1 

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

June 21, 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 Conference and 

Litigation Representative, (“CLR”), has filed a motion to approve settlement. The originally 

assessed amount was $747.00 and the proposed settlement is for $429.00. The amounts and 

modifications are reflected in the following table.

Citation/ 

Order

MSHA’s

Proposed 

Penalty

Settlement 

Amount Other modifications to citation/order

9714863 $318.00 $143.00 Modify to low negligence

55% reduction in regularly assessed 

penalty

9714864 $143.00 $0.00 Vacate

9714865 $143.00 $143.00 Modify to unlikely, not significant and 

substantial

9714866 $143.00 $143.00 No changes1

Total $747.00 $429.00 43% overall reduction in penalty

1 Citation No. 9714866, a paperwork recording violation, remained unchanged, and the 

Respondent agreed to accept it as issued and pay the assessed penalty. Motion at 4.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

 Petitioner

 v. 

JOHN S. LANE & SON INC, 

Respondent

CIVIL PENALTY PROCEEDING

Docket No. YORK 2023-0051 

A.C. No. 19-00014-571201 

Mine: Westfield Quarry Plant 78 
The Court is aware that the penalties in this docket, even as proposed, are of low dollar 

amounts. However, in the spirit of protecting the safety and health of our Nation’s miners, the 

dollar amount is not the sole concern when reviewing settlements. Rather, the substance of the 

alleged violations matters too.

Citation No. 9714863

This Section 104(a) citation involves a now-admitted violation of 30 C.F.R 56.11001. 

That section, titled “Safe Access,” provides: “Safe means of access shall be provided and 

maintained to all working places.” 

The citation, issued by MSHA Inspector Brandt L. Berryann, provided a detailed and 

excellent recounting of the hazard. That hazard was great, with the inspector stating that a 

permanently disabling injury was reasonably likely. To his great credit, Inspector Berryann, took 

photos of the hazardous condition. However, the Court is not permitted to see the photos, 

informative as they would likely be. The reason for this prohibition is unclear. The only reason 

the Court can discern is the “see no evil” approach2 or that the The American Coal Co. and 

Rockwell Mining, LLC, decisions, cited below, preclude the need for photos. 

The inspector recounted: 

Safe access was not provided to the transfer chute between conveyors CS and CS 

located at the Primary Plant. A miner had accessed the chute for cleaning and 

maintenance by climbing a step ladder, egressing the ladder laterally by 

stepping onto the conveyor CS frame measuring 36-inches from the ladder by 

39-inches high which was covered in hardened earthen material, climbing 

vertically to the top of the CS conveyor skirt boards measuring 64-inches high, 

onto the CS conveyor belt, climbing through an approximate 2.5- by 2.5-foot 

diameter access door at the discharge end of the chute, then climbed vertically 

up the interior of the chute, exiting through a removed access panel 

approximately 4-feet above the conveyor and directly below the CS conveyor 

catwalk, where the miner then affixed the provided fall protection to the CS 

catwalk mid-railing while standing on a stone step within the chute, with the upper 

torso of the miner extending through the exterior of the chute, and the miner 

operating a pneumatic chipping hammer inside the chute to free hardened material 

within the chute falling to the CS conveyor below increasing the likelihood of an 

accident/ injury to occur. This condition exposed the miner to a slip/ trip/ fall 

hazard. In the event a miner were to slip// trip/ fall hazard. In the event a miner 

were to slip/trip/ fall while accessing the chute a permanently disabling injury 

would be expected. Photo taken. 

Petition for Civil Penalty at 6. (emphasis added).

2 Dating back to the Muromachi period of Japan, 1338-1573, this expression is now often used to 

mean to ignore bad behavior by pretending not to hear or see it. 

https://www.britannica.com/event/Muromachi-period, 

https://www.macmillandictionary.com/us/dictionary/american/hear-no-evil-see-no-evil-speakevil 
To terminate the citation, the inspector recorded the following: 

The miner was removed from the chute with a boomlift, the mine operator developed and 

implemented a standard operating procedure for safe access to working at heights, conducted a 

toolbox talk with all miners, and conducted task training on these procedures with the affected 

miner terminating this citation. Photo taken. Id. at 7.

Analysis: A model of brevity, the Secretary offered the following in support of its view 

that the negligence should be considered ‘low,’ stating: “Respondent will argue that management 

had no direct knowledge of the observed practice, and a man-lift was on site and available for 

elevated tasks, indicating the negligence was somewhat lower than originally evaluated by the 

inspector.” Motion at 3.

In the Court’s view, the Secretary has presented paltry support for this egregious 

violation. In no way does it provide considerable mitigating information. It cannot be passed off 

as low negligence simply on the basis of the claim that the operator had no ‘direct knowledge’ of 

the hazardous action. Even if the knowledge was indirect, it was obvious and there are people 

known as foremen to oversee work. Further, the operator only then developed a standard 

operating procedure for safe access to working at heights, a serious failure, contradicting any 

justification to award ‘low’ negligence. It should not be overlooked that the inspector had 

already, generously in the Court’s estimation, called the negligence ‘moderate,’ meaning there 

was some mitigation awarded. 

Although, respecting the Commission case law cited below, the settlement must be 

approved, the Court does not believe that the small penalty of $143.00, an amount tantamount to 

the minimum penalty under Part 100, is consonant with Congress’ concern that penalties are to 

be of an amount sufficient to make non-compliance more expensive than compliance.

Citation No. 9714864

This citation, invoking 30 C.F.R. § 56.12068, is plain and direct. Titled “providing: 

Locking transformer enclosures, it provides in clear language: “Transformer enclosures shall be 

kept locked against unauthorized entry.” (emphasis added)

Issuing Inspector Berryann, recorded in his citation: 

An energized stepdown enclosed transformer was not kept locked against 

unauthorized entry providing 480-VAC to the Powerhouse North Pump Building. 

The transformer access door handle was provided with a means to lock and secure 

the transformer, but was not utilized. This condition exposed the miner to a shock/ 

burn hazard. In the event a miner were to enter the transformer a fatal shock would 

be expected. Photo taken.

Petition for Civil Penalty at 8

Even though the Court is not permitted to view the photograph, it still compliments the 

inspector for his diligent effort to record his observation. 

The Secretary announces that this violation is vacated in an exercise of his prosecutorial 

discretion. 
Analysis:

Although the Court recognizes that the Secretary presently has the authority to vacate 

citations without presenting any reason for such a decision, it is hard to understand this decision 

to vacate. What is not hard to understand is that a non-utilized handle to lock the transformer 

enclosure was found and that an unlocked transformer enclosure is not a locked transformer. 

Confirming that there was in fact a violation, Inspector Berryman informed in terminating the 

violation, “a keyed lock was installed on the transformer door handle terminating the citation.” 

Again, to his continued credit, Inspector Berryann took a photo of action reflecting the 

installation of the keyed lock. Given the very low proposed penalty, at $143.00, and at that 

barely more than the minimum penalty, the decision to vacate is a mystery. 

Citation No. 9714865

For this citation, Inspector Berryann cited a violation of 30 C.F.R.§56.14025. It applies 

to machinery, equipment, and tools and, like the other standards mentioned above, it too is 

understandable to persons of ordinary intelligence, with its clear requirement that “Machinery, 

equipment, and tools shall not be used beyond the design capacity intended by the manufacturer 

where such use may create a hazard to persons.”

In this instance, the inspector’s description of the condition and practice recounted: 

A Spedecut 3-inch cut-off wheel was used beyond the design capacity intended by 

the manufacturer where such use created a hazard to persons located on a pneumatic 

die grinder in the black Craftsman toolbox in the Maintenance Shop. The cut-off 

wheel was attached to the die grinder with no installed flange guard as required. 

The cut-off wheel was used/ returned in this condition, and held by hand when 

used increasing the likelihood of an accident/ injury to occur. This condition 

exposed the miner to contact with or being struck with a fragmenting cut-off wheel 

hazard. In the event a miner were to come into contact or were struck with a 

fragmenting wheel a permanently disabling injury would be expected. Photo taken

Petition for civil penalty at 9

The inspector believed that an accident was reasonably likely to occur and that if it did, it 

would be permanently disabling. Accordingly, he listed it as significant and substantial. The 

negligence was marked as ‘low’ by the inspector. 

To terminate the citation, the Inspector noted:

The cut-off wheel was removed from the die grinder and the miner was given a safety 

talk terminating this citation. Photo taken. Further, the mine operator was put-on-notice that 

should the die grinder be observed with an attachment installed requiring a guard, with no guard 

installed, that this would be considered aggravated conduct constituting more than ordinary 

negligence. 
Analysis:

It appears, clearly, that the inspector had it quite right. Miners should appreciate his 

perceptive observation of the hazard the cited condition presented. Norton Abrasives3, in an 

article titled “Cut-Off Wheels and Die Grinders – A Dangerous Combination,” explains that 

“the difference between a cut-off tool and a die grinder [is] [s]imple – cut-off tools come 

equipped with a guard and proper mounting flanges designed for cut-off wheels, and the speed is 

compatible with the cut-off wheel. ... While die grinders may look similar to cut-off tools, they 

are not. They are unguarded tools without flanges and should NEVER be used with cut-off 

wheels. It is simple to remember: if the tool does not have a guard, do not use a cut-off 

wheel. https://www.nortonabrasives.com/en-us/resources/expertise/cut-wheels-and-die-grindersdangerous-combination (emphasis in original, bold print added). 

In what the Court views as an unintentional lack of understanding on the part of the CLR, 

Mr. Jakubauskas, in his motion states: “The unguarded cut-off tool was not observed in use, so 

an accurate determination of the hazards present could not be qualified to support reasonably 

likely. The miner owned tool was in storage at the time of inspection, and no visible physical 

damage to the cutoff wheel was observed, further lessening the likelihood of an injury.” Motion 

at 3.

The remarks cited above from the manufacturer demonstrate that the CLR was incorrect. 

That ill-founded assertion was compounded by two more inaccurate remarks. The establishment 

of a violation does not require that the condition be observed in use. Such a prerequisite would 

be ludicrous. The second inaccuracy is the CLR citing Am. Aggregates of Michigan, Inc., 42 

FMSHRC 570, 576-79 (Aug. 2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 

879-80 (June 1996) as authority permitting the Secretary with discretion to modify an extant

significant and substantial designation. Those cases do not stand for that claim. The Court 

recognizes that CLRs, not being attorneys, just echo what they are told to say on that score, but 

just following orders, repeating what someone else (the Solicitor) directs one to assert doesn’t 

make it true. 

 Accordingly, the CLR improperly asserted his discretion to turn the violation into a nonsignificant and substantial violation, an assertion contrary to the hazard presented and contrary to 

current Commission decisional law. 

Conclusion 

In spite of all the identified inadequacies, the motion must be approved. This is because 

the Court is obligated, and does, honor Commission case law regarding a judge’s review of 

settlement motions. On that account, 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. 

3 Norton Abrasives has been in the abrasives business for more than 130 years. 

https://www.nortonabrasives.com/en-us
 

WHEREFORE, the motion for approval of settlement is GRANTED. 

It is ORDERED that Citation No. 9714863 be MODIFIED to low negligence and 

Citation No. 9714865 be MODIFIED to unlikely, and by that redesignation as unlikely, 

modified to not significant and substantial. The reduced penalties are reflected in the table 

above. 

 The Respondent is ORDERED to pay the sum of $429.00 within thirty days of the final 

order.4 Upon receipt of payment, this case is DISMISSED. 

 

 

 ____________________ 

 William B. Moran

 Administrative Law Judge

Distribution:

CLR Bruce H. Jakubauskas, U.S. Department of Labor, Mine Safety and Health Administration, 

Thornhill Industrial Park, 178 Thorn Hill Road, Suite 100, Warrendale, PA 15086, 

jakubauskas.bruce@dol.gov

Michael Peelish, Attorney / Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D, 

Beltsville, MD 20705 mpeelish@aabramslaw.com

4 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.