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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19th ST. SUITE 443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5266 FAX: 303-844-5268

August 7, 2020

DECISION ON REMAND

Before: Judge Miller

This case is before me upon petition for assessment of a civil penalty filed by the 

Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815(d) (“the Act”). This case was remanded by the Commission to determine 

an appropriate civil penalty for Citation No. 8502992, issued pursuant to Section 103(a), with a 

total proposed penalty of $18,742.00. 

I. HISTORY OF THE CASE

This case was originally assigned to Administrative Law Judge L. Zane Gill. On July 24, 

2015, KenAmerican Resources (“KenAmerican”) filed a motion for summary judgment, alleging 

that the Secretary’s claims were unsubstantiated and that there was no violation of section 103(a)

of the Mine Act. That section of the act, states in pertinent part that “no advance notice of an 

inspection shall be provided to any person,” 30 U.S.C. § 813. KenAmerican’s motion was 

granted and the citation was vacated. Sec’y of Labor v. KenAmerican Resources, Inc., 37 

FMSHRC 1809 (Aug. 2015) (ALJ). On August 25, 2016, following a petition for discretionary 

review, the Commission found that the summary decision was improper and reversed and 

remanded the case with instructions to hold a hearing. Sec’y of Labor v. KenAmerican 

Resources, Inc., 38 FMSRC 1943 (Aug. 2016). After an evidentiary hearing of the case, Judge 

Gill issued a decision on December 14, 2018, finding that the Secretary failed to establish a 

violation. Sec’y of Labor v. KenAmerican Resources, Inc., 40 FMSHRC 1544 (Dec. 2018) 

(ALJ). 

Following Judge Gill’s decision, the Commission granted the Secretary a second petition 

for discretionary review. After briefing and argument, the Commission determined that a 

violation had occurred as set forth in the citation issued by the Secretary and determined that the 

case should be remanded for the assessment of a penalty consistent with section 110(i) of the 

Act. 30 U.S.C. § 821(i). The Commission decision constitutes the law of the case. See Pepper 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

KENAMERICAN RESOURCES, INC.,

 Respondent

CIVIL PENALTY PROCEEDING

Docket No. KENT 2013-0211

A.C. No. 15-17741-305075

Mine: Paradise #9
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v. United States, 131 S. Ct. 1229, 1250 (2011). Following the unexpected passing of 

Judge Gill on June 23, 2020, this case was reassigned to determine the appropriate penalty. For 

the reasons set forth below, I assess the penalty in the amount proposed by the Secretary. 

II. ISSUE ON REMAND

On April 20, 2012, MSHA Inspector Doyle Sparks and six other inspectors traveled to 

KenAmerican’s Paradise #9 mine to conduct an investigation in response to a complaint of an 

alleged hazardous condition. Before the inspectors traveled into the mine to begin their 

investigation, MSHA inspectors instructed the miners on the surface not to warn underground 

personnel that MSHA inspectors were present. While inspector Sparks monitored the mine’s 

communication system, he heard an exchange between two miners that appeared to be providing 

advance notice to the miners underground. Sparks overheard a call from the #4 unit in which a 

miner asked the dispatcher if there was “company outside,” to which the dispatcher responded, 

“yeah, I think there is.” Tr. 23-24, 163-164. Sparks asked the underground miner to identify 

himself, but received no response. Once underground, Sparks made a second attempt to identify

the miner, but again received no response. The Commission found that Holz, the dispatcher,

agreed that a miner asked him if “company” was outside and that he understood the unidentified 

miner’s question to be an inquiry into the presence of MSHA inspectors. “Therefore, he knew 

the question presented a request for advance notice.” Sec’y of Labor v. KenAmerican Resources, 

Inc., 42 FMSHRC 1, slip op. at 2, No. KENT 2013-0211 (Jan. 16, 2020). 

Sparks issued Citation No. 8502992 to Respondent pursuant to Section 103(a) of the 

Mine Act alleging that mine personnel provided advance notice to underground miners that 

MSHA inspectors were on site during a hazard complaint inspection. Tr.10. Section 103(a) of 

the Mine Act authorizes the mine inspectors to conduct inspections and investigations of coal 

and other mines. This section also requires that “In carrying out the requirements of this 

subsection, no advance notice of an inspection shall be provided to any person....” Similarly, a 

person who provides advance notice of an inspection may face the possibility of a criminal 

prosecution. 30 U.S.C 820(3). The citation, after amendment, was issued as a significant and 

substantial violation and the result of high negligence. The Commission upheld the citation as 

issued and remanded the case solely for the assessment of civil penalty. The penalty assessment 

is based upon the Commission’s decision on remand and the record in its entirety, including the 

hearing transcript and the briefs filed by the parties in the case. 

III. PENALTY

The principles governing the authority of Commission Administrative Law Judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). Commission Judges are not bound by the Secretary’s 

penalty regulations. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act 

requires that in assessing civil monetary penalties, the judge must consider six statutory penalty 

criteria: the operator’s history of violations, its size, whether the operator was negligent, the 

effect on the operator’s ability to continue in business, the gravity of the violation, and whether 

the violation was abated in good faith. 30 U.S.C. § 820(i). 
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The Secretary has proposed a penalty of $18,742.00 for the violation. I have considered 

and applied the six penalty criteria found in Section 110(i) of the Act. I have reviewed the 

history of this operator and taken note of the fact that two mine superintendents and a foreman 

were previously convicted of the crime of providing advance notice at this mine.1 I have also 

considered that this is a large-sized operator, and that the parties have stipulated to the ability to 

pay. No issue was raised by either party about a lack of good faith abatement. 

The violation was assessed as significant and substantial and was the result of high 

negligence. The Commission made no change to these findings in its decision and I accept the 

findings in determining a penalty. The violation was significant and substantial, given the 

importance placed on the notice requirement in the Act and that providing notice could result in a 

criminal prosecution. In addition, giving advance notice allows a mine operator the opportunity

to alter violative conditions prior to the arrival of an MSHA inspector and allows the 

continuation of operations under violative conditions after an inspector departs. Therefore, the 

gravity of the violation is serious, and the penalty is intended to reflect that it is serious.

The Commission has recognized that “[e]ach mandatory standard ... carries with it an 

accompanying duty of care to avoid violations of the standard, and an operator’s failure to meet 

the appropriate duty can lead to a finding of negligence if a violation of the standard occurs.” 

A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met 

its duty of care, the judge must consider “what actions would have been taken under the same 

circumstances by a reasonably prudent person familiar with the mining industry, the relevant 

facts, and the protective purpose of the regulation.” Newtown, 38 FMSHRC at 2047; Brody 

Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); U.S. Steel Corp., 6 FMSHRC 1908, 1910 

(Aug. 1984). While the Secretary’s Part 100 regulations evaluate negligence based on the 

presence of mitigating factors, Commission judges are not limited to that analysis. Brody, 37 

FMSHRC at 1702-03. Rather, Commission judges consider “the totality of the circumstances 

holistically” and may find high negligence in spite of mitigating circumstances. Id. at 1702. The 

Commission has recognized that “the gravamen of high negligence is that it ‘suggests an 

aggravated lack of care that is more than ordinary negligence.’” Id. at 1703 (quoting Topper 

Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)). 

In reviewing the record as a whole and the Commission decision, I find that the

designation of high negligence is well supported. The record clearly indicates that an affirmative 

response was provided to a request for advance notice from an underground miner, even after the 

inspectors warned the miners at the surface not to engage in that conduct. Management’s failure 

to instruct or ensure that no advance notice was given prior to inspections constitutes more than 

 1 See KenAmerican Resources, slip op. at 5 (Jan. 16, 2020)(noting that “two mine 

superintendents and a foreman working at the Paradise No. 9 mine were previously convicted of 

the crime of providing advance notice.” (citing United States v. Gibson, 409 F.3d 325, 333 (6th

Cir. 2005)).
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ordinary negligence. See Ky. Fuel Corp., 40 FMSHRC 28 (Feb. 2018) (in which the 

Commission approved a judge’s decision that similarly concluded that high negligence was 

appropriate due largely to an operator’s failure to provide adequate training and materials to 

prevent a violation). A finding of high negligence is further supported by the circumstances 

surrounding the violation, in particular the unidentified miner’s refusal to identify himself on the 

phone or in person when Sparks arrived underground and Holz’s admission that he knew he was 

prohibited from providing advance notice of MSHA’s presence to underground miners.

IV. ORDER

I have reviewed the record in its entirety and find that the Secretary’s proposed penalty is 

appropriate in this case. Accordingly, Respondent is hereby ORDERED to pay the Secretary of 

Labor the sum of $18,742.00 within 30 days of the date of this decision.

Margaret A. Miller

Administrative Law Judge
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Distribution: (Electronic Mail with Appeal cover sheet)

Emily Toler Scott, Ali A. Beydoun, April Nelson, U.S. Department of Labor, Office of the 

Solicitor, 201 12th Street South, Suite 401, Arlington, VA 22202-5450

Scott.emily.t@dol.gov, beydoun.ali@dol.gov, nelson.april@dol.gov

Melanie Garris, U.S. Department of Labor, MSHA, Office of Civil Penalty Compliance, 201 12th

Street South, Suite 401, Arlington, VA 22202-5450, garris.melanie@dol.gov

Jason Hardin, Artmeis Vamianakis, Fabian VanCott, 215 South State Street, Suite 1200, 

Salt Lake City, UT 84111-2323, jhardin@fabianlaw.com, avamianakis@fabianlaw.com