

24874, trent.david@dol.gov

Jim McHugh, Hardy Pence LLC, 10 Hale Street, 4th Floor, P.O. Box 2548, Charleston, WV 

25329, jmchugh@hardypence.com

Craig Aaron, CONSOL Energy Inc., 275 Technology Drive, Suite 101, Canonsburg, PA 15317, 

craigaaron@consolenergy.com

45 FMSHRC Page 667
APPENDIX C 

UNITED STATES OF AMERICA 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WASHINGTON, DC 

SECRETARY OF LABOR, ) CIVIL PENALTY PROCEEDING 

U.S. DEPARTMENT OF LABOR (MSHA) ) 

Petitioner, ) Docket No. WEVA 2023-141 

) A.C. No. 46-09569-568207 

v. ) 

) Mine: Itmann No. 5 

CONSOL MINING COMPANY, LLC, ) Mine ID: 46-09569 

Respondent. ) 

) The Honorable Judge Michael Young 

SECRETARY OF LABOR’S MOTION TO BIFURCATE DOCKET 

The Secretary moves that the Administrative Law Judge issue an Order bifurcating this 

docket into two dockets so that the case can proceed to hearing on the two unresolved citations in 

the docket and so the Secretary can pursue an appeal of the May 11, 2023, Order Denying 

Motion to Approve Partial Settlement and imposing sanctions issued by the ALJ. 

1. This docket contains six 104(a) citations. The parties reached a settlement agreement 

resolving four of the citations. The parties have not reached settlement of the two remaining 

citations, Nos. 9590300 and 9590301. A hearing is scheduled for July 25, 2023. The parties are 

engaged in ongoing discovery and hearing preparation for the two unresolved citations. 

Depositions are scheduled for June 28 and 29. The Secretary recently filed a motion to amend 

the petition seeking to increase the gravity and negligence findings for the two unresolved 

citations and to seek correspondingly increased penalties. (See Secretary of Labor’s Motion to 

Amend Petition dated June 6, 2023) 

2. The Secretary filed a Motion to Approve Partial Settlement on May 9, 2023, seeking 

approval of the penalty reductions agreed to by the parties on the four settled citations. The 

Administrative Law Judge issued an Order Denying Motion to Approve Settlement and Striking 

45 FMSHRC Page 668
Material from the Motion dated May 11, 2023. That Order denied the motion to approve partial 

settlement, imposed sanctions on the Secretary and threatened additional more severe sanctions 

in the future. The purpose of this current motion is to advance the progress and resolution of this 

case and does not address the merits of the court’s May 11 Order. However, the Secretary has 

filed a Petition for Discretionary Review with the Commission, seeking review of that Order, 

dated June 9, 2023. 

3. Meanwhile, the parties are faced with uncertainty on how to proceed with the matter. 

The parties continue to prepare for hearing on the two citations that have not been settled but it is 

unclear how that hearing will proceed. The parties do not want to expend time and resources on 

the four citations on which the parties agree. On the other hand, the parties do not want to appear 

at the hearing and be unprepared to address citations that the court expects to be addressed. 

Additionally, the issues raised and addressed in the Order Denying Partial Settlement do not 

apply to the two remaining citations in the docket that have not been settled. 

4. As a solution to the above stated uncertainty and the conundrum that the parties face, 

the Secretary moves that the court issue an Order bifurcating Docket WEVA 2023-0141 into two 

dockets. The newly created docket would contain the two citations not addressed in the 

Secretary’s Motion to Approve Partial Settlement. The four citations that are addressed in that 

motion would remain in Docket WEVA 2022-411. The Secretary will pursue appropriate 

appellate remedies to challenge the denial of the motion, the imposition of sanctions and the 

threat of additional more severe sanctions. The remaining citations, Nos. 9590300 and 9590301, 

could then be addressed apart from that dispute and would proceed to hearing on July 25. 

5. Delaying resolution of the citations not directly involved in the May 11 Order would 

negatively impact the administration of the Act and would be contrary to the safety promoting 

45 FMSHRC Page 669
purpose of the Act. A primary purpose of the Act is to protect miners from hazardous conditions. 

The company has challenged the S&S findings for the two remaining citations. Citation 9590300 

involves an inadequately insulated electrical trailing cable exposing miners to an electrical shock 

or electrocution hazard. Citation 9590301 involves an inadequately supported section of rib 

which exposed miners to a rib fall hazard. Consol’s refusal to acknowledge that these violations 

contributed to these serious hazards and posed a serious risk of injury raises concerns about 

Consol’s future compliance with the Act. A final resolution of these citations and imposition of 

an appropriate civil penalty will encourage compliance and will promote protection of Consol’s 

workforce. 

6. From the company’s perspective, expeditious resolution of the citations is also 

important. Should Consol prevail on the S&S issues, prompt resolution of those issues is 

important because the mine’s pattern of violations status is based on issued citations and so long 

as the citations remain unresolved, those violations count towards the mine’s POV status. 

7. There are additional reasons why prompt finality of the violations at issue promotes 

the efficient administration of the Act. Pursuant to Part 100.3(c) of the Secretary’s penalty 

regulations, violations are not counted as part of a mine’s history of violations until the violation 

is final. Bifurcating this matter will allow the other citations at issue to become final while the 

settlement dispute is resolved. Bifurcation and separately addressing the remaining citations will 

also allow for the timelier imposition of civil penalties for those violations. Prompt assessment 

and collection of civil penalties for final violations promotes the purpose of the Act and delay in 

the assessment and collection of those penalties has the opposite effect. Civil penalties are 

recognized as an important tool in encouraging compliance by mine operators. Allowing these 

citations to flounder while the settlement issue is resolved will undercut the purpose of the Act 

45 FMSHRC Page 670
by unnecessarily delaying the finality of those violations and the imposition of civil penalties. 

Resolution of the issue raised in the court’s May 11 Order could conceivably take years pending 

consideration by the Commission and then possibly a court of appeals. 

8. For the above reasons, the Secretary moves that an Order be issued bifurcating Docket 

WEVA 2023-0141 into two separate dockets, that the hearing scheduled for July 25 proceed and 

be limited to consideration of Citations 9590300 and 9590301. 

9. The undersigned has conferred with counsel for Consol and he has indicated that 

Consol takes no position on the motion at this time but reserves the right to file a response to the 

motion pursuant to Commission Rule 10(d). 

WHEREFORE, the Secretary moves that an Order be issued bifurcating this docket, 

creating a new docket, transferring Citation Nos. 9590300 and 9590301to the new docket, and 

proceeding on those citations as discussed above. 

Mailing Address: Respectfully submitted, 

Office of the Solicitor Seema Nanda 

Division of Mine Safety and Health Solicitor of Labor 

U. S. Department of Labor 

1201 12th Street South April E. Nelson 

Arlington, VA 22202-5450 Associate Solicitor for Mine Safety and Health 

(202) 693-9325 

Jason Grover 

Counsel for Trial Litigation 

/s/Robert S. Wilson 

Robert S. Wilson 

Senior Trial Attorney 

Attorneys for Secretary of Labor (MSHA) 

45 FMSHRC Page 671
CERTIFICATE OF SERVICE 

I hereby certify that on June 12, 2023, a true and correct copy of the foregoing Secretary 

of Labor’s Motion to Bifurcate was sent via email attachment to: 

James P. McHugh 

jmchugh@hardypence.com

/s/ Robert S. Wilson 

Robert S. Wilson 

Senior Trial Attorney 

45 FMSHRC Page 672
APPENDIX D 

UNITED STATES OF AMERICA 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WASHINGTON, DC 

SECRETARY OF LABOR, ) CIVIL PENALTY PROCEEDING 

U.S. DEPARTMENT OF LABOR (MSHA) ) 

Petitioner, ) Docket No. WEVA 2023-141 

) A.C. No. 46-09569-568207 

v. ) 

) Mine: Itmann No. 5 

CONSOL MINING COMPANY, LLC, ) Mine ID: 46-09569 

Respondent. ) 

) �e Honorable Judge Michael Young 

SECRETARY’S MOTION FOR CERTIFICATION FOR INTERLOCUTORY REVIEW 

AND STAY PENDING REVIEW, AND RENEWED MOTION TO BIFURCATE 

�e Secretary moves that the Administrative Law Judge certify for interlocutory review 

this question: whether the May 11, 2023, Order Denying Motion To Approve Settlement And 

Striking Material From Motion is an abuse of discretion. �e Secretary also renews her motion to 

bifurcate and moves for stay of part of the bifurcated docket pending interlocutory review. �is 

will enable the Secretary to appeal the May 11 order while not delaying the resolution of the rest 

of this case. 

Background 

1. On May 9, 2023, the Secretary filed a motion to approve partial settlement in this 

case. �e motion explained that the Secretary decided to modify the negligence on three 

violations in this docket, and on a fourth, to modify the gravity and remove the S&S designation. 

2. On May 11, 2023, the Administrative Law Judge issued an order denying that motion 

and sanctioning the Secretary for articulating her legal position—currently on appeal—that she 

has unreviewable discretion to remove S&S designations. �e order also said that the Secretary 

should expect increasingly severe sanctions if the Secretary articulates that position in the future. 

45 FMSHRC Page 673
3. On May 12, 2023, in Pocahontas Coal Company LLC, WEVA 2023-0092, the 

Administrative Law Judge issued an Order Approving Settlement with Significant Reservations 

in which he put the Secretary’s representative on notice that articulating the Secretary’s position 

on S&S removals would result in future sanctions. 

4. On June 9, 2023, the Secretary filed a petition for discretionary review of both the 

May 11 order in this case and the May 12 Pocahontas order with the Commission. 

5. On June 16, 2023, the Commission granted the Secretary’s petition in Pocahontas but 

denied it, without prejudice, in this case. �e Commission reasoned that the May 11 order was 

not a final Administrative Law Judge’s order, so interlocutory review was the appropriate way to 

obtain Commission review. �e Commission also noted that the Secretary’s motion to bifurcate 

is pending, and that bifurcating this matter “would both facilitate potential Commission 

interlocutory review and prevent any unintentional delays leading up to the scheduled hearing on 

the unresolved citations.” 

Certification for Interlocutory Review 

6. Interlocutory review is appropriate when a ruling 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). 

7. �e May 11 order is based on two legal conclusions: that the Secretary does not have 

unreviewable discretion to remove S&S designations, and that it is a sanctionable misstatement 

of law to take the position that she does. If those conclusions are wrong, then the order is an 

abuse of discretion. The Am. Coal Co., 38 FMSHRC 1972, 1984 (Aug. 2016) (“An abuse of 

discretion may be found . . . if the decision is based on an improper understanding of the law.”). 

�e Secretary seeks certification of questions that will determine whether those conclusions are 

45 FMSHRC Page 674
wrong. �ose questions therefore are controlling, and certification and would materially advance 

the final disposition of the proceedings. See Wright & Miller, Federal Practice and Procedure 

§ 3930 (3d ed.) (“�ere is no doubt that a question is ‘controlling’ if its incorrect disposition 

would require reversal of a final judgment, either for further proceedings or for a dismissal that 

might have been ordered without the ensuing district-court proceedings.”). 

8. Certification also is appropriate because the same question—whether it is an abuse of 

discretion to sanction the Secretary for articulating her legal position on S&S removals—is now 

pending review in Pocahontas. �ere is no briefing schedule in that case yet, so certification 

would not delay the resolution of the issue, and it would be efficient to permit the Commission to 

resolve this case at the same time as it resolves Pocahontas. 

Bifurcate 

9. �e Secretary renews her June 12, 2023, motion to bifurcate. It would be efficient to 

bifurcate this case for the reasons explained in that motion, and for the reasons contained in the 

Commission’s order denying discretionary review in this case. 

Stay Pending Review 

10. If the motion to bifurcate is granted, the Secretary moves for a stay of this docket 

(containing the four settled citations, not the docket containing the two citations to be tried) 

pending interlocutory review. A stay would allow the underlying legal issues to be resolved, 

allow the Secretary to preserve her legal position, and allow the parties to preserve the settlement 

to which they have agreed. 

11. �e Administrative Law Judge has stayed other similar cases in which settlement 

denials are pending interlocutory review by the Commission. See, e.g., Order Denying 

Certification for Interlocutory Review and Staying Proceedings, Peabody Gateway N. Mining, 

45 FMSHRC Page 675
LLC, No. LAKE 2023-0043 (FMSHRC Mar. 8, 2023) (ALJ); Order Denying Mot. to Approve 

Settlement, Certifying Case for Interlocutory Review, and Staying Proceedings, Bluestone Oil 

Corp., Nos. WEVA 2022-0176 et al. (FMSHRC Oct. 31, 2022) (ALJ). It would be fair to 

Consol, and to the Secretary, to take the same approach in this case. 

12. �e undersigned has conferred with counsel for Consol; it takes no position on the 

Secretary’s motion. 

Mailing Address: 

Office of the Solicitor 

Division of Mine Safety and Health 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

(202) 693-9325 

Respectfully submitted, 

Seema Nanda 

Solicitor of Labor 

April E. Nelson 

Associate Solicitor 

Jason Grover 

Counsel for Trial Litigation 

/s/ Robert S. Wilson 

Robert S. Wilson 

Senior Trial Attorney 

Attorneys for Secretary of Labor (MSHA) 

45 FMSHRC Page 676
Certificate of Service 

I hereby certify that on June 20, 2023, a true and correct copy of the foregoing motion was sent 

via email attachment to: 

James P. McHugh 

jmchugh@hardypence.com 

/s/ Robert S. Wilson 

Robert S. Wilson 

Senior Trial Attorney 

45 FMSHRC Page 677
APPENDIX E 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202 434-9987 / FAX: 202 434-9949 

May 12, 2023 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

POCAHONTAS COAL COMPANY LLC, 

Respondent 

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2023-0092 

A.C. No. 46-08878-565698 

Mine: Affinity Mine 

ORDER ACCEPTING APPEARANCE 

DECISION APPROVING SETTLEMENT WITH SIGNIFICANT RESERVATIONS 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Young 

This case is before me upon petition for assessment of civil penalty under Section 105(d) 

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

Approve Settlement and has set forth the factual basis for the proposed modifications. The 

Respondent has agreed to the proposed changes. The originally assessed amount for the citation 

at issue was $3,171.00, and the proposed settlement amount is $2,695.00. 

It is ORDERED that the Conference and Litigation Representative (CLR) be accepted to 

represent the Secretary in accordance with the notice of limited appearance he has filed with the 

penalty petition. Cyprus Emerald Resources Corporation, 16 FMSHRC 2359 (Nov. 1994). 

The proposed settlement includes: 

Citation/Order 

No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modifications 

9550934 $169.00 $169.00 None. 

9550935 $169.00 $169.00 None. 

9550936 $169.00 $169.00 None. 

45 FMSHRC Page 678
Citation/Order 

No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modifications 

9550403 $133.00 $133.00 None. 

9550937 $169.00 $169.00 None. 

9550938 $169.00 $169.00 None. 

9550939 $183.00 $183.00 None. 

9550940 $169.00 $169.00 None. 

9550941 $198.00 $198.00 None. 

9550942 $188.00 $188.00 None. 

9550943 $169.00 $169.00 None. 

9550404 $169.00 $169.00 None. 

9557339 $610.00 $134.00

Modify gravity from “Reasonably Likely” 

to “Unlikely,” and from “S&S” to “NonS&S,” and negligence from “Moderate” to 

“Low.” 

9551135 $169.00 $169.00 None. 

9551136 $169.00 $169.00 None. 

9551137 $169.00 $169.00 None. 

Total $3,171.00 $2,695.00

The parties have set forth the justification for the modifications in the motion filed by the 

Secretary. As required by the Mine Act, I have reviewed the motion and penalty criteria and 

evaluated the proposed settlement pursuant to the requirements set forth in Sections 110(i) and 

110(k). The parties agree to the size of this operator, good faith abatement, and the ability to 

pay. The history of violation has been considered. The negligence and gravity of the violation 

are addressed in the motion, in the citations, and in the file in general. 

Citation 9557339 concerns a failure to conduct a required methane test. The cited 

provision states: 

A qualified person shall make tests for methane—(iii) At 20-minute intervals, or 

more often if required in the approved ventilation plan at specific locations, 

during the operation of equipment in the working place. 

30 C.F.R. § 75.362(d)(1)(iii) (2023). The citation reads, in part: 

The roof bolt operators installing permanent roof support on the No. 3 active 

section (005-0 / 002-0 MMU’s) in the 5X6 cross-cut exceeded the 20 minute 

required methane test. The roof bolt operators were being observed installing 

bolts, when 25 minutes elapsed and no attempted [sic] was made to take the 

required methane test. Asked the operators what time was the last methane test 

was [sic] taken, both operators could not say when the methane test was made. 

45 FMSHRC Page 679
The roof bolting machine was shut off and an examination was made with an 

extendable probe and large display CH4 detector. This mine is on a 10 day 

methane spot. 

Citation No. 9557339 (Sept. 8, 2022). 

The Secretary submitted a settlement motion on April 19, 2023, but I expressed my 

reservations caused by the inadequate support for the removal of the S&S designation. See 

Email from Christopher A. Jannace, Attorney Advisor to the Honorable Judge Michael G. 

Young, to Douglas W. Johnson, CLR, MSHA (Apr. 20, 2023; 10:25 a.m. ET). In her amended 

motion, the Secretary provided more thorough Respondent contentions challenging the 

likelihood of the hazard occurring: 

The Respondent would have argued at hearing that no methane was found on the 

section during numerous pre and on-shift examinations prior to the issuance of 

this citation and that this is normal for this mine. Though this mine does liberate 

substantial amounts of methane and is a “spot” inspection mine, most methane 

enters the mine’s ventilating area from worked out areas where methane enters the 

mine through cracks in the mine floor from a coal seam below that develop after a 

panel or area has been mined. 

The mine had no prior history of methane inundations from active 

workings of the mine nor any history of methane ignitions. The Respondent 

would have argued that a hazardous accumulation of methane in the face area 

where this bolting machine was operating was highly unlikely and virtually 

impossible with even a modest quantity of ventilating air. The quantity of 

ventilating air in this face area where the roof bolter was operating was in 

compliance with the mine’s approved ventilation plan which experience has 

shown to be more than capable of diluting hazardous gases including methane and 

dust, rendering them harmless and carrying them away. 

The inspector, a roof control specialist, observed the roof bolting crew 

perform work in this area for approximately twenty-five (25) minutes before 

issuing this citation. Had the inspector reasonably believed that the cited 

condition presented a hazard, such that the condition warranted an S&S issuance, 

then he likely would not have permitted the miners to be unnecessarily exposed to 

the alleged S&S hazard for an additional five (5) minutes. Additionally, the area 

was nearly bolted and only a few minutes work remained to complete the bolting 

cycle. Thus, the miners were near the face area at the time of issuance and no 

methane was detected at any time. 

Both of these roof bolter operators carried properly calibrated multi-gas 

detectors which would have provided an alarm of elevated methane should it be 

encountered. Upon issuance of the citation, they backed the roof bolting machine 

out of the cut and ran the remote “probe”, containing a methane detector, up into 

the face area to take the required 20 minute gas check as part of the abatement 

45 FMSHRC Page 680
effort. The probe went just as far as the two miners had been standing moments 

before with their own multi-gas detectors. No methane was found by the remote 

probe. 

S. Mot. to Approve Settlement, at 3–5 (May 11, 2023). 

Parties must “provide facts in support of the modification for each violation,” 29 C.F.R. § 

2700.31(b) (2022) (emphasis added), so that Commission judges may “set forth reasons for 

approval,” id. § 2700.31(g), when reviewing settlements under the AmCoal factors, 30 U.S.C. § 

820(k) (2023). The provided facts should therefore be substantive and relevant and, taken as 

true, should enable a judge to plausibly infer that the violation did not occur or does not meet the 

requirements of the designation the parties propose to modify. For S&S, this means that the facts 

should challenge one of the Mathies elements. 

I find the contentions meet the bare minimum standards for relevance and plausibility to 

support removal of the S&S designation. The Secretary provides multiple Respondent 

contentions that are precedentially irrelevant to an S&S analysis. The hazard contemplated by 

the cited provision is the ignition of methane. The following contentions do nothing to challenge 

the likelihood of the hazard occurring, or any of the other Mathies elements. 

An S&S analysis assumes the continuation of normal mining operations without 

abatement of the violative condition. See Consol Pa. Coal Co., 43 FMSHRC 145, 148 (Apr. 

2021) (citing U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of 

‘significant and substantial’ must be based on the facts existing at the time of issuance and 

assuming continued normal mining operations, absent any assumption of abatement of inference 

that the violative condition will cease.”). 

Respondent’s contentions that no methane was found during pre- and on-shift 

inspections, that there is no history of methane inundations, and that no methane was found in 

the test made to abate the violation, are therefore irrelevant. Respondent was conducting roof 

bolting operations, and methane accumulations have been found to occur without warning—thus 

requiring compliance with provisions that prevent possible ignition sources, like permissibility 

requirements. See Knox Creek Coal Corp., 36 FMSHRC 1128, 1131 (May 2014) (“[G]iven the 

gassy nature of the mine, sudden methane buildups in the explosive range could reasonably be 

expected to occur.”). As I assume a methane build up at a gassy mine is reasonably likely to 

occur suddenly during continued operation, any reference to a lack of methane, past or present, is 

irrelevant to my evaluation. 

Commission judges may not consider redundant safety measures in an S&S evaluation. 

See Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1028–29 (D.C. Cir. 2013) 

(“‘[C]onsideration of redundant safety measures,’—that is, ‘preventative measures that would 

have rendered both injuries from an emergency and the occurrence of an emergency in the first 

place less likely’—‘is inconsistent with the language of [Section] 814(d)(1).’”). Multi-gas 

detectors, both personnel- and equipment-based, are redundant safety measures, on top of the 

requirement to conduct regular tests, aimed at preventing the hazard. References to such are 

therefore irrelevant to challenge S&S. 

45 FMSHRC Page 681
The Secretary, nonetheless, appropriately challenged the likelihood of the hazard by 

citing the available ventilation and time of violation. While lacking specificity and being 

minimally persuasive, Respondent contended that the quantity of ventilating air may have been 

demonstrated as sufficient to prevent ignition. I also recognize, to a miniscule extent, the 

minimal time Respondent was allegedly in violation.1

While I am skeptical of the decision to delete the S&S designation, the explanation in the 

motion is not facially implausible. It is possible that at hearing, if supported by substantial 

evidence, the violation might not be proved to be S&S. Applying the American Coal factors to 

the settlement as a whole, I have also considered that all of the other violations have been 

accepted as issued, and that the reduction in the overall penalty is minimal. 

I separately emphasize that the Secretary again inappropriately asserted her authority to 

remove S&S designations, citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879–80 (June 

1996), and American Aggregates of Michigan, Inc., 42 FMSHRC 570, 576–79 (Aug. 2020). S. 

Mot. at 5. I have repeatedly explained, as have other Commission judges, that these cases are 

irrelevant to my evaluation of the proposed removal of S&S designations in settlement. See, e.g., 

Order Accepting Appearance & Denying Mot. to Approve Settlement, Docket No. WEVA 2023- 

0071, at 7 (May 3, 2023). 

I made clear to the Secretary that this constitutes misstating the law, and I cautioned both 

agency attorneys and CLRs not to continue incorrectly citing this authority in these 

circumstances on threat of being barred from practice before me. Id. As I did not threaten such 

a sanction on review of the first motion, I do not impose it on the CLR here. But he is now on 

notice. 

Having considered the representations and documentation submitted, I find that the 

modifications are minimally reasonable, and concede, with noted concern, that the proposed 

settlement is appropriate under the criteria set forth in Section 110(i) of the Act. The motion to 

approve settlement is GRANTED. 

It is ORDERED that for Citation No. 9557339, the gravity be MODIFIED from 

“Reasonably Likely” to “Unlikely,” and the “S&S” designation be removed, and the negligence 

be MODIFIED from “Moderate” to “Low.” 

1

 I do not accept the contention that the inspector’s failure to cite for five minutes demonstrates 

his belief that the hazard was not likely, nor is that an appropriate consideration. I simply 

acknowledge that the combination of the purported quantity of ventilating air and the short 

duration of exposure might demonstrate at hearing that the hazard was unlikely to occur. 

45 FMSHRC Page 682
It is also ORDERED that the Respondent pay the Secretary of Labor the sum of 

$2,695.00 within 30 days of the date of this decision.2

Michael G. Young 

Administrative Law Judge 

Distribution (by email): 

Douglas W. Johnson, CLR, U.S. Department of Labor, MSHA, 1293 Airport Road, Beaver, WV 

25813, johnson.douglas@dol.gov

Jonathan R. Ellis, STEPTOE & JOHNSON PLLC, Chase Tower, Seventeenth Floor, P.O. Box 

1588, Charleston, WV 25326, jonathan.ellis@steptoe-johnson.com

2

 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers. 

45 FMSHRC Page 683
APPENDIX F 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Secretary of Labor, Mine Safety 

and Health Administration (MSHA), 

Petitioner 

v. 

Pocahontas Coal Company LLC, 

Respondent 

Docket No. WEVA 2023-0092 

Secretary’s Petition for Discretionary Review 

The Secretary seeks review of part of the judge’s May 12, 2023 order in this case. (A copy 

is attached as Exhibit A.) The order sanctions the Secretary for articulating the 

Secretary’s legal position about her authority to remove S&S designations—an issue that 

is on appeal—by putting the Secretary’s CLR “on notice” and threatening to bar the 

CLR from practicing if the CLR articulates that argument again. The Secretary seeks 

review of the part of the order putting the CLR on notice and threatening future 

sanctions, because a necessary legal conclusion is erroneous, and because that part of the 

order is contrary to law and involves substantial questions of law, policy, and discretion. 

See 30 U.S.C. 823(d)(2)(A)(ii)(II), (III), (IV). 

The issue presented for review is: did the judge abuse his discretion by sanctioning the 

Secretary for articulating the Secretary’s legal position, and by threatening to sanction the 

Secretary for articulating that legal position in the future? 

45 FMSHRC Page 684
Background 

1. The Secretary’s position on removing S&S designations 

In fall 2021, the Judge Young denied a motion to approve settlement in a case involving 

three violations. Ord. Denying Mot. to Approve Settlement, Knight Hawk Coal, LLC, No. 

LAKE 2021-0160 (FMSHRC Sept. 30, 2021) (ALJ Young). The operator accepted one 

violation as issued and decided to pay the proposed penalty; Secretary decided to reduce 

the gravity from reasonably likely to unlikely, and to remove the S&S designation, on two 

violations. The Secretary filed a motion to approve settlement, and then in response to 

the judge’s request for more facts, two amended motions. The motions provided facts in 

support of the gravity reduction and articulated the Secretary’s longstanding position that

she has unreviewable discretion to remove an S&S designation. The motion cited 

Mechanicsville Concrete, Inc., 18 FMSHRC 877 (June 1996), and American Agregates of 

Michigan, Inc., 42 FMSHRC 570 (Aug. 2020) to support this position. The judge denied 

the motion because, in his view, the Secretary had not provided enough facts to justify 

removing the S&S designation on one violation. Knight Hawk Ord. 3-5. The Secretary 

then filed a motion to certify for interlocutory review the question of whether the 

Secretary has unreviewable discretion to remove an S&S designation; the judge certified 

the question, and on April 7, 2022, the Commission directed review. 

Later in 2022, the judge denied two other settlements and certified the same question

for interlocutory review. Ord. Denying Mot. To Approve Settlement, Certifying Case for 

Interlocutory Review, and Staying Proceedings, Bluestone Oil Corp., Nos. WEVA 2022- 

0176, WEVA 2022-0350 (FMSHRC Oct. 31, 2022) (ALJ Young); Ord. Denying Mot. 

45 FMSHRC Page 685
To Approve Settlement, Certifying Case for Interlocutory Review, and Staying 

Proceedings, Greenbrier Minerals, LLC, Nos. WEVA 2022-0403 (FMSHRC Nov. 22, 

2022) (ALJ Young). The Commission directed review in both cases. And in March 2023, 

the judge stayed another case pending the same issue, but did not certify for interlocutory 

review; he reasoned that “[c]ertification will not materially advance the proceeding’s final 

disposition—the question has already been pending before the Commission for 11 

months, and it seems unlikely that a grant of interlocutory review here will accelerate a

decision on the question and may delay one.” Ord. Denying Certification for 

Interlocutory Rev. and Staying Proceedings, Peabody Gateway N. Mining, LLC, No. 

LAKE 2023-0043 (FMSHRC Mar. 8, 2023) (ALJ Young). 

While the appeal has been pending, the judge has rejected the Secretary’s position but 

approved settlements in many cases. See, e.g., Appalachian Res. W. Va., Nos. WEVA 

2022-0464, WEVA 2022-0590 (FMSHRC Jan. 10, 2023) (ALJ Young); Casella Constr. 

Inc., No. YORK 2022-0068 (FMSHRC Dec. 5, 2022) (ALJ Young); Raw Coal Mining 

Co., Inc., No. WEVA 2022-0297 (FMSHRC Oct. 7, 2022) (ALJ Young). Sometimes the 

judge has approved settlements without remarking on the Secretary’s position at all. See, 

e.g., Phillips & Jordan, Inc., Nos. SE 2022-0092 et al. (FMSHRC Jan. 3, 2023) (ALJ 

Young); Prospect Mining & Dev. Co., LLC, Nos. SE 2022-0034, SE 2022-0035 

(FMSHRC Oct. 20, 2022) (ALJ Young). 

On appeal, the Secretary has argued that she has unreviewable discretion to remove 

S&S designations, supporting that argument in part with the Commission’s decisions in 

Mechanicsville and American Agregates. See Brief for the Sec’y of Lab. at 3-5, Bluestone Oil 

45 FMSHRC Page 686
Corp., Nos. WEVA 2022-0176, WEVA 2022-0350 (Jan. 6, 2023); Brief for the Sec’y of 

Lab. at 3-5, Greenbrier Minerals, LLC, No. WEVA 2022-0403 (Jan. 5, 2023); Brief for the 

Sec’y of Lab. at 4-5, 11-12, Knight Hawk Coal, LLC, No. LAKE 2021-0160 (May 9, 2022). 

In Mechanicsville, the Commission said that there is “no material difference between the 

Secretary’s [unreviewable] discretion on the one hand to vacate a citation . . . and his 

discretion on the other hand . . . not to designate a citation as S&S.” 18 FMSHRC at 

879. And in American Agregates, the Commission held that the judge abused his 

discretion by rejecting a settlement in which the Secretary removed an S&S designation 

because the judge did not believe that removal was justified; the Commission said that 

“[w]hether a violation is S&S is a matter in the first instance of prosecutorial 

discretion,” so that “if MSHA does not charge an S&S violation, the Commission cannot 

make an S&S finding. Commission Judges do not have the discretion to make such 

elevated finding unless it is asserted in the first instance by MSHA.” 42 FMSHRC at 

576 (citation to Mechanicsville omitted). Since the appeal has been pending, when the 

Secretary has filed motions to approve settlement in cases in which the Secretary has 

decided to remove an S&S designation, the Secretary has continued her longstanding 

practice of articulating that she has discretion to do so, citing Mechanicsville and American 

Agregates. 

The Commission has not decided the S&S-removal cases. Judges have taken different 

approaches to settlements in which the Secretary has removed an S&S designation. 

Sometimes judges do not comment on the Secretary’s position. See, e.g., Knight Hawk 

Coal, LLC, No. LAKE 2023-0095 (FMSHRC Apr. 19, 2023) (ALJ Paez); W.A. Murphy 

45 FMSHRC Page 687
Inc., No. WEST 2023-0005 (FMSHRC Apr. 19, 2023) (ALJ Manning); Quikrete Cos., 

Inc., No. CENT 2023-0003 (FMSHRC Apr. 18, 2023) (ALJ Bulluck); Twin State 

Mining, Inc., No. WEVA 2022-0391 (FMSHRC Jan. 24, 2023) (ALJ Sullivan); 

Continental Cement Co., No. CENT 2022-0236 (FMSHRC Jan. 10, 2023) (ALJ 

Simonton); Consol Penn. Coal Co. LLC, No. PENN 2022-0061 (FMSHRC Jan. 10, 2023) 

(ALJ Lewis). Sometimes judges reject the position but consider the merits of the 

settlement. See, e.g., Hibbing Taconite Co., No. LAKE 2022-0176 (FMSHRC Jan. 26, 

2023) (ALJ McCarthy); Appalachian Res. W. Va., LLC, No. WEVA 2022-0554 

(FMSHRC Jan. 24, 2023) (ALJ Moran); Grimes Rock, Inc., No. WEST 2022-0336 

(FMSHRC Dec. 30, 2022) (ALJ Miller). 

2. Recent ALJ orders on S&S removals 

On April 25, 2023, Judge Moran issued an “Order Approving Settlement with Significant 

Reservations.” Consol Pennsylvania Coal Co., LLC, No. PENN 2022-0129 (FMSHRC 

Apr. 25, 2023) (ALJ Moran) (Ex. B). In it, Judge Moran said that citing Mechanicsville1 

for the S&S-removal position was a violation of an attorney’s “obligation not to misstate 

case law” and told the Secretary to “cease invoking that decision for propositions not 

supported by it.” Id. at 6. The judge also asserted that Federal Rule of Civil Procedure 11, 

which requires attorneys to ensure that the “legal contentions [in a pleading] are 

warranted by existing law or by a nonfrivolous argument for extending, modifying, or 

1 That motion to approve settlement did not cite American Agregates, which may explain 

why the judge did not discuss it. 

45 FMSHRC Page 688
reversing existing law or for establishing new law,” is implicated by the Secretary’s 

position. Fed. R. Civ. P. 11(b)(2); Ex. B at 6. 

About a week later, without reaching the merits of the settlement, Judge Young issued 

an order denying a settlement that removed two S&S designations. Ord. Accepting 

Appearance & Ord. Den. Mot. to Approve Settlement, Extra Enery, Inc., No. WEVA 

2023-0071 (FMSHRC May 4, 2023) (ALJ Young) (Ex. C). In it, the judge disapproved 

of the Secretary’s position on S&S removals, saying that it is inappropriate to cite 

Mechanicsville and American Agregates because “[t]hese cases are known by now to be 

invalid as authority for the principles they claim to represent.” Id. at 7. The judge quoted 

Judge Moran’s order, noted that Rule 11 sanctions may be imposed for “misstating” the 

law, and threatened to impose sanctions: 

There are minimum standards of practice in every tribunal, including this 

one. Erroneous mischaracterizations of precedent fail to meet those 

standards and will not be tolerated. A CLR who cites these cases, falsely, 

in a subsequent motion as they have been cited here may be barred from 

practice before me. There may be other consequences. 

Ibid. (footnote omitted). In a footnote, the judge also said that “Although these cases 

were included by a pleading drafted by a CLR, I would expect an attorney to know better, 

and a transgression against the law of this sort by an attorney would be even more 

egregious.” Ibid. n.5. The judge also served the Department of Labor’s CLR Coordinator, 

an attorney in the Division of Mine Safety and Health in the Office of the Solicitor, even 

though the attorney had not entered an appearance. The judge did not acknowledge that 

the S&S-removal issue is on appeal. 

45 FMSHRC Page 689
About a week after Extra Enery, the judge issued an order denying settlement and 

sanctioning the Secretary by striking from the record the Secretary’s position on S&S 

removals.2 Order Denying Mot. to Approve Settlement and Striking Material from Mot., 

Consol Mining Co. LLC, WEVA 2023-0141 (FMSHRC May 11, 2023) (ALJ Young) (Ex. 

D). Ignoring any review under Section 110(k), the judge discussed his order in Extra 

Enery, then said that this settlement motion contained the same “offending citations,” 

which are “obviously inappropriate” and “impertinent.” Id. at 2. The judge sanctioned 

the Secretary’s representative by striking from the motion to approve settlement the 

Secretary’s position on S&S removals and threatened to impose more severe sanctions in 

future cases: “those who persist in the discredited and misleading use of precedent 

should reasonably anticipate that their conduct will be deemed knowing or intentional and

will be addressed with progressive severity until the practice is discontinued.” Ibid. 

Finally, the judge denied the settlement “without reaching the merits.” Ibid. 

3. This case 

The day after his order in Consol, the judge issued the order in this case. See Ex. A. The 

case involves 16 violations. The operator accepted 15 as issued and decided to pay the 

proposed penalties; the Secretary decided to modify one violation by reducing the gravity

and negligence and removing the S&S designation. (That was Citation No. 9557339, 

which alleged a violation of 30 C.F.R. 75.362(d)(1)(iii) for roof bolters that failed to take 

methane checks every 20 minutes.) 

2 The Secretary filed a petition for discretionary review of this order concurrently with 

this petition for discretionary review. 

45 FMSHRC Page 690
Consistent with the Secretary’s position on appeal, the motion to approve settlement 

provided facts supporting the reduction in gravity and negligence and articulated the 

Secretary’s position that she may remove S&S designations without Commission 

approval, citing American Agregates and Mechanicsville. Although the judge approved the 

settlement, the judge “separately emphasize[d] that the Secretary again inappropriately 

asserted her authority to remove S&S designations,” cited his order in Extra Enery, and 

“cautioned both agency attorneys and CLRs not to continue incorrectly citing this 

authority in these circumstances on threat of being barred from practice before me.” Ex. 

A at 5. The judge said that, “As I did not threaten such a sanction on review of the first 

motion, I do not impose it on the CLR here. But he is now on notice.” Ibid. 

The judge also served the order on the Department of Labor’s CLR Coordinator, an 

attorney in the Division of Mine Safety and Health in the Office of the Solicitor, even 

though the attorney had not entered an appearance. The judge did not acknowledge that 

the S&S-removal issue is on appeal. 

Argument 

1. There is no legal basis for sanctioning, or threatening future sanctions against,

the Secretary. 

The judge’s order is legally wrong, see 30 U.S.C. 823(d)(2)(A)(ii)(II)-(III), because 

articulating the Secretary’s position on S&S removals is not sanctionable conduct. 

Commission practitioners “shall conform to the standards of ethical conduct required 

of practitioners in the courts of the United States.” 29 C.F.R. 2700.80(a). Those 

standards include the obligation to ensure that the “legal contentions [in a pleading] are 

45 FMSHRC Page 691
warranted by existing law or by a nonfrivolous argument for extending, modifying, or

reversing existing law or for establishing new law ” Fed. R. Civ. P. 11(b)(2). 

It is not unethical or unprofessional to cite Mechanicsville and American Agregates for 

the proposition that the Secretary has discretion to remove an S&S designation. As the 

Secretary has argued in the cases pending before the Commission, that is what those cases 

mean. But even if those cases did not directly support the Secretary’s argument, they 

certainly support a nonfrivolous argument for extending or modifying existing law. The 

pending appeal shows as much. See supra pp. 2-5. And the Secretary did not have to 

explain whether her S&S-removal position is warranted by Mechanicsville and American 

Agregates or by extending them: “The text of the Rule ... does not require that counsel 

differentiate between a position which is supported by existing law and one that would 

extend it. The Rule on its face requires that the [position] be either one or the other.” 

Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1539 (9th Cir. 1986). 

Commission review is essential because this is not an ordinary legal error. The judge

not only has imposed sanctions; he has promised that more sanctions will come. That 

threat applies to all the Secretary’s representatives, so the judge has effectively barred the 

Secretary from making a non-frivolous legal argument; that would warrant review on its 

own. But the ’s order is especially pernicious because it applies to the Secretary’s position 

about the allocation of authority between the Secretary and the Commission. It is contrary 

to the Mine Act’s split-enforcement scheme to prevent the Secretary from articulating 

her view about those issues. See Sec’y of Lab. v. Knight Hawk Coal, LLC, 991 F.3d 1297 

(D.C. Cir. 2021); Mach Mining, LLC v. Sec’y of Lab., 728 F.3d 643 (7th Cir. 2013); Speed 

45 FMSHRC Page 692
Mining, Inc. v. FMSHRC, 528 F.3d 310 (4th Cir. 2008); Sec’y of Lab. v. Twentymile Coal 

Co., 456 F.3d 151 (D.C. Cir. 2006); Sec’y ex rel. Wamsley v. Mut. Mining, Inc., 80 F.3d 110 

(4th Cir. 1996); Sec’y ex rel. Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432 (D.C. Cir. 

1989). And by barring the Secretary from raising those issues at the ALJ level, the judge 

has effectively barred the Secretary from preserving them for appeal. See 30 

U.S.C. 816(a)(1), (b); 823(d)(2)(iii). 

2. This order raises significant questions about law, policy, and discretion.

This order raises significant questions of law and policy, 30 U.S.C. 823(d)(2)(A)(ii)(IV), 

because of its scope. Although this order imposes sanctions in just one case, the judge 

said—in this order and in others—that he will impose sanctions on any representative 

who articulates the Secretary’s position. Ex. A at 5; Ex.C at 7 & n.5; Ex. D at 2. Simply 

put, the judge has threatened to sanction everyone who is authorized to represent the 

Secretary. A baseless order with such sweeping effects requires review. Cf. United States 

v. Williams, No. 22-10174, 2023 WL 3516095, at *5 (9th Cir. May 18, 2023) (holding that 

a district judge’s order disqualifying an entire United States Attorney’s office is 

immediately appealable as a collateral order) (collecting cases). 

The order also raises significant questions about the judge’s exercise of discretion. 30

U.S.C. 823(d)(2)(A)(ii)(IV). Judges certainly can reject legal arguments they disagree 

with, but disagreeing with an argument does not mean that the argument is sanctionable.

And there is no basis for the judge’s conclusion that the Secretary’s S&S-removal 

position is a misstatement of the law. See supra pp. 2-5. 

45 FMSHRC Page 693
The judge abused his discretion by sanctioning the Secretary for articulating a 

position when the issue is unresolved and on appeal, and when the judge himself 

previously found that position not to warrant sanctions. See supra p. 3. The judge knows 

that the S&S-removal issue is on appeal, because in each of the three cases presenting that 

issue, this judge certified the question for interlocutory review. See supra pp. 2-3. It is an 

abuse of discretion for the judge to impose sanctions on the grounds that the position is a 

misstatement of law, since he knows that issue is on appeal. See Peabody Gateway North 

Ord. at 2 (acknowledging that the Commission has not decided the S&S issue); Asai v. 

Castillo, 593 F.2d 1222, 1225 (D.C. Cir. 1978) (declining to impose sanctions when the 

appellate court had not addressed the relevant issue). It is arbitrary and an abuse of 

discretion for the judge abruptly to begin imposing sanctions for a position that the judge

had not sanctioned before. See, e.g., Sec’y of Lab. v. Westfall Agregate & Materials, Inc., 

No. 22-1088, 2023 WL 3830210, at *5 (D.C. Cir. June 6, 2023) (the Commission must 

engage in reasoned decisionmaking, “especially” when it “has taken a sharp turn from 

prior holdings”) (quoting Leeco, Inc. v. Hays, 965 F.2d 1081, 1085 (D.C. Cir. 1992)). 

Conclusion 

The Commission should direct review. 

Respectfully submitted, 

SEEMA NANDA 

Solicitor of Labor 

APRIL E. NELSON 

Associate Solicitor 

45 FMSHRC Page 694
s/ EMILY TOLER SCOTT 

Counsel for Appellate Litigation 

U.S. Department of Labor 

Office of the Solicitor 

Division of Mine Safety & Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

(202) 693-9333

(202) 693-9392 (fax)

scott.emily.t@dol.gov 

Attorneys for the Secretary of Labor 

45 FMSHRC Page 695
Certificate of Service 

I certify that on June 9, 2023, a copy of this petition for discretionary review was served 

by email on: 

Jonathan R. Ellis 

STEPTOE & JOHNSON PLLC

Chase Tower, Seventeenth Floor 

P.O. Box 1588 

Charleston, WV 25326 

jonathan.ellis@steptoe-johnson.com

s/ Emily Toler Scott 

45 FMSHRC Page 696
Exhibit A 

45 FMSHRC Page 697
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202 434-9987 / FAX: 202 434-9949 

May 12, 2023 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

POCAHONTAS COAL COMPANY LLC, 

Respondent 

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2023-0092 

A.C. No. 46-08878-565698 

Mine: Affinity Mine 

ORDER ACCEPTING APPEARANCE 

DECISION APPROVING SETTLEMENT WITH SIGNIFICANT RESERVATIONS 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Young 

This case is before me upon petition for assessment of civil penalty under Section 105(d) 

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

Approve Settlement and has set forth the factual basis for the proposed modifications. The 

Respondent has agreed to the proposed changes. The originally assessed amount for the citation 

at issue was $3,171.00, and the proposed settlement amount is $2,695.00. 

It is ORDERED that the Conference and Litigation Representative (CLR) be accepted to 

represent the Secretary in accordance with the notice of limited appearance he has filed with the 

penalty petition. Cyprus Emerald Resources Corporation, 16 FMSHRC 2359 (Nov. 1994). 

The proposed settlement includes: 

Citation/Order 

No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modifications 

9550934 $169.00 $169.00 None. 

9550935 $169.00 $169.00 None. 

9550936 $169.00 $169.00 None. 

45 FMSHRC Page 698
Citation/Order 

No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modifications 

9550403 $133.00 $133.00 None. 

9550937 $169.00 $169.00 None. 

9550938 $169.00 $169.00 None. 

9550939 $183.00 $183.00 None. 

9550940 $169.00 $169.00 None. 

9550941 $198.00 $198.00 None. 

9550942 $188.00 $188.00 None. 

9550943 $169.00 $169.00 None. 

9550404 $169.00 $169.00 None. 

9557339 $610.00 $134.00

Modify gravity from “Reasonably Likely” 

to “Unlikely,” and from “S&S” to “NonS&S,” and negligence from “Moderate” to 

“Low.” 

9551135 $169.00 $169.00 None. 

9551136 $169.00 $169.00 None. 

9551137 $169.00 $169.00 None. 

Total $3,171.00 $2,695.00

The parties have set forth the justification for the modifications in the motion filed by the 

Secretary. As required by the Mine Act, I have reviewed the motion and penalty criteria and 

evaluated the proposed settlement pursuant to the requirements set forth in Sections 110(i) and 

110(k). The parties agree to the size of this operator, good faith abatement, and the ability to 

pay. The history of violation has been considered. The negligence and gravity of the violation 

are addressed in the motion, in the citations, and in the file in general. 

Citation 9557339 concerns a failure to conduct a required methane test. The cited 

provision states: 

A qualified person shall make tests for methane—(iii) At 20-minute intervals, or 

more often if required in the approved ventilation plan at specific locations, 

during the operation of equipment in the working place. 

30 C.F.R. § 75.362(d)(1)(iii) (2023). The citation reads, in part: 

The roof bolt operators installing permanent roof support on the No. 3 active 

section (005-0 / 002-0 MMU’s) in the 5X6 cross-cut exceeded the 20 minute 

required methane test. The roof bolt operators were being observed installing 

bolts, when 25 minutes elapsed and no attempted [sic] was made to take the 

required methane test. Asked the operators what time was the last methane test 

was [sic] taken, both operators could not say when the methane test was made. 

45 FMSHRC Page 699
The roof bolting machine was shut off and an examination was made with an 

extendable probe and large display CH4 detector. This mine is on a 10 day 

methane spot. 

Citation No. 9557339 (Sept. 8, 2022). 

The Secretary submitted a settlement motion on April 19, 2023, but I expressed my 

reservations caused by the inadequate support for the removal of the S&S designation. See 

Email from Christopher A. Jannace, Attorney Advisor to the Honorable Judge Michael G. 

Young, to Douglas W. Johnson, CLR, MSHA (Apr. 20, 2023; 10:25 a.m. ET). In her amended 

motion, the Secretary provided more thorough Respondent contentions challenging the 

likelihood of the hazard occurring: 

The Respondent would have argued at hearing that no methane was found on the 

section during numerous pre and on-shift examinations prior to the issuance of 

this citation and that this is normal for this mine. Though this mine does liberate 

substantial amounts of methane and is a “spot” inspection mine, most methane 

enters the mine’s ventilating area from worked out areas where methane enters the 

mine through cracks in the mine floor from a coal seam below that develop after a 

panel or area has been mined. 

The mine had no prior history of methane inundations from active 

workings of the mine nor any history of methane ignitions. The Respondent 

would have argued that a hazardous accumulation of methane in the face area 

where this bolting machine was operating was highly unlikely and virtually 

impossible with even a modest quantity of ventilating air. The quantity of 

ventilating air in this face area where the roof bolter was operating was in 

compliance with the mine’s approved ventilation plan which experience has 

shown to be more than capable of diluting hazardous gases including methane and 

dust, rendering them harmless and carrying them away. 

The inspector, a roof control specialist, observed the roof bolting crew 

perform work in this area for approximately twenty-five (25) minutes before 

issuing this citation. Had the inspector reasonably believed that the cited 

condition presented a hazard, such that the condition warranted an S&S issuance, 

then he likely would not have permitted the miners to be unnecessarily exposed to 

the alleged S&S hazard for an additional five (5) minutes. Additionally, the area 

was nearly bolted and only a few minutes work remained to complete the bolting 

cycle. Thus, the miners were near the face area at the time of issuance and no 

methane was detected at any time. 

Both of these roof bolter operators carried properly calibrated multi-gas 

detectors which would have provided an alarm of elevated methane should it be 

encountered. Upon issuance of the citation, they backed the roof bolting machine 

out of the cut and ran the remote “probe”, containing a methane detector, up into 

the face area to take the required 20 minute gas check as part of the abatement 

45 FMSHRC Page 700
effort. The probe went just as far as the two miners had been standing moments 

before with their own multi-gas detectors. No methane was found by the remote 

probe. 

S. Mot. to Approve Settlement, at 3–5 (May 11, 2023). 

Parties must “provide facts in support of the modification for each violation,” 29 C.F.R. § 

2700.31(b) (2022) (emphasis added), so that Commission judges may “set forth reasons for 

approval,” id. § 2700.31(g), when reviewing settlements under the AmCoal factors, 30 U.S.C. § 

820(k) (2023). The provided facts should therefore be substantive and relevant and, taken as 

true, should enable a judge to plausibly infer that the violation did not occur or does not meet the 

requirements of the designation the parties propose to modify. For S&S, this means that the facts 

should challenge one of the Mathies elements. 

I find the contentions meet the bare minimum standards for relevance and plausibility to 

support removal of the S&S designation. The Secretary provides multiple Respondent 

contentions that are precedentially irrelevant to an S&S analysis. The hazard contemplated by 

the cited provision is the ignition of methane. The following contentions do nothing to challenge 

the likelihood of the hazard occurring, or any of the other Mathies elements. 

An S&S analysis assumes the continuation of normal mining operations without 

abatement of the violative condition. See Consol Pa. Coal Co., 43 FMSHRC 145, 148 (Apr. 

2021) (citing U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of 

‘significant and substantial’ must be based on the facts existing at the time of issuance and 

assuming continued normal mining operations, absent any assumption of abatement of inference 

that the violative condition will cease.”). 

Respondent’s contentions that no methane was found during pre- and on-shift 

inspections, that there is no history of methane inundations, and that no methane was found in 

the test made to abate the violation, are therefore irrelevant. Respondent was conducting roof 

bolting operations, and methane accumulations have been found to occur without warning—thus 

requiring compliance with provisions that prevent possible ignition sources, like permissibility 

requirements. See Knox Creek Coal Corp., 36 FMSHRC 1128, 1131 (May 2014) (“[G]iven the 

gassy nature of the mine, sudden methane buildups in the explosive range could reasonably be 

expected to occur.”). As I assume a methane build up at a gassy mine is reasonably likely to 

occur suddenly during continued operation, any reference to a lack of methane, past or present, is 

irrelevant to my evaluation. 

Commission judges may not consider redundant safety measures in an S&S evaluation. 

See Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1028–29 (D.C. Cir. 2013) 

(“‘[C]onsideration of redundant safety measures,’—that is, ‘preventative measures that would 

have rendered both injuries from an emergency and the occurrence of an emergency in the first 

place less likely’—‘is inconsistent with the language of [Section] 814(d)(1).’”). Multi-gas 

detectors, both personnel- and equipment-based, are redundant safety measures, on top of the 

requirement to conduct regular tests, aimed at preventing the hazard. References to such are 

therefore irrelevant to challenge S&S. 

45 FMSHRC Page 701
The Secretary, nonetheless, appropriately challenged the likelihood of the hazard by 

citing the available ventilation and time of violation. While lacking specificity and being 

minimally persuasive, Respondent contended that the quantity of ventilating air may have been 

demonstrated as sufficient to prevent ignition. I also recognize, to a miniscule extent, the 

minimal time Respondent was allegedly in violation.1

While I am skeptical of the decision to delete the S&S designation, the explanation in the 

motion is not facially implausible. It is possible that at hearing, if supported by substantial 

evidence, the violation might not be proved to be S&S. Applying the American Coal factors to 

the settlement as a whole, I have also considered that all of the other violations have been 

accepted as issued, and that the reduction in the overall penalty is minimal. 

I separately emphasize that the Secretary again inappropriately asserted her authority to 

remove S&S designations, citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879–80 (June 

1996), and American Aggregates of Michigan, Inc., 42 FMSHRC 570, 576–79 (Aug. 2020). S. 

Mot. at 5. I have repeatedly explained, as have other Commission judges, that these cases are 

irrelevant to my evaluation of the proposed removal of S&S designations in settlement. See, e.g., 

Order Accepting Appearance & Denying Mot. to Approve Settlement, Docket No. WEVA 2023- 

0071, at 7 (May 3, 2023). 

I made clear to the Secretary that this constitutes misstating the law, and I cautioned both 

agency attorneys and CLRs not to continue incorrectly citing this authority in these 

circumstances on threat of being barred from practice before me. Id. As I did not threaten such 

a sanction on review of the first motion, I do not impose it on the CLR here. But he is now on 

notice. 

Having considered the representations and documentation submitted, I find that the 

modifications are minimally reasonable, and concede, with noted concern, that the proposed 

settlement is appropriate under the criteria set forth in Section 110(i) of the Act. The motion to 

approve settlement is GRANTED. 

It is ORDERED that for Citation No. 9557339, the gravity be MODIFIED from 

“Reasonably Likely” to “Unlikely,” and the “S&S” designation be removed, and the negligence 

be MODIFIED from “Moderate” to “Low.” 

1

 I do not accept the contention that the inspector’s failure to cite for five minutes demonstrates 

his belief that the hazard was not likely, nor is that an appropriate consideration. I simply 

acknowledge that the combination of the purported quantity of ventilating air and the short 

duration of exposure might demonstrate at hearing that the hazard was unlikely to occur. 

45 FMSHRC Page 702
It is also ORDERED that the Respondent pay the Secretary of Labor the sum of 

$2,695.00 within 30 days of the date of this decision.2

Michael G. Young 

Administrative Law Judge 

Distribution (by email): 

Douglas W. Johnson, CLR, U.S. Department of Labor, MSHA, 1293 Airport Road, Beaver, WV 

25813, johnson.douglas@dol.gov

Jonathan R. Ellis, STEPTOE & JOHNSON PLLC, Chase Tower, Seventeenth Floor, P.O. Box 

1588, Charleston, WV 25326, jonathan.ellis@steptoe-johnson.com

2

 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers. 

45 FMSHRC Page 703
Exhibit B 

45 FMSHRC Page 704
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges 

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

Washington, DC 20004 

Office: (202) 434-9933 / Fax: (202) 434-9949 

April 25, 2023 

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. PENN 2022-0129 

Petitioner, : A.C. No. 36-07230-561904 

: 

: 

v. : 

: 

: 

CONSOL PENNSYLVANIA COAL : Mine: Bailey Mine 

COMPANY, LLC, : 

Respondent : 

: 

DECISION APPROVING SETTLEMENT WITH SIGNIFICANT RESERVATIONS 

Before: Judge William Moran 

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

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

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

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

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

the following table: 

Citation/Order MSHA’s 

Proposed Penalty 

Settlement 

Amount 

Other modifications to 

citation/order 

9205312 $6,898 $1,393 

Citation modified to moderate 

negligence; 80% reduction in 

penalty 

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

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

TOTAL 

REVISED 

PENALTY 

Original total: 

$9,036.00 

Revised total:

$1,897.00 79% overall reduction in penalty 

45 FMSHRC Page 705
The Citations in issue 

Citation No. 9205312 

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

and emergency response plans.” The section addresses telephone service or equivalent twoway communication facilities, which are to be approved by the Secretary or his authorized 

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

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

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

requirements. 

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

The Mine Operator failed to comply with their Approved Emergency Response 

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

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

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

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

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

between the Primary or Alternate Escapeways and no communication or 

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

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

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

loading point until the condition can be corrected. 

The Following statements are from the Approved Mine Emergency Response Plan 

and have not been complied with: 

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

generally provide continuous coverage along escapeways and a coverage zone 

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

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

caches, working section power centers and manned belt transfers. 

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

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

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

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

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

Redundancy means that the system can maintain communication with the surface 

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

entry or component failure. 

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

45 FMSHRC Page 706
strategic areas. Strategic Areas are fixed work locations where miners are normally 

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

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

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

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

and Secondary escapeways. 

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

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

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

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

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

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

entered in a record book. 

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

will revert to manual tracking system that was previously used.

Petition for Civil Penalty at 11-13. 

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

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

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

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

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

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

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

Id. at 13. 

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

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

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

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

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

Analysis for Citation No. 9205312 

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

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

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

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

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

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

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

45 FMSHRC Page 707
the next day, the supply problems apparently having vanished rapidly. This is the sole basis 

presented in the motion for listing the negligence as moderate. 

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

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

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

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

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

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

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

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

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

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

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

Citation No. 9204928 

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

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

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

transportation of men and materials shall be provided.” 

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

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

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

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

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

exam. 

Petition for Civil Penalty at 15 (emphasis added). 

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

mine. Id. 

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

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

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

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

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

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

at 16. 

Analysis for Citation No. 9204928 

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

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

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

45 FMSHRC Page 708
the Commission’s AmCoal decisions: 38 FMSHRC 1972, (Aug. 2016) (“AmCoal I”), 

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

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

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

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

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

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

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

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

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

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

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

Motion at 3-4. 

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

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

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

discussed above. 

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

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

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

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

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

designate a citation as S&S.”1

 Motion at 4 (“RBK”). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2101 

45 FMSHRC Page 709
added nothing more to that holding. 

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

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

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

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

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

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

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

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

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

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

(emphasis added). 

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

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

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

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

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

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

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

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

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

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

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

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

good faith argument for the extension, modification, or reversal of existing law.” Dzwonkoski, 

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

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

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

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

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

it. 

REVISITING PRESENT COMMISSION LAW FOR SETTLEMENT MOTIONS AS 

APPLIED TO THIS MATTER. 

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

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

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

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

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

45 FMSHRC Page 710
the Commission’s decision in AmCoal II sets forth the present requirements deemed sufficient 

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

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

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

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

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

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

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

supporting a penalty amount agreed to in settlement.” Id. at 987. It noted, “[i]n particular, 

Commission Procedural Rule 31 requires that a motion to approve penalty settlement must 

include for each violation “the penalty proposed by the Secretary, the amount of the penalty 

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

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

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

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

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

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

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

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

lieu of the hearing process.” Id. 

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

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

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

991. Here, no facts have been presented. 

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

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

presented here, to wit: 

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

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

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

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

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

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

Motion at 3-4. 

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

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

45 FMSHRC Page 711
Citation No. 9205356 

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

Condition or Practice section of the citation states: 

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

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

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

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

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

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

the cited area. The walkways in this area was wet, muddy and very slippery 

without having to traverse this extraneous materials. The Operator immediately 

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

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

operator, 1 to a contractor). 

Petition for Civil Penalty at 18 (emphasis added). 

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

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

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

Analysis for Citation No. 9205356 

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

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

Summary: 

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

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

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

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

AmCoal I and AmCoal II. 

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

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

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

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

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

time within 30 days after the issuance of a Judge's decision, the Commission may, by the 

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

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

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

45 FMSHRC Page 712
The Court has considered the Secretary’s Motion and approves it solely on the basis of 

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

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

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

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

inquiry by the Court is not permitted. 

Accordingly, per the Commission’s decisions on the scope of a judge’s review authority 

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

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

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

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

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

within 30 days of this order.3

 Upon receipt of payment, this case is DISMISSED. 

William B. Moran 

Administrative Law Judge 

Distribution: 

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

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

Stelmack.kyle.d@dol.gov

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

Canonsburg, PA 15317 craigaaron@consolenergy.com

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

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

in such direction for review. 

3 Penalties may be paid electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. 

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

45 FMSHRC Page 713
Exhibit C 

45 FMSHRC Page 714
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 1400 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202 434-9987 / FAX 202 434-9949 

May 4, 2023 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

EXTRA ENERGY, INC., 

Respondent. 

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2023-0071 

A.C. No. 46-09395-565851 

Mine: Dry Branch Surface Mine 

ORDER ACCEPTING APPEARANCE 

ORDER DENYING MOTION TO APPROVE SETTLEMENT 

Before: Judge Young 

This case is before me upon petition for assessment of civil penalty under Section 105(d) 

of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a Joint Motion to 

Approve Settlement and has set forth the factual basis for the proposed modifications. The 

Respondent has agreed to the proposed changes. The originally assessed amount was $6,548.00, 

and the proposed settlement amount is $1,324.00. 

It is ORDERED that the Conference and Litigation Representative (CLR) be accepted to 

represent the Secretary in accordance with the notice of limited appearance he has filed with the 

penalty petition. Cyprus Emerald Resources Corporation, 16 FMSHRC 2359 (Nov. 1994). 

The proposed settlement includes the following modifications: 

Citation/Order 

No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modifications 

9565489 $3,274.00 $662.00

Modify gravity from “Reasonably Likely” 

to “Unlikely,” and from “S&S” to “NonS&S.” 

9565490 $3,274.00 $662.00

Modify gravity from “Reasonably Likely” 

to “Unlikely,” and from “S&S” to “NonS&S.” 

Total $6,548.00 $1,324.00 80% Reduction 

45 FMSHRC Page 715
The motion proposes to remove the S&S designation from each citation. These 

violations were for failure to maintain berms of adequate height on an elevated roadway. The 

provision reads, “Berms or guards shall be provided on the outer bank of elevated roadways.” 30 

C.F.R. § 77.1605(k) (2023). 

The citations alleged the presence of three berm sections measuring 24–44 inches, 30 

inches, and 42–55 inches, for varying distances (from 100 feet to .2 miles) abutting a 50-foot 

drop, where the largest equipment used on the road had a mid-axle height of 63 inches. See 

Citation No. 9565489 at 1 (Sept. 7, 2022); Citation No. 9565490 at 1 (Sept. 7, 2022). 

The motion provided substantively the same explanation for the modification of each. 

The Secretary accepted Respondent’s contentions that (1) “while not at the full required height” 

the berms were “substantially built,” “wide,” and “capable of restraining a vehicle,” and (2) the 

affected area [road] was wide with good visibility. S. Mot. to Approve Settlement, at 3 (Mar. 23, 

2023). These explanations are inadequate to support removal of an S&S designation. 

Parties must “provide facts in support of the modification for each violation,” 29 C.F.R. § 

2700.31(b) (2022) (emphasis added), so that Commission judges may “set forth reasons for 

approval,” id. § 2700.31(g), when reviewing settlements under the AmCoal factors, 30 U.S.C. § 

820(k) (2023). The provided facts should therefore be substantive and relevant and, taken as 

true, should enable a judge to plausibly infer that the violation did not occur or does not meet the 

requirements of the designation the parties propose to modify. For S&S, this means that the facts 

should challenge one of the Mathies elements. 

Before addressing the S&S issue, I note a regulatory anomaly that is susceptible to only 

one reasonable resolution. The regulations governing metal and nonmetal surface mines require 

that, where required, “[b]erms or guardrails shall be at least mid-axle height of the largest selfpropelled mobile equipment which usually travels the roadway.” 30 C.F.R. § 56.9300(b), 

57.9300(b).1

 In contrast, the cited provision of Part 77 requiring berms for elevated roadways at 

surface coal mines and the surface areas of underground coal mines merely defines berm as “a 

pile or mound of material capable of restraining a vehicle.” 30 C.F.R. § 77.2. 

Part 77 therefore does not include a mid-axle height standard. That language has been in 

place since the Coal Act. See Final Rule, 36 Fed. Reg. 9,364, 9,380 (May 22, 1971). The Part 

56 mid-axle language, however, was established later. See Safety Standards for Loading, 

Hauling, and Dumping and Machinery and Equipment at Metal and Nonmetal Mines, 53 Fed. 

Red. 32,496, 32,520–21 (Aug. 25, 1988). 

The parties appear to implicitly accept that Part 77 requires the minimum height of the 

cited berms in this case to be 63 inches, the mid-axle height of the largest vehicle regularly 

traveling the roadway. See Citations 9565489, 9565490, § 8 (Sept. 7, 2022) (citing inadequate 

berms and noting mid-axle height of largest equipment as 63 inches); Mot. at 3 (providing 

Respondent’s argument conceding that berms were not at the required height at some areas). But 

1

 Part 56 applies to surface metal and non-metal mines, while Part 57 governs the surface areas of 

underground metal and non-metal mines. The language in the two cited provisions is identical. 

45 FMSHRC Page 716
it is important for the Commission to recognize the mid-axle standard as binding upon the 

operators of surface and underground coal mines. 

The Commission has not yet done so directly. But it has affirmed a judge’s finding that 

mid-axle height was that which a reasonably prudent person would have recognized as required 

to prevent this provision’s contemplated hazard. See Black Beauty Coal Co., 34 FMSHRC 1733, 

1735, 1748 (Aug. 2012).2

The Commission had previously applied the reasonably prudent person standard to this 

provision. See U.S. Steel Corp., 5 FMSHRC 3, 7 (Jan. 1983) (requiring evidence as to what type

of berm a reasonably prudent person would install under the circumstances); The Hanna Mining 

Co., 3 FMSHRC 2045, 2045–46 (Sept. 1981) (finding substantial evidence supporting that a 

two-to-three-foot berm was inadequate to prevent overtravel).3

There is of course no substantive difference between roadways and trucks at coal mines 

and those at metal or nonmetal mines. In both contexts, berms have been deemed necessary to 

prevent overtravel and fall from an elevated roadway. 

It has been the Secretary’s litigation position that inadequate berm violations exist where 

they are not mid-axle height, and that they should be S&S where there exists the risk of a 

significant fall. See Buffalo Crushed Stone, Inc., 16 FMSHRC 2043, 2044, 2045 (Oct. 1994) 

(affirming a Part 56 violation where an inadequate berm abutted a 25-foot drop, and reversing 

the judge’s non-S&S finding). 

Having made a formal determination in notice and comment rulemaking, and an informal 

determination in litigation, that the mid-axle height standard is necessary to protect miner health 

and safety, the Secretary is bound to uphold it now and should formalize the standard by 

regulation. In the absence of such action, the Commission should make clear that this standard is 

a binding norm. 

The Secretary has gone to great lengths in the past to claim her litigation position is 

entitled to deference as an exercise of delegated rulemaking authority. See Sec’y of Labor v. 

Twentymile Coal Co., 411 F.3d 256, 261 (D.C. Cir. 2005) (citing Sec’y of Labor v. Excel Mining, 

LLC, 334 F.3d 1, 6 (D.C. Cir. 2003)) (“But because ‘in the statutory scheme of the Mine Act, the 

Secretary’s litigating position before [the Commission] is as much an exercise of delegated 

lawmaking powers as the Secretary’s promulgation of a . . . health and safety standard ....... ”); 

2 See also id. at 1748 n.19 (quoting U.S. Steel Corp., 5 FMSHRC 3, 5 (Jan. 1983)) (“[T]he 

adequacy of an operator’s . . . guards [is] evaluated in each case by reference to an objective 

standard or a reasonably prudent person familiar with the mining industry and in the context of 

the preventive purpose of the statute.”). 

3

 I note that both decisions were published before the 1988 addition of the mid-axle language to 

Part 56, and U.S. Steel acknowledged the need for reform if the Secretary intended to apply a 

minimum height standard. See 5 FMSHRC at 5 n.7 (“The Secretary is privileged under the Mine 

Act to write a more specific berm standard setting forth more detailed specifications for 

construction of safe berms and guards.”). 

45 FMSHRC Page 717
Adam Whitt, 35 FMSHRC 3487, 3490 (Nov. 2013); BHP Copper, Inc., 21 FMSHRC 758, 764 

n.11 (citing Martin v. OSHRC, 499 U.S. 144, 156–57 (1991)). 

Such authority is based on “technical expertise and political authority to carry out 

statutory mandates.” Morton Int’l, Inc., Morton Salt, 18 FMSHRC 533, 452 (Apr. 1996) 

(quoting Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995)); see also Sec’y of Labor 

on behalf of Wamsley v. Mut. Mining, Inc., 80 F.3d 110, 114 (4th Cir. 1996) (quoting Martin, 

499 U.S. at 152) (emphasizing that the Secretary’s promulgation and enforcement of standards 

brings her into “constant contact with the daily operations of the mines,” endowing her with the 

“‘historical familiarity and policymaking expertise’ . . . that are the basis for judicial deference to 

agencies”). 

The Secretary cannot legitimately assert that citation for a berm standard in a metal or 

nonmetal mine is a violation, and S&S due to likely injury from a fall from the elevated 

roadway, and simultaneously claim that the same situation—likely hazard and injury—are not 

S&S, or not even a violation. If the Secretary has decided that mid-axle height is the standard for 

berm size to prevent overtravel on an elevated road in a metal or nonmetal mine, and the 

protective purpose of the provision is to prevent injury from such a hazard, then that must be the 

standard for the same situation, even if in a different type of mine. 

The Secretary cannot apply a different standard for coal mines and metal/nonmetal mines 

because there is no principled distinction. The laws of gravity and physics certainly will not 

recognize one, and a truck overtraveling an inadequate berm between a road and a long drop will 

produce the same tragic consequences in either case. 

I also would point out that if the Secretary’s litigation position is in effect an exercise of 

her delegated rulemaking authority, then a failure to adopt the mid-axle standard in litigation 

would be contrary to the Act’s requirement that “[n]o mandatory health or safety standard 

promulgated under this title shall reduce the protection afforded miners by an existing mandatory 

health or safety standard.” 30 U.S.C. § 811(a)(9). 

That is what makes the abdication of responsibility in this settlement so disturbing. 

While the inspector in this case appropriately detailed the failure to meet the mid-axle height 

requirement, the proposed settlement disregards what must be effectively considered to be the 

applicable health and safety standard and the attendant consequences of that failure. 

The motion betrays an abject disregard of the Commission’s S&S standards and the 

safety of miners imperiled by the hazard described in this case. There is no consideration of the 

degree or extent of the deficiency here. I thus reject Respondent’s second contention and the 

Secretary’s acceptance of it as one whose proof at hearing would “lessen[] the likelihood of an 

accident or injury,” S. Mot. at 3, as contrary to the law and the safety purposes of the Act. 

First, the limited facts that have been provided establish beyond debate that the hazard 

existed as described in the citation and would do nothing to make the case that an injury would 

not be reasonably likely to occur. 

45 FMSHRC Page 718
The motion’s contention and the posited facts are insufficient to challenge the likelihood 

of the contemplated hazard’s occurrence because the provision requiring berms is not qualified 

by roadway or environmental conditions. It does not say that berms are required only if the road 

is narrower than a designated, minimum width or when minimum visibility conditions are not 

met. 

Nonetheless, the motion asserts that the berms are “capable of restraining a vehicle” 

based on undefined “substantial construction” and “width,” two things that are not contemplated 

by the only standard the Secretary has applied to berms—height. 

Nor does the motion suggest that this is not a roadway “usually traveled” by the largest 

vehicles at the mine. We cannot assume miner precaution, abatement, or other intervention. In 

sum, there is nothing to support the notion that this violation will not present a hazard of 

overtravel to the miners using this road. 

Once the hazard has been found to be reasonably likely to materialize, it is an assumed 

fact binding on the remainder of the analysis, and the likelihood of injury is evaluated based on 

the occurrence of that hazard. Newtown Energy, Inc., 38 FMSHRC 2033, 2038 (Aug. 2013). If I 

therefore reach the conclusion that the hazard—a vehicle falling from an elevated roadway due 

to inadequate berm height—is reasonably likely, then a contention regarding the width of the 

road or visibility would have no effect on the likelihood of injury. 

The provision cited here does not expressly require berms to be “mid-axle height,” but 

both the Secretary and Respondent appear to have accepted it as a standard in their own 

agreement: “while not at the full required height . . . .” And as noted above, I must apply that 

standard because any other approach would be inconsistent with the Act and the Secretary’s 

now-binding interpretations of her own regulations. 

Therefore, the applicable mandatory safety standard here, accepted by the parties and 

enshrined in the law, is the mid-axle height for the largest vehicle that usually travels this 

roadway. The motion does not challenge the inspector’s determination that this minimum height 

is 63 inches. 

There are thus only two possible means of avoiding an S&S determination in this case. 

Either the violation would not significantly and substantially contribute to a hazard of 

overtraveling the inadequate berms, or the consequences of the overtravel would not be 

reasonably likely to result in serious injury or death. 

The second contention is readily dispensed with. Any serious argument would have 

required some qualification or dispute of the inspector’s observation that the drop-off beyond the 

inadequate berms was 50 feet. The motion does not challenge the inspector’s observation. We 

therefore must accept as fact that a truck traveling over or through the berms would plummet or 

roll uncontrolled for that distance. Miners who know the consequences of serious overtravel 

have been seriously injured or killed trying to escape a truck that has encountered this hazard. 

See Solar Sources Mining, LLC, 43 FMSHRC 367, 382 n.1 (Aug. 2021) (Traynor, Chair, 

dissenting) (“Here, due to the deficiency in the berm, the dump truck’s back wheel over-traveled 

45 FMSHRC Page 719
the ledge of the dump site, fell and flipped upside down into the slurry pit approximately 48 feet 

below. The driver escaped almost certain death by leaping from the truck’s cab before it 

descended over the ledge. The jump and fall resulted in a broken foot that required multiple 

surgeries to reconstruct using donated bone, steel and screws.”). 

That leaves only the possibility that there was no reasonable likelihood that the trucks 

would overtravel the substandard berms. This, too, is logically untenable under the facts 

presented. 

Worth noting is the extent of the violations. The berms failed to meet the height deemed 

necessary to protect miners for lengths ranging from one hundred to more than one thousand 

feet. Nowhere does the motion address the effect the extensive nature of the violation might 

have on the likelihood of a truck encountering a berm that was not constructed as required to 

prevent overtravel. 

It is also important to note that the berm heights were not cited because they technically 

failed to meet the Secretary’s standards or were marginally deficient. When measured, the 

height of some of the berms was between 24 and 30 inches—less than half (and perhaps as little 

as 40 percent) of the required height. 

It is possible to make a principled, cogent argument questioning whether the degree of a 

violation would be sufficient to support an S&S designation. See ICG Illinois, LLC, 38 

FMSHRC 2473, 2483–92 (Oct. 2016) (Althen, Comm’r, dissenting) (noting the lack of record 

evidence showing that an 11-percent exceedance in distance of refuge chamber from working 

face would impair the ability of miners to reach and use the chamber in an emergency). The 

motion completely fails to note any deficiency in the facts they have chosen to present, which 

establish these violations as S&S. 

Commission precedent also forecloses the motion’s assertion that these violations might 

not be found to be S&S at hearing. The berms here were similar to those in The Hanna Mining 

Co., and the drop-off was significantly higher than that found sufficient for S&S in Buffalo 

Crushed Stone, Inc. Indeed, degree of danger, as described in the facts the parties have chosen 

to present, is extraordinary, and there is no rational basis upon which one might conclude that 

these violations, as defined in the citation and affirmed by the facts presented in support of the 

motion, are not S&S. 

Rather than adequately challenging any of the Mathies elements, the facts provided 

instead abundantly support the conclusion that the violations must be affirmed as S&S. The 

cited berm heights were inadequate, sufficient for a finding of violation; overtravel and a 

substantial fall was reasonably likely due to that inadequacy, because the reasoned judgment of 

the Secretary has determined what must be provided, and the cited berms are woefully short of 

that standard; an injury was self-evidently likely to result from the 50-foot fall in heavy 

equipment; and permanent disability or death was the foreseeable consequence of that fall. The 

45 FMSHRC Page 720
facts presented therefore do not enable me to conclude that the Secretary has not abused her 

discretion in removing the designation; I would abuse mine if I approved the settlement.4

The Secretary also continues to incorrectly assert the ability to exercise discretion to 

remove an S&S designation as part of a settlement, citing American Aggregates of Michigan, 

Inc. and Mechanicsville Concrete, Inc. to claim this unfettered discretion. S. Mot. at 3–4. These 

cases are known by now to be invalid as authority for the principles they claim to represent. 

Mechanicsville stated that a judge may not add an S&S designation on his or her own 

initiative. 18 FMSHRC 877, 880, 882 (June 1996). This action involves a proposal to delete one 

in settlement. American Aggregates stated, “Commission Judges do not have the discretion to 

make [an S&S finding] unless it is asserted in the first instance by MSHA.” 42 FMSHRC 570, 

576 (Aug. 2020). Here, the finding was asserted by MSHA in the first instance. Further, that 

decision reversed a judge’s settlement denial because he ignored multiple provided facts relevant 

to the proposed modifications. Id. at 577, 581. The motion here does not provide facts that 

challenge the S&S designation. Neither, therefore, is applicable to the situation here. 

Commission judges have repeatedly criticized the Secretary’s use of Mechanicsville 

Concrete and American Aggregates of Michigan in this context as a blatant misstatement of the 

law. As one such order recently noted, “Attorneys have an obligation not to misstate case law.” 

Decision Approving Settlement with Significant Reservations, Docket No. PENN 20222-0129, at 

6 (Apr. 25, 2023) (ALJ) (citing Teamsters Local No. 579 v. B&M Transit Co., 882 F2d. 274, 280 

(7th Cir. 1989)). The court in Teamsters Local No. 579 approved the imposition of Rule 11 

sanctions for the transgression. 

There are minimum standards of practice in every tribunal, including this one. Erroneous 

mischaracterizations of precedent fail to meet those standards and will not be tolerated. A CLR 

who cites these cases, falsely, in a subsequent motion as they have been cited here may be barred 

from practice before me.5

 There may be other consequences. 

IT IS ORDERED that the motion to approve settlement is DENIED. 

Michael G. Young 

Administrative Law Judge 

4

 This does not constitute a finding of violation or S&S; I have not required the Secretary to 

establish such. I merely note that the limited facts the parties have chosen to provide would 

preclude a non-S&S finding for this violation. 

5

 Although these cases were included by a pleading drafted by a CLR, I would expect an attorney 

to know better, and a transgression against the law of this sort by an attorney would be even 

more egregious. 

45 FMSHRC Page 721
Distribution (by email): 

Bruce H. Jakubauskas, CLR, U.S. Department of Labor, MSHA, Thorn Hill Industrial Park, 178 

Thorn Hill Road, Suite 100, Warrendale, PA 15086, jakubauskas.bruce@dol.gov

Jonathan R. Ellis, STEPTOE & JOHNSON PLLC, Chase Tower, Seventeenth Floor, P.O. Box 

1588, Charleston, WV 25326, jonathan.ellis@steptoe-johnson.com

Dana L. Ferguson, Office of the Solicitor, U.S. Dep’t of Labor, 201 12th Street South, Suite 401, 

Arlington, VA 22202, ferguson.dana@dol.gov

45 FMSHRC Page 722
Exhibit D 

45 FMSHRC Page 723
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9987 / FAX: 202-434-9949 

May 11, 2023 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOL MINING COMPANY LLC, 

Respondent 

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2023-0141 

A.C. No. 46-09569-568207 

Mine: Itmann No. 5 

ORDER DENYING MOTION TO APPROVE SETTLEMENT 

AND STRIKING MATERIAL FROM MOTION 

On April 25, 2023, a Commission ALJ issued an order noting with disapproval the 

Secretary’s ongoing citation to Mechanicsville Concrete, Inc., 18 FMSHRC 877, 880, 882 (June 

1996), as authority for her removal of the significant and substantial designations from citations 

during the settlement process. See Decision Approving Settlement with Significant 

Reservations, Docket no. PENN 2022-0129, at 4–6 (Apr. 25, 2023) (ALJ) (“Reservations”). 

Commission judges have routinely observed that Mechanicsville, and the also oft-cited American 

Aggregates of Michigan, Inc., 42 FMSHRC 570, 576 (Aug. 2020), cannot support the premise 

for which they have been cited.1

In this instance, though, the Judge correctly pointed out that parties have a duty not to 

misstate case law and that such misconduct has been affirmed as sanctionable under Rule 11 of 

the Federal Rules of Civil Procedure. See Reservations at 6 (citing Teamsters Local No. 579 v. B 

& M Transit, Inc., 882 F.2d 274, 280 (7th Cir. 1989)). 

Following this, I issued an order on May 3 denying a motion to approve settlement, in 

which I said that the continued citation to these cases as authority for the removal of S&S 

designations falls below the minimum standards of practice before the Commission. See Order 

Accepting Appearance and Denying Motion to Approve Settlement, Docket No. WEVA 2023- 

0071, at 7 (May 3, 2023) (ALJ). I said that a conference and litigation representative who 

submitted a motion with such citations would be barred from practice before me. Id. 

1 See Decision Approving Settlement, Docket No. SE 2023-0046, at 2 (Apr. 24, 2023); Order 

Denying Settlement, Docket No. WEST 2022-0249, at 5 (Nov. 2, 2022) (ALJ); Order Denying 

Settlement, Docket No. WEST 2022-0267 & WEST 2022-0268, at 11 (Oct. 18, 2022) (ALJ). 

45 FMSHRC Page 724
I also said that there might be other consequences. I noted that an attorney should know 

better, and that such misstatements of the law by an attorney would be even more egregious. Id. 

at 7 n.5. The supervising attorney for the Labor Department’s CLR’s was included in the 

distribution for the order. 

On May 9, the Secretary filed with the Commission a Motion to Approve Partial 

Settlement, which again included the offending citations to Mechanicsville and American 

Aggregates. See S. Mot. to Approve Partial Settlement, Docket No. WEVA 2023-0141, at 3 

(May 9, 2023). Not only is the recitation of these cases obviously inappropriate; it is 

impertinent. To my knowledge, no Commission judge has agreed with this mischaracterization 

of the law, and I have approved dozens of S&S removals without ever considering either case as 

authority for the removal. Rather than adhering to the clearly-expressed expectations of the 

Commission’s judges, the Secretary has continued to recite this non-sequitur any time an S&S 

designation is proposed for removal in a settlement. 

An attorney for a government agency who misstates the law arrogates the properly 

conferred constitutional authority of others to determine what the law is. Like bridge scour, this 

subtle corrosion wears on the foundation of the rule of law and threatens the integrity of a 

structure upon which the public depends. 

While the full array of sanctions under Rule 11 may not be available as a corrective, I 

have made clear that misleading use of precedent fails to meet the minimum standards of 

practice before the Commission. Its redress begins with a refusal to accept the unacceptable. By 

this order, I therefore STRIKE the reference to the cited cases and the assertions they 

purportedly support.2

Striking material, and even professional sanctions, are appropriate responses to bad faith 

employment of case law. See Collar v. Abalux, Inc., 806 Fed. Appx. 860, 864 (11th Cir. 2020) 

(affirming sanctions where an attorney continually misstated the import of case law); KamdemOuaffo v. Huczko, 810 Fed. Appx. 82, 83 (3d Cir. 2020) (citing Fed. R. Civ. P. 12(f)) (noting that 

impertinent analysis of law is “plainly vulnerable to [] remedial strike”). Striking the impertinent 

matter from the motion is the least severe sanction I could impose in these circumstances. As 

with the Mine Act, those who persist in the discredited and misleading use of precedent should 

reasonably anticipate that their conduct will be deemed knowing or intentional and will be 

addressed with progressive severity until the practice is discontinued. 

The motion to approve settlement is DENIED without reaching the merits. This denial 

will be reconsidered if the parties refile the motion without the noted language, see supra note 2. 

The parties should anticipate that the matters addressed by the motion will be resolved at hearing 

2

 The language to be stricken from the motion reads: “Taking into account the uncertainty of the 

outcome of these issues at trial, the Secretary has decided to exercise her discretion to modify the 

gravity to unlikely and not S&S as recognized in Am. Aggregates of Michigan, Inc., 42 

FMSHRC 570, 576-79 (Aug. 2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 

879-80 (June 1996)).” Mot. at 3. 

45 FMSHRC Page 725
unless and until a motion that meets the standards of practice before the Commission has been 

filed. 

Michael G. Young 

Administrative Law Judge 

Distribution: 

Robert S. Wilson, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite 

401, Arlington, VA 22202-5450, wilson.robert.s@dol.gov

D. Cass Trent, CLR, U.S. Department of Labor, MSHA, 4499 Appalachian Hwy, Pineville, WV 

24874, trent.david@dol.gov

Jim McHugh, Hardy Pence LLC, 10 Hale Street, 4th Floor, P.O. Box 2548, Charleston, WV 

25329, jmchugh@hardypence.com

Craig Aaron, CONSOL Energy Inc., 275 Technology Drive, Suite 101, Canonsburg, PA 15317, 

craigaaron@consolenergy.com

45 FMSHRC Page 726