FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

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

Washington, DC 20004

Office: (202) 434-9933 / Fax: (202) 434-9949 

April 27, 2023 

 

DECISION APPROVING SETTLEMENT

Before: Judge William Moran

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

under section 105(d) of the Federal Mine Safety and Health Act of 1977. The CLR 

has filed a motion to approve settlement. The originally assessed amount was

$1,189.00 and the proposed settlement is for $878.00. 

Citation/Order

MSHA’s 

Proposed 

Penalty

Settlement 

Amount

Other modifications to 

citation/order

9567361 $626.00 $626.00 

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

TOTAL $1,189.00 $878.00 

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

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

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

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner

 v. 

GREENBRIER MINERALS, LLC,

 Respondent

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2023-0036

A.C. No. 46-02140-563930 

Mine: Saunders Preparation Plant
2

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

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

Citation No. 9567358; the citation with the 55% reduction in the penalty.

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

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

condition:

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

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

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

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

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

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

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

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

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

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

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

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

clean.”

Petition for Civil Penalty at 6

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

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

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

inspection. Motion at 3 (emphasis added).

Citation No 956736; the citation paid in full.

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

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

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

No. 9567358, described above. 

The condition or practice section of the citation informed:

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

condition:

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

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

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

scratched on the outside and dirty in between the outer glass and inner glass.
3

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

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

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

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

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

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

Petition for civil penalty at 8.

Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

demonstrate ‘good faith’ in achieving rapid compliance. 

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

(b) order itself for the Commission to view, hiding the salient information from the Commission, 

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

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

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

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

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

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

docket. 

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

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

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

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

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

1 https://www.ritchiespecs.com/model/caterpillar-d10r-crawler-tractor
4

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

penalty, as opposed to valid justifications for penalty reductions. 

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

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

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

settlement motion is sufficient for approval. 

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

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

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

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

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

2 30 C.F.R. §100.3, and Table X.
5

 WHEREFORE, the motion for approval of settlement is GRANTED. Citation

No. 9567358 is modified to low negligence, with the penalty reduced to $252.00 for that 

violation. It is further ORDERED that the operator pay the penalty of $878.00 within 30 days

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

____________________

William B. Moran

 Administrative Law Judge

Distribution:

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

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

ridley.norman@dol.gov

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

WV 26501. lorna.waddell@dinsmore.com

3 Penalties may be paid electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

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