i 

January 2023 

TABLE OF CONTENTS 

COMMISSION ORDERS 

01-20-23 VULCAN CONSTRUCTION 

MATERIALS, LLC 

SE 2021-0163 Page 1

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-11-23 APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC 

WEVA 2022-0301 Page 5

01-11-23 APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC 

WEVA 2022-0428 Page 34

01-17-23 IRON CUMBERLAND, LLC PENN 2022-0084 Page 55

01-24-23 APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC 

WEVA 2022-0554 Page 75

ADMINISTRATIVE LAW JUDGE ORDERS 

01-06-23 PACER MINERALS, LLC CENT 2023-0058 Page 83
ii 

Review Was Granted In The Following Cases During The Month Of 

January 2023 

Secretary of Labor obo Jason Hargis v. Vulcan Construction Materials, LLC and Jason Hargis v. 

Vulcan Construction Materials, LLC, Docket Nos. SE 2021-0163, et al. 

(Judge Young, 12/01/2022) 
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

January 20, 2023 

ORDER 

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. The cases are hereby consolidated. 

The Secretary shall file his opening brief no later than February 21, 2023. Vulcan and 

the Complainant may file response briefs by March 23, 2023, if they desire. The Secretary may 

file a reply brief no later than April 12, 2023. 

Vulcan shall file its opening brief no later than February 21, 2023. The Secretary and the 

Complainant may file response briefs by March 23, 2023, if they desire. Vulcan may file a reply 

brief no later than April 12, 2023. 

 The Complainant shall file his opening brief no later than February 21, 2023. Vulcan 

and the Secretary may file response briefs by March 23, 2023, if they desire. The Complainant 

may file a reply brief no later than April 12, 2023. 

 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of JASON HARGIS 

v. 

VULCAN CONSTRUCTION 

MATERIALS, LLC 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

VULCAN CONSTRUCTION 

MATERIALS, LLC 

 

Docket No. SE 2021-0163 

 

Docket No. SE 2022-0001 

Docket No. SE 2022-0013 

45 FMSHRC Page 1
Any party may elect to consolidate their response briefs to any opening briefs and any 

reply briefs in accordance with this briefing schedule. 

/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 2
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 

Melanie Garris 

U.S. Department of Labor 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@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 

45 FMSHRC Page 3
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 4
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 

January 11, 2023 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2022-0301 

AC No. 46-08930-551112 

Mine: Grapevine South Surface Mine 

 

DECISION APPROVING SETTLEMENT 

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 Secretary has filed the 

Motion to Approve Settlement for the citations and orders involved in this matter. The parties 

move to modify the citations and orders, as stated below.1 The total penalty would be reduced 

accordingly, from the original assessed amount of $29,668.00 to $23,365.00. Although the 

overall reduction for the docket is 21%, two of the citations each received a penalty reduction of 

80%.

Citation/Order MSHA’s 

Proposed 

Penalty 

Settlement 

Amount 

Other modifications to citation/order 

9563136 

(Associated 

104(b) Order 

No. 9563148)

$626.00 $626.00 Violation of 30 C.F.R. § 77.1606(c), 

defects affecting safety on 777D 

Caterpillar Haulage Truck 

Sustained as Issued- No penalty 

reduction

9563137 

(Associated 104 

(b) Order 

No. 9563147) 

$453.00 $453.00 Violation of 30 C.F.R. § 77.1605(d), 

non-functioning signal and brake lights, 

audible warning alarm. Sustained as 

Issued - No penalty reduction 

 

1 This docket originally consisted of 33 citations/orders, until 16 of the citations/orders 

were reallocated into WEVA 2022-0428. Order for Docket Reallocation, June 29, 2022. 

45 FMSHRC Page 5
9563138 

(Associated 

104(b) Order 

No. 9563177) 

$934.00 $934.00 Violation of 30 C.F.R. § 77.1606(c), 

defects affecting safety on D10R 

Caterpillar Dozer Co. No. D007. 

Sustained as Issued- No penalty 

reduction 

9563139 $407.00 $407.00 Violation of 30 C.F.R. § 77.1605(d), 

non-functioning lights on D10R 

Caterpillar Dozer Co. No. D007. 

Sustained as Issued- No penalty 

reduction 

9563140 $296.00 $296.00 Violation of 30 C.F.R. § 77.1605(k), no 

berm provided on three sumps along 

elevated haulroad. 

Sustained as Issued-No penalty 

reduction 

9563141 

(Associated 

104(b) Order 

No. 9563182) 

$11,149.00 $9,918.00 Violation of 30 C.F.R. § 77.1605(d), 

non-functioning signal, brake, and high 

beam lights, non-functioning horn. 

Penalty Reduction of 11%

9563142 

(Associated 

104(b) Order 

No. 9563181) 

$1,393.00 $1,393.00 Violation of 30 C.F.R. § 77.1606(c), 

defects affecting safety on 785D 

Caterpillar Haulage Truck Co. No. 

RT111. 

Sustained as Issued- No penalty 

reduction 

9563143 

(Associated 

104(b) Order 

No. 4563178) 

$1,393.00 $1,393.00 Violation of 30 C.F.R. § 77.1606(c), 

defects affecting safety on 785C 

Caterpillar Haulage Truck Co. No. 

RT269. 

Sustained as Issued- No penalty 

reduction 

9563144 $1,471.00 $296.00 Violation of 30 C.F.R. § 77.1001, 

spoilbank not stripped for a safe distance 

from top of the pit, not sloped to the 

angle of repose, toe of spoilbank has 

been dug out, is not bermed off to 

prevent unauthorized access. Modify the 

gravity from “reasonably likely” to 

“unlikely” and from “S&S” to “nonS&S” with a penalty reduction in 

accordance with 30 C.F.R. part 100.3. 

Penalty reduction of 80%.

9563145 $1,253.00 $1,253.00 Violation of 30 C.F.R. § 77.1606(c), 

defects affecting safety on 980G 

Caterpillar Front-End Loader Co. No. 

1893. 

45 FMSHRC Page 6
Sustained as Issued- No penalty 

reduction 

9563146 

(Associated 

104(b) Order 

No. 9563180) 

$1,393.00 $1,393.00 Violation of 30 C.F.R. § 77.1606(c), 

defects affecting safety on 785D 

Caterpillar Haulage Truck Co. No. 

RT112. 

Sustained as Issued- No penalty 

reduction 

9563149 $1,253.00 $1,253.00 Violation of 30 C.F.R. § 77.1606(c), 

defects affecting safety on 992G 

Caterpillar Front-End Loader Co. No. 

L001. 

Sustained as Issued- No penalty 

reduction 

9563150 $133.00 $133.00 Violation of 30 C.F.R. § 77.1110, no 

permanent tag on portable fire 

extinguisher on 992G Caterpillar FrontEnd Loader Co. No. L001. 

Sustained as Issued- No penalty 

reduction 

9563151 $1,253.00 $1,253.00 Violation of 30 C.F.R. § 77.1606(c), 

defects affecting safety on Mack Fuel 

and Oil Service Truck Co. No. GT400. 

Sustained as Issued- No penalty 

reduction 

9563152 $4,884.00 $987.00 Violation of 30 C.F.R. § 77.1004(b), 

Modify the gravity from “reasonably 

likely” to “unlikely” and from “S&S” to 

“non-S&S” with a penalty reduction in 

accordance with 30 C.F.R. part 100.3. 

Penalty reduction of 80%.

9563153 $716.00 $716.00 Violation of 30 C.F.R. § 77.1605(d), 

reverse lights, horn in operator’s cab of 

White Dodge Blasting Truck not 

functioning properly. 

Sustained as Issued- No penalty 

reduction 

9563154 $661.00 $661.00 Violation of 30 C.F.R. § 77.410(c), 

reverse warning alarm on 993K 

Caterpillar Front-End Loader Co. No. 

L465 not maintained in functional 

condition. 

Sustained as Issued- No penalty 

reduction 

TOTAL $29,668.00 $23,365.00 Total penalty reduction of 21% 

45 FMSHRC Page 7
 Section 104(a) citations were issued for citation Nos. 9563136, 9563137, 9563138, 

9563141, 9563142, 9563143, and 9563146. These were followed up with section 104(b) orders. 

As the Commission has noted: 

[t]he purpose of section 104(b) is to spur swift abatement of existing violations 

and compel operator compliance with the Act. ... The issuance of an order for 

a failure to abate promotes compliance by imposing a consequence on an 

operator that refuses to comply with the Mine Act. Moreover, penalizing an 

operator's refusal to comply with the Act in some instances, while allowing its 

refusal in others, falls short of fulfilling the Act's purpose. Thus, the 

Secretary's broad interpretation is consistent with the remedial nature of the 

Act, its structure, and its progressive enforcement scheme of increasingly 

severe sanctions that are applied when an operator incurs repeated violations 

and refuses to comply. See 30 U.S.C. § 814(d), (e); Pattison Sand Co. v. 

FMSHRC, 688 F.3d 507, 513 (8th Cir. 2012). 

 

Hopkins County Coal, 38 FMSHRC 1317, 1335-1336 (June 2016) (emphasis added). 

 For reasons not discernable to the Court, it cannot find a legitimate basis to support 

the Secretary’s decision to hide the duly issued 104(b) orders associated with seven 

citations in this docket, all as identified above.2

 The 104(a) citations, together with the associated (b) orders, are discussed here and will 

be followed by a summary analysis. 

Citation No. 9563136 

Citation No. 9563136 was issued on January 10, 2022, for a violation of 30 C.F.R. 

§ 77.1606(c). Titled “Loading and haulage equipment; inspection and maintenance,” this 

standard specifies that “[e]quipment defects affecting safety shall be corrected before the 

equipment is used.” 30 C.F.R. § 77.1606(c). 

The citation stated: 

The following defects affecting safety existed on the 777D Caterpillar Haulage 

Truck Co. No. M03-546: 

1. A large knot existed on the side wall area of the left rear outside tire. 

2. Oil was leaking from the right rear inside wheel area. 

This truck was being operated in the Grapevine North Pit Area. Defects affecting 

safety shall be corrected before the equipment is used. 

Standard 77.1606(c) was cited 44 times in two years at mine 4608930 (44 to the 

2 Citation Nos. 9563139, 9563140, 9563144, 9563145, 9563149, 9563150, 9563151, 

9563152, 9563153, and 9563154 were issued as 104(a) citations, and received a 10% penalty 

reduction for good faith. All citations and orders in this docket were regularly assessed. 

45 FMSHRC Page 8
operator, 0 to a contractor). 

Pet. for a Civil Penalty at 19. 

 For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably 

be expected to result in “lost workdays or restricted duty,” affecting one person. Id. The 

violation was not found to be significant and substantial. Id. Negligence was found to be “low.” 

Section 104 (b) Order No. 9563148 was issued in association with this citation on 

January 13, 2022. The (b) Order was provided by the Respondent’s attorney. The Court 

appreciates that cooperation. The order read: 

An apparent effort was not made by the operator to correct all the conditions 

that were cited by MSHA on the 777D Caterpillar Haulage Truck Co. No. 

M03-546. This truck was being operated in the Grapevine North Pit Area with 

oil still leaking from the right rear inside wheel area.

Standard 77.1606(c) was cited 50 times in two years at mine 4608930 (50 to the 

operator, 0 to a contractor). 

104(b) Order Addendum at 3 (emphasis added). The order was terminated on January 

19, 2022, with the justification that 

The following actions have been taken to correct the following conditions: 

1. A new tire has been installed 

2. Tighten up the bolts and steam cleaned. 

Id. at 4. 

Thus, this (b) order reflects serious non-compliance with the underlying 104(a) 

citation, with the truck continuing to be operated in the Grapevine North Pit Area with 

one of the cited defects still uncorrected. It is noteworthy that the cited standard was cited 

50 times, all to the mine operator in the past two years. 

Citation No. 9563137 

Citation No. 9563137 was issued on January 10, 2022, for a violation of 30 C.F.R. 

§ 77.1605(d). Titled “Loading and haulage equipment,” the standard specifies that “[m]obile 

equipment shall be provided with audible warning devices. Lights shall be provided on both 

ends when required.” 30 C.F.R. § 77.1605(d). 

The citation stated: 

The following conditions existed on the 777D Caterpillar Haulage Truck Co. No. 

M03-546: 

1. Both front marker/signal lights were not functioning when tested. 

2. Both rear brake lights were not functioning when tested. 

3. The left rear signal light was not functioning when tested. 

45 FMSHRC Page 9
4. The Level 3 audi[b]le warning alarm which is located inside the operators cab 

was not functioning when tested. 

This truck was being operated in the Grapevine North Pit Area. This truck is 

operated before and after daylight hours. Mobile equipment shall be provided with 

audible warning devices. 

Lights shall be provided on both ends when required 

Standard 77.1605(d) was cited 16 times in two years at mine 4608930 (16 to the 

operator, 0 to a contractor). 

Petition at 20. 

 For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably 

be expected to result in “lost workdays or restricted duty,” affecting one person. Id. The 

violation was not found to be significant and substantial. Id. Negligence was found to be “low.” 

Id. 

Section 104(b) Order No. 9563147 was issued as a 104(b) order in connection with 

Citation No. 9563137 on January 13, 2022. The order read: 

No apparent effort was made by the operator to correct all the conditions that were 

cited by MSHA on the 777D Caterpillar Haulage Truck Co. No. M03-546. This 

truck was being operated in the Grapevine North Pit Area with all the conditions 

still existing. 

Standard 77.1605(d) was cited 19 times in two years at mine 4608930 (19 to the 

operator, 0 to a contractor). 

104(b) Order Addendum at 1. 

The order was terminated on January 19, 2022, with the justification that: 

The following actions have been taken to correct the following conditions: 

1. A new light has been installed and the wiring repaired. 

2. New lights have been installed and the wiring repaired. 

3. A new light has been installed and the wiring repaired. 

4. The wiring has been repaired. 

Id. at 2. 

In the Court’s estimation this continued failure to correct multiple lighting defects 

along with a defective non-audible warning alarm is worse than the failure discussed just 

above because none of the cited defects had been corrected at the time the (b) order was 

issued and the truck continued being operated in the Grapevine North Pit Area. 

45 FMSHRC Page 10
Citation No. 9563138 

Citation No. 9563138 was issued on January 10, 2022, for a violation of 30 C.F.R. 

§ 77.1606(c), supra. 

The citation stated: 

The following defects affecting safety existed on the D10R Caterpillar Dozer Co. 

No. D007: 

1. A gap existed in the top corner of the right hand door to the operators cab. With 

the door closed completely the outside of the cab was still visible. 

2. Bolts were missing in the floor board allowing the floor board to be loose and 

not properly sealed. 

3. Oil was leaking out the right side final drive. 

4. Oil could be seen leaking on the right side out of the frame of the dozer. 

5. The seat in the operators cab is bottomed out. 

This dozer was being operated in the Grapevine North Pit Area. Defects affecting 

safety shall be corrected before the equipment is used. 

Standard 77.1606(c) was cited 44 times in two years at mine 4608930 (44 to the 

operator, 0 to a contractor). 

Petition at 21. 

For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably 

be expected to be “permanently disabling,” affecting one person. Id. The violation was not 

found to be significant and substantial. Id. Negligence was found to be “low.” Id. The citation 

was continued on January 13, 2022, with the justification that: 

Repairs are still being conducted at this time. Most of the repairs have been 

completed. The mine operator removed the dozer from service until the repairs 

could be completed, so more time has been granted. 

Id. at 22. 

The citation was continued again on January 18, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

45 FMSHRC Page 11
personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

Id. at 23. 

The citation was continued again on January 24, 2022, with the justification that: 

Repairs are still being conduct at this time. The following repairs have been 

completed 1, 2, 4, and 5. Repair work has been hampered by parts availability and 

limited personnel to complete the repairs. The mine operator has removed the 

equipment from service until these repairs can be completed. 

Id. at 24. 

Section 104(b) Order No. 9563177 was issued on February 1, 2022, in association with 

Citation No. 9563138. 

The citation read: 

A reasonable effort was not made by the mine operator to insure all conditions were 

corrected on the D10R Caterpillar Dozer Co. No. D007. Oil was still leaking from 

the right side of the dozer. Oil could be seen coming out the right side frame of the 

dozer. This dozer was being operated in the Grapevine North Pit Area with this 

condition still existing. 

Standard 77.1606(c) was cited 56 times in two years at mine 4608930 (56 to the 

operator, 0 to a contractor). 

104(b) Order Addendum at 5. 

The order was terminated on February 3, 2022, with the justification that: 

The following actions have been taken to correct the following conditions: 

1. New door striker and door seals have been installed. 

2. All of the bolts have been installed and is now securely in place. 

3. New final drive has been installed. 

4. New hoses and O-rings have been installed. 

5. A new seat has been installed. 

Id. at 6. 

Despite generous forbearance on the part of the MSHA inspector, after issuing 

multiple continuances allowing additional time to correct the five separate defects found on 

a Caterpillar dozer, the inspector was compelled to issue a 104(b) order after three weeks 

had passed without all the defects having been corrected. As with the two previous orders 

discussed above, the vehicle continued to be operated in the Grapevine North Pit Area. For 

45 FMSHRC Page 12
one keeping score, that means three pieces of equipment with defects were all operating in 

the same area. The Order contradicts claims that the equipment had been taken out of 

service until the repairs were completed. 

 

Citation No. 9563141 

 Citation No. 9563141 was issued on January 11, 2022, for a violation of 30 C.F.R. 

§ 77.1605(d), supra. The citation read: 

The following conditions existed on the 785D Caterpillar Haulage Truck Co. No. 

RT111: 

1. The left and right side front signal/marker lights are not functioning when tested. 

2. The left side high beam light is not functioning when tested. 

3. The left and right side rear signal lights are not functioning when tested. 

4. The left and right side brake lights are not functioning when tested. 

5. The horn was not functioning when tested. 

This truck was being operated in the Mill Seat Pit Area (Alma). This truck operates 

before and after daylight hours. Mobile equipment shall be provided with audible 

warning devices, 

Lights shall be provided on both ends when required. These conditions have been 

recorded on the Pre-Operational Examinations and reported to the mine operator. 

Standard 77.1605(d) was cited 18 times in two years at mine 4608930 (18 to the 

operator, 0 to a contractor). 

Petition at 29. 

For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably 

be expected to be “fatal,” affecting one person. Id. The violation was not found to be significant 

and substantial. Id. Negligence was found to be “high.” Id. The citation was continued on 

January 18, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

Id. at 30. 

The citation was continued again on January 24, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

 

45 FMSHRC Page 13
personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

Id. at 31. 

Section 104 (b) Order No. 9563182 was issued on February 1, 2022, in association 

with Citation No. 9563141. The order read: 

A reasonable effort was not made by the mine operator to insure that all conditions 

were corrected on the 785D Caterpillar Haulage Truck Co. No. RT111. 5 of the 

conditions have not been corrected in a reasonable amount of time based on the 

conditions that existed 

Standard 77.1605(d) was cited 21 times in two years at mine 4608930 (21 to the 

operator, 0 to a contractor). 

104(b) Order Addendum at 15. The citation was terminated on February 8, 2022, with 

the justification that: 

The following actions have been taken to correct the conditions: 

1. Repaired the wiring to the lights. 

2. Repaired the wiring to the lights. 

3. Repaired the wiring to the lights. 

4. Repaired the wiring to the lights. 

5. Installed a new steering column and hooked up horn to new column. 

Id. at 16. 

The Secretary moves to keep the citation as issued but reduces the penalty, offering the 

following in support: 

Citation #9563141 will remain as issued with a reduction in penalty. 

The Respondent contends that the gravity of the citation was overevaluated and 

should not have been issued as “fatal”. Respondent would argue at hearing that the 

cited conditions would not cause fatal injuries to miners. Respondent contends that 

the cited truck still had numerous lights on both ends to indicate the location at low 

light. The few sporadic lights that were inoperative would not hinder the safe 

operations while in production. 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, the Secretary has agreed to reduce 

the penalty for Citation #9563141 from $11,149 to $9,918, and the Respondent has 

agreed to pay the reduced penalty. 

Mot. to Approve Settlement at 3-4. 

Citation No. 9563141, which involves an 11% (eleven percent) reduction in the 

penalty, is one of the internally inconsistent settlements about which the Secretary 

45 FMSHRC Page 14
frequently partakes. Standing by the inspector’s evaluation is the easy part of the 

arrangement because the issuing inspector found five, yes five, defects with the mine’s 

785D Caterpillar Haulage Truck Co. No. RT111, four of them related to inoperative lights 

and one for a horn that could not sound. Worse, if possible, the defects were all recorded on 

the pre-op exams, but thereafter still ignored by the operator. While one might guess that 

with all those defects and the operator not acting upon them, though informed of them, the 

Secretary would adhere to the proposed penalty, that guess would be wrong, as the 

Secretary agreed to knock 11% off the regularly assessed penalty. Thus, in the face of the 

104(b) order the Secretary did want to be disclosed, the Secretary, by the 11% reduction, 

in effect monetarily awarded the 10% good faith reduction, which the initial assessment 

had declined. 

On this record, which is all that the Court presently is permitted to have before it, 

there is no way that the Court could find merit, as the Secretary suggests, in the 

arguments presented. In fact, the Secretary finds no merit either, as it does not alter the 

inspector’s evaluation. The inspector’s (b) order related that five of the conditions have 

not been corrected in a reasonable amount of time based on the conditions that existed. As 

with an earlier-discussed order, 20 days had elapsed since the citation was issued, with the 

result that on the 21st day, the (b) order was issued. Further, the only claim is that a 

fatality would not result, but support for that claim is not presented and the Respondent 

does not state the lesser degree of injury to be expected. No mention is made about the 

non-functioning horn, which itself is a significant safety defect. 

Citation No. 9563142 

 Citation No. 9563142 was issued on January 11, 2022, for a violation of 30 C.F.R. 

§77.1606(c), supra. 

 The citation read: 

The following defects affecting safety existed on the 785D Caterpillar Haulage 

Truck Co. No. RT111: 

1. Right front strut is leaking oil. 

2. Right rear strut is leaking oil. 

3. Oil is leaking from the right rear inside wheel area. 

4. Oil is leaking from the right rear outside wheel area. 

5. Oil is leaking from the left rear inside wheel area. 

6. Excessive slack existed in the rear stabilizer bar (dogbone). 

7. Excessive slack existed in the center arm pin. 

8. The left front strut is leaking oil. 

9. Oil is leaking from the right front brake caliber area. 

10. Oil is leaking excessively from the steering oil tank onto the deck and down 

onto the right side of the engine compartment area. 

11. Oil is leaking excessively from the area located behind the hydraulic tank. 

12. Three gussets located on the right side of the truck was cracked and separated. 

13. The right rear inside tire has excessive damage to the tire. 

45 FMSHRC Page 15
This truck was being operated in the Mill Seat Pit Area (Alma). Defects affecting 

safety shall be corrected before the equipment is used. 

Standard 77.1606(c) was cited 46 times in two years at mine 4608930 (46 to the 

operator, 0 to a contractor). 

 Petition at 32-33. 

For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably 

be expected to result in “lost workdays or restricted duty,” affecting one person. Id. at 32. The 

violation was not found to be significant and substantial. Id. Negligence was found to be 

“moderate.” Id. The citation was continued on January 18, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

Id. at 34. 

The citation was continued again on January 24, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

Id. at 35. 

Section 104 (b) Order No. 9563181 was issued on February 1, 2022, in association 

with Citation No. 9563142. 

The order read: 

A reasonable effort was not made by the mine operator to insure that all conditions 

were corrected on the 785D Caterpillar Haulage Truck Co. No. RT111. 4 of the 

conditions have not been corrected in a reasonable amount of time based on the 

conditions that existed 

Standard 77.1606(c) was cited 60 times in two years at mine 4608930 (60 to the 

operator, 0 to a contractor). 

104(b) Order Addendum at 13. The order was terminated on February 8, 2022, with 

the justification that: 

45 FMSHRC Page 16
The following actions have been taken to correct the conditions: 

1. Installed a new strut. 

2. Installed a new strut. 

3. Installed new cooler seals. 

4. Installed new wheel seals on axle cover. 

5. Installed new cooler seals. 

6. Installed new bearings. 

7. Installed new bearing and pin. 

8. Installed a new seal. 

9. Installed new cooler seals. 

10. Resealed the steering tank. 

11. Resealed the back of the hydraulic tank. 

12. Welded the gussets up securely. 

13. Installed a new tire. 

Id. at 14. 

 

Breaking previous records for the citations in this docket, for this citation 13 

(thirteen) separate defects were identified, none of which, in the Court’s estimation, could 

be viewed as inconsequential. Part of what could only be described as a pattern for these 

citations, the (b) order was issued after some 20 days had elapsed with the order being 

issued on the 21st day. Three weeks is, undeniably, a long period of time for the repairs to 

have been accomplished. The inspector’s order stated that a reasonable effort had not 

been made to correct all of the cited conditions within a reasonable amount of time.

Having gained the operator’s attention through the (b) order, the defects were then all 

corrected a week later. 

Citation No. 9563143

Citation No. 9563143 was issued on January 11, 2022, for a violation of 30 C.F.R. 

§ 77.1606(c), supra. 

 The citation stated: 

The following defects affecting safety existed on the 785C Caterpillar Haulage 

Truck Co. No. RT269: 

1. The mud flap located underneath the operators cab is bent down, allowing mud 

to get on the drivers side rear view mirror and onto the window glass of the drivers 

side door. 

2. The truck frame is cracked across the bottom and back side of the frame. The 

crack is located on the rear of the truck above where the stabilizer bar (dogbane) is 

located. 

3. The right rear strut is leaking oil. 

4. The right side rear wheel is leaking oil on the inside area of the wheel. 

5. The left side rear wheel is leaking oil on the inside area of the wheel. 

45 FMSHRC Page 17
6. Oil is leaking from the steering oil tank area which is located on the top deck 

above the engine compartment. The oil is leaking down onto the right side of the 

engine compartment area. 

7. Excessive slack existed in the right side steering jack inside ball stud. The slack 

is visible when the truck is steered in either direction. 

8. Excessive slack existed in the left side steering jack inside ball stud. The slack is 

visible when the truck is steered in either direction. 

9. The front brake canister is over stroked. There is no warning alarm or warning 

light on inside the operators cab. 

10. The handrail located on the front bumper to the right side step is bent and 

missing a bolt. 

11. The hood is broke near the offside door to the operators cab. This hood is also 

used as a walkway (deck) to access the offside door to the operators cab. 

12. The fuel gauge located inside the operators cab was not functioning when tested. 

13. Paper towels are wrapped around the door striker to the drivers side door to the 

operators cab. 

14. Paper towels are installed around the top corner to the drivers side door to the 

operators cab. 

This truck was being operated in the Mill Seat Pit Area (Alma). Defects affecting 

safety shall be corrected before the equipment tis used. 

Standard 77.1606(c) was cited 46 times in two years at mine 4608930 (46 to the 

operator, 0 to a contractor). 

Petition at 36-37. 

For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably 

result in “lost workdays or restricted duty,” affecting one person. Id. at 36. The violation was 

found not to be significant and substantial. Id. Negligence was found to be “moderate.” Id. 

The citation was continued on January 18, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

 

Id. at 38. The citation was continued again on January 24, 2022, with the same 

justification. Id. at 39. 

Section 104 (b) Order No. 9563178 was issued on February 1, 2022, in association with 

Citation No. 9563143. The order read: 

A reasonable effort was not made by the mine operator to insure that all conditions 

were corrected on the 785C Caterpillar Haulage Truck Co. No. RT269. 6 conditions 

45 FMSHRC Page 18
have not been corrected in a reasonable amount of time based on the conditions that 

existed. 

Standard 77.1606(c) was cited 57 times in two years at mine 4608930 (57 to the 

operator, 0 to a contractor). 

104(b) Order Addendum at 7. The order was terminated on February 10, 2022, with the 

justification that “All defects affecting safety, on the 785C Caterpillar Haulage Truck, Co. No. 

RT269, that is operated on the Mill Seat Pit Area (Alma), have been corrected by a qualified 

person.” Id. at 8. 

The previous record for multiple defects, as just discussed, did not last long, as 

Citation No. 9563143 recorded 14 (fourteen) defects on yet another Caterpillar haulage 

truck. As with the other 104(a) citations, some three weeks passed before the inspector 

refused to grant additional continuations, issuing a (b) order. In a similar time frame, nine 

days later, the defects were finally corrected. 

Citation No. 9563146 

 Citation No. 9563146 was issued on January 12, 2022, for a violation of 30 C.F.R. 

§ 77.1606(c), supra. 

 The citation stated: 

The following defects affecting safety existed on the 785D Caterpillar Haulage 

Truck Co. No. RT112: 

1. An excessive oil leak existed on a hose located on the right front area of the truck. 

Oil was spraying out the hose. 

2. An excessive oil leak existed in the area behind the hydraulic tank area. A steady 

streams of oil was coming from this area. 

3. Oil was leaking from the right rear wheel. The inside area of the wheel was 

covered in oil and running down the sidewall of the tire. 

4. The mud flap is missing from underneath the drivers side of the operators cab. 

The mirror and window glass of the drivers side door was covered in mud. 

5. Oil was leaking from the filter area of the steering oil tank and running down 

onto the right side of the engine compartment. 

6. Left rear brake temperature error indicator is coming on inside the operator's cab. 

7. The warning light located next to the digital display is taped over. 

8. The action warning light located on the dash board is staying on at all times. 

9. Excessive slack existed on the right side steering jack inside ball stud. This slack 

was visible when the truck was steered in either direction. 

10. The right side fender is damaged where the front head lights are located causing 

the lights to not face forwards completely. 

This truck was being operated in the Mill Seat Pit Area (Alma). Defects affecting 

safety shall be corrected before the equipment is used. 

45 FMSHRC Page 19
Standard 77.1606(c) was cited 48 times in two years at mine 4608930 (48 to the 

operator, 0 to a contractor). 

Petition at 44-45. 

For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably 

be expected to result in “lost workdays or restricted duty,” affecting one person. Id. at 44. The 

violation was not found to be significant and substantial. Id. Negligence was found to be 

“moderate.” Id. The citation was continued on January 18, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

Id. at 46. The citation was continued again on January 24, 2022, with the justification 

that: 

Repairs are still being conduct at this time. Repairs to items 1, 2, 4, 6, 7, 9 and 10 

have been completed. Repair work has been hampered by parts availability and 

limited personnel to complete the repairs. The mine operator has removed the 

equipment from service until these repairs can be completed. 

Id. at 47. 

Section 104 (b) Order No. 9563180 was issued on February 1, 2022, in association 

with Citation No. 9563146. 

The order read: 

A reasonable effort was not made by the mine operator to insure that all conditions 

were corrected on the 785C Caterpillar Haulage Truck Co. No. RT112. 1 of the 

conditions has not been corrected in a reasonable amount of time based on the 

conditions that existed. 

Standard 77.1606(c) was cited 59 times in two years at mine 4608930 (59 to the 

operator, 0 to a contractor). 

104(b) Order Addendum at 11. The order was terminated on February 2, 2022, with the 

justification that: 

The following actions have been taken to correct the following conditions: 

1. A new metal tube and O-rings have been installed. Steamed cleaned the area. 

2. Resealed the hydraulic tank, installed several hoses and O-rings. Steamed 

cleaned the area. 

3. Resealed wheel unit and coolant brake tube. Also installed new wheel group. 

Steamed cleaned the area. 

45 FMSHRC Page 20
4. Installed a new mud flap. Cleaned the mirror and window glass. 

5. Resealed the filter on the tank. Steamed cleaned the area. 

6. A new brake sensor has been installed. 

7. Repaired the wiring and downloaded the system. Also removed the tape. 

8. Repaired the wiring and downloaded the system. 

9. Installed a new ball stud. 

10. Repaired the fender by bending the fender back into place. 

Id. at 12. 

With Citation No. 9563146, we return to multiple defects on another vehicle, this 

time 10 (ten) defects on Caterpillar haulage truck. Among the 10 were four instances of 

excessive oil leaks. Several of the other defects were significant matters such as: the left 

rear brake temperature error indicator is coming on inside the operator's cab; the warning 

light located next to the digital display was taped over; the action warning light located on 

the dashboard was staying on at all times; and there was excessive slack present on the 

right side steering jack inside ball stud. It cannot be denied that these constituted a 

significant number of defects. The truck was being operated in the Mill Seat Pit area at the time 

of 104(a) citation’s issuance. With the passage of some 18 (eighteen) days and matters still not 

all corrected, the inspector understandably issued a (b) order. 

Further Analysis of the hidden (b) orders. 

Presented with the Secretary’s contention that the Commission has no business 

viewing section 104(b) orders where a citation is affirmed as issued and the proposed 

penalty is paid in full, the Court posits “Why stop there?” 

There is no logical reason or distinction for the Secretary not to expand its 104(b) 

order ban to also prevent any and all 104(a) citations from the Commission’s eyes post the 

filing of its civil penalty petition, blocking their review where a citation is paid in full with 

no changes to the inspector’s evaluation. If that doesn’t make sense, and the Court agrees 

it does not, there is similarly no rational basis to block review of (b) orders. Such orders 

are as much a part of the enforcement record as 104(a) citations. 

One might also ask, “what’s the harm?” The answer is that anyone reading the 

motion would be seriously misled about the enforcement history for these citations. On the 

face of the motion, one would not learn that the elevated enforcement step, issuance of 

section 104(b) orders, was required. This does a disservice to miners and the public. The 

Commission, in this Court’s view, should not be a party to the incomplete recounting. To 

allow it is analogous to issuing a book with the last chapter missing, but with no alert to 

the reader that there was more to the story. 

As discussed above, the 7 (seven) section 104(a) citations and the associated 104(b) 

orders each reflect important contextual information about these, now-admitted violations. In 

particular, the 104(b) orders each reflect that the mine operator took an undue period of time in 

45 FMSHRC Page 21
correcting the numerous and consequential violations, so much so that the issuing inspector 

understandably had no reasonable option but to issue the orders. It is noteworthy that, for 

several of the orders, the inspector noted that the equipment continued to be operated in its 

defective condition. It is perplexing that the Secretary, acting through MSHA would take this 

recalcitrant attitude and that the mine operator, through its cooperative legal counsel, would be 

the source for the relevant information. 

It is this Court’s position that once a matter is contested, it is before the Commission. 

That means all of it, not selected portions of enforcement actions ensuing after issuance of 

citations. Full stop. 

In its December 13, 2022, Order Certifying Case for Interlocutory Review, the Court 

noted the importance of (b) orders: 

The structure of the Mine Act underscores the importance of 104(b) orders. As the Court 

noted in its June 22, 2022 Order in Perry County Resources, 44 FMSHRC 501 (June 2022), 

The Court does not believe that the fact a violation is paid in full, with no 

modifications made to the issuing inspector’s evaluation, is the end of the matter. 

The principle behind this view is very basic, in carrying out its review 

responsibilities under 30 U.S.C. §820(k), the Court is obligated to be fully informed 

about the circumstances surrounding the issuance of a citation or an order. [The 

Citation in issue] is part of this docket, but the documentary record concerning this 

admitted violation is incomplete. This is because a section 104(b) order was issued 

by the inspector in connection with that Citation . . . The Secretary may not decide 

to selectively secrete such information from the Court, the public and especially 

from the miners it is charged to protect. From this Court’s perspective, such a stance 

is inimical to the spirit of the Mine Act. 

 

A Section 104(b) order is an important feature of the Mine Act. Section 104(b) of 

the Mine Act states: 

If, upon any follow-up inspection of a coal or other mine, an authorized 

representative of the Secretary finds (1) that a violation described in a citation 

issued pursuant to subsection (a) has not been totally abated within the period of 

time as originally fixed therein ... and (2) that the period of time for abatement 

should not be further extended, he shall determine the extent of the area affected by 

the violation and shall promptly issue an order requiring the operator of such mine 

or his agent to immediately cause all persons, except those persons referred to in 

subsection (c), to be withdrawn from, and to be prohibited from entering, such area 

 

45 FMSHRC Page 22
until an authorized representative of the Secretary determines that such violation 

has been abated. 

 

30 U.S.C. § 814(b). 

 

As the Commission has noted, such orders have significance in their own 

right. It has observed that: 

First, section 105(a), by its terms, does not distinguish between the different 

types of orders that can be issued under section 104. Absent any language in the 

statute suggesting that the Secretary cannot propose a penalty in connection with a 

section 104(b) order, we will not interpret the phrase “order under section 104” in 

section 105(a) to exclude section 104(b) orders. 

 

Secondly, contrary to her claim, the Secretary may indeed assess a separate 

penalty for the failure to abate a violation. Section 105(b)(1)(A) of the Mine Act 

provides in pertinent 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) by reason of such 

failure and that the operator has 30 days within which to notify the Secretary that 

he wishes to contest the Secretary’s notification of the proposed assessment of 

penalty.... 30 U.S.C. § 815(b)(1)(A). Consequently, section 110(b) of the Act and 

MSHA’s regulations authorize the Secretary to assess steep daily penalties. See 30 

U.S.C. § 820(b); 30 C.F.R. § 100.5(c) (“Any operator who fails to correct a 

violation for which a citation has been issued under section 104(a) of the Mine Act 

within the period permitted for its correction may be assessed a civil penalty of not 

more than $6,500 for each day during which such failure or violation continues.”). 

 

Moreover, the fact that a withdrawal order has been issued increases the 

likelihood that such a penalty will be assessed. The legislative history of the Mine 

Act states that under section 105(b)(1)(A), like under section 105(a): 

 

[T]he Secretary is to similarly notify operators and miners’ representatives

when he believes that an operator has failed to abate a violation within the specified 

abatement period. In most cases, a failure to abate closure order will have been 

issued pursuant to Section [104(b)]. The notice of proposed penalty to operators 

in such cases shall state that a [104(b)] order has been issued and the penalty

provided by Section [110(b)] of the Act shall also be proposed. This penalty shall 

be proposed in addition to the penalty for the underlying violation required by 

Section [110(a)] of the Act. S. Rep. No. 95-181, at 34-35 (1977), reprinted in Senate 

Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal 

Mine Safety and Health Act of 1977, at 622-23 (1978). 

 

45 FMSHRC Page 23
In addition, even if no separate penalty for failure to abate a violation is assessed, 

the failure to abate allegation upon which a section 104(b) withdrawal order rests, 

if established, increases the amount of the penalty that is ultimately assessed for the 

underlying violation. As Judge Zielinski recognized in his first decision, ‘the 

demonstrated good faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation is one of the factors that the Commission 

must consider in fixing the amount of a civil penalty.’ 28 FMSHRC at 413 (quoting 

section 110(i) of the Mine Act, 30 U.S.C. § 820(i)). Thus, the sanction for a failure 

to abate is not only a withdrawal order, but, likely, a higher penalty when the 

Secretary eventually assesses a penalty for the original violative condition that 

allegedly was not abated in a timely fashion. See NAACO Mining Co., 9 FMSHRC 

1541, 1545 (Sept. 1987) (‘Under sections 104(b) and 110(b), if the operator does 

not correct the violation within the prescribed period, the more severe sanction of 

a withdrawal order is required, and a greater civil penalty is assessed.’). 

 

UMWA v. Maple Creek Mining, 29 FMSHRC 583, 592-594 (July 2007) (emphases 

added). 

 

Per the above decision, the Commission recognized the independent importance of 

104(b) orders may be the subject of a penalty in their own right, citing section 

104(b)(1)(A). The legislative history, as also cited by the Commission, makes this 

plain: “[t]he notice of proposed penalty to operators in such cases shall state that a 

[104(b)] order has been issued and the penalty provided by Section [110(b)] of 

the Act shall also be proposed. This penalty shall be proposed in addition to the

penalty for the underlying violation required by Section [110(a)] of the Act.” Id. at 

593. (emphases in original Order). 

 

Though no additional reasons are needed to require disclosure of the (b) order in 

this matter, the record does not reveal if the Secretary met his obligation to notify 

the miners’ representatives when, as here, he believed that an operator has failed to 

abate a violation within the specified abatement period. 

 

This Court is well-aware that its review of settlements is presently cabined within 

the terms of the Commission’s decisions in The American Coal Co., 40 FMSHRC 

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

2018) and that under those decisions the Court’s review role has become 

statistically perfunctory. However, there is still an obligation and duty to examine 

each citation and order within a submitted docket, even if the citation is not 

contested and paid as originally assessed. The responsibility to ensure that there is

a complete record is separate and apart from, and not mutually exclusive to, the 

review of violations that have settled, whether such settlements are for the full 

amount proposed or some lesser amount. 

 

Frankly, the Court is at a loss to understand why the Secretary of Labor is not in 

full support of providing the full record of the enforcement actions taken in 

connection with an admitted 104(a) citation. In this matter that involves hiding the 

45 FMSHRC Page 24
inspector’s issuance of a 104(b) order in connection with that citation. The apparent 

decision to secrete such information from the Court, the public and especially from 

the miners it is charged to protect is perplexing and at odds with the admonition 

from several federal courts invoking Justice Louis D. Brandeis’ remark that 

“Sunlight is said to be the best of disinfectants.” See, for example, Argus v. U.S. 

Dept Agriculture, 740 F.3d 1172 (8th Cir. 2014), wherein Argus invoked the federal 

law meant to bring disclosure sunlight to the government bureaucracy, in its request 

to see spending information from the U.S. Department of Agriculture under the 

Freedom of Information Act, 5 U.S.C. § 552. To the same effect as the Secretary 

has done here, the Department of Agriculture, with little explanation, refused 

disclosure. Reversing the lower court’s determination that the information sought 

was exempt from disclosure, the Eighth Circuit took note of Justice Louis D. 

Brandeis’ remark about the disinfecting benefit of sunlight. Id. at 1173, citing Other 

People’s Money 92 (1914). 

Id. at 503-506 (footnotes omitted). 

Analysis for the settlement matters not involving the Secretary’s failure to supply the 

Section 104(b) orders 

Two citations in the motion involve penalty reductions with modifications to the 

issuing inspector’s evaluations. They are discussed here. 

Citation No. 9563144 Penalty Reduction of 80%

Citation No. 9563144 was issued as a 104(a) citation on January 11, 2022, for a 

violation of 30 C.F.R. § 77.1001. Titled “Stripping; loose material,” this standard specifies that 

“Loose hazardous material shall be stripped for a safe distance from the top of pit or highwalls, 

and the loose unconsolidated material shall be sloped to the angle of repose, or barriers, baffle 

boards, screens, or other devices be provided that afford equivalent protection.” 30 C.F.R. 

§ 77.1001. 

 The citation read: 

The spoilbank located in the Grapevine North Pit Area (Alma) was not stripped for 

a safe distance from the top of the pit. The spoil bank was not sloped to the angle 

of repose. The toe of the spoilbank has been dug out. The spoilbank is not at the 

angle of repose in the pit and is 30 to 35 feet high. A coal loader was removing coal 

along the base of the spoilbank. The area along the toe of the spoil bank was not 

bermed off to prevent unauthorized access. 

This condition exposes the person working underneath the spoilbank to the hazards 

that existed. It is reasoanbly likey of this condition continues to exist an accident 

will occur. 

45 FMSHRC Page 25
Loose hazardous material shall be stripped for a safe distance from the top of pit or 

highwalls, and the loose unconsolidated material shall be sloped to the angle of 

repose, or barriers, baffle boards, screens, or other devices be provided that afford 

equivalent protection. 

Standard 77.1001 was cited 1 time in two years at mine 4608930 (1 to the operator, 

0 to a contractor). 

 Petition at 40. 

 For gravity, likelihood of injury was found to be “reasonably likely,” and injury could 

reasonably be expected to result in “lost workdays or restricted duty,” affecting one person. Id. 

The violation was found to be significant and substantial. Id. Negligence was found to be 

“moderate.” Id. The citation was terminated on January 13, 2022, with the justification that 

“[m]aterial has been dumped back into the pit to correct the hazardous spoilbank. The spoilbank 

is now at the angle of repose.” Id. at 41. 

The Secretary moves to modify the citation, reducing likelihood to “unlikely” and 

removing the significant and substantial designation, offering the following in support: 

Citation #9563144 will be modified to “unlikely” and “non S&S” gravity, with a 

reduction in penalty per 30 CFR part 100.3. The Respondent contends that the 

gravity was over-evaluated and should not have been issued as “reasonably likely” 

and “S&S”. Respondent would argue at hearing that the spoilbank was compacted 

in the cited area because of a previous haulroad overhead. Respondent further 

contends that the highwall did not show any indications of adverse conditions or 

failure at the present time and it was not currently raining. 

The Secretary has exercised his discretion to modify the significant and substantial 

designation associated with citation #9563144. The Secretary may exercise that 

discretion as part of a settlement. Am. Aggregates of Michigan, Inc., 42 FMSHRC 

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

879-80 (June 1996)). The Secretary recognizes that the ALJ might find merit in the 

facts and arguments presented by the Respondent and in light of the contested 

evidence and given the uncertainties of litigation, the Secretary has agreed to 

modify the gravity from “reasonably likely” to “unlikely” and deleting the “S&S” 

finding, and reduce the penalty for citation #9563144 from $1,471 to $296, and the 

Respondent has agreed to pay the reduced penalty. 

Motion at 4. 

 For Citation No. 9563144, involving a now-admitted violation of 30 C.F.R. § 77.1001 

the Secretary’s Motion seeks to modify the likelihood of the injury from the inspector’s 

designation of ‘reasonably likely’ to ‘unlikely.’ The standard requires that loose hazardous 

material shall be stripped for a safe distance from the top of pit or highwalls, and the loose 

unconsolidated material shall be sloped to the angle of repose. Neither of these methods of 

compliance were present. To the contrary, and not contested, the inspector found that the spoil 

45 FMSHRC Page 26
bank located in the Grapevine North Pit Area was not stripped for a safe distance from the top 

of the pit, nor was it sloped to the angle of repose. Aggravating matters, the toe of the spoil bank 

has been dug out and was not bermed off to prevent unauthorized access. Further, a coal loader 

was removing coal along the base of the spoilbank. 

Addressing the basis for the unlikely designation, the Respondent contends that the spoil 

bank was compacted in the cited area because of a previous haul road overhead and that the 

highwall did not show any indications of adverse conditions or failure at the present time and it 

was not currently raining. None of these claimed justifications support the unlikely designation. 

Instead, they are of the alternative safety conditions which the federal courts of appeals have 

rejected when analyzing the significant and substantial designation.3 This is especially the case 

for the claim that adverse conditions or failure at the present time and that it was not currently 

raining. The Commission has made it clear that analysis of the likelihood is measured by 

continued normal mining operations. 

In the face of all this, the Secretary has agreed to change the inspector’s evaluation of the 

gravity to unlikely, and by that change, the violation becomes redesignated as non-S&S. No 

3 Federal case law is clear that redundant safety measures are not to be considered in 

evaluating a hazard. For example, in Knox Creek Coal, 811 F.3d 148 (4th Cir. 2016), that Court 

observed: 

“[i]f mine operators could avoid S & S liability—which is the primary sanction they 

fear under the Mine Act—by complying with redundant safety standards, operators 

could pick and choose the standards with which they wished to comply.”...Such a 

policy would make such standards “mandatory” in name only. It is therefore 

unsurprising that other appellate courts have concluded that ‘[b]ecause redundant 

safety measures have nothing to do with the violation, they are irrelevant to the [S 

& S] inquiry.’ Cumberland Coal, 717 F.3d at 1029; see also Buck Creek, 52 F.3d 

at 136. 

Knox Creek Coal, 811 F.3d 148, 162 (4th Cir. 2016). 

Regarding this issue, in Consolidation Coal, 895 F.3d 113, (D.C. Cir. 2018), the D.C. 

Circuit, referring to its decision in Cumberland Coal Resources, LP v. Federal Mine Safety & 

Health Review Commission, 717 F.3d 1020 (D.C. Cir. 2013), noted that it: 

interpreted the statutory text to focus on the “nature” of “the violation” rather than 

any surrounding circumstances. More to the point, the court held that 

“consideration 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).” Id. at 1028–1029. 

Id. at 118-119. 

45 FMSHRC Page 27
word whether the Secretary sought input from the issuing inspector about the legitimacy of these 

changes. As for the S&S change to non-S&S, it is the Secretary’s position that it is justified 

simply because he can do so, with no rationale needed, as if it can be made apart from any 

gravity modification. The Court does not agree. In making the claim that the Secretary has 

independent discretion to remove the inspector’s ‘significant and substantial’ designation, the 

Motion asserts such discretion, citing inapplicable Commission decisions. This is incorrect, the 

removal of the ‘significant and substantial’ designation comes about only by virtue of the 

redesignation of the likelihood of occurrence, not apart from that. 

To support the change that the injury is unlikely to occur, the Respondent asserts that the 

spoil bank was compacted in the cited area because of a previous haul road overhead and that the 

highwall did not show any indications of adverse conditions or failure at the present time. With 

no embarrassment, Respondent also adds that it was not currently raining. None of the assertions 

put forward by the Respondent speak to likelihood. The standard does not offer passes when no 

adverse conditions or failure exist at the present time, nor is there a ‘no current rain’ exception. 

The Secretary has overlooked that the test for evaluation is to assume ‘continued normal mining 

operations.’ U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). 

However, given the Commission’s test for a judge’s review of settlement motions and the 

Court’s understanding of the application of that test, this motion, as with virtually all such 

motions, passes muster. Therefore, the Court leaves it to the Commission if it determines that the 

Court misapprehends the review test in this instance. 

Citation No. 9563152 Penalty Reduction of 80% 

 Citation No. 9563152 was issued on January 19, 2022, as a 104(a) citation, for a 

violation of 30 C.F.R. § 77.1004(b). Titled “Ground control; inspection and maintenance; 

general,” this standard specifies that “[o]verhanging highwalls and banks shall be taken down 

and other unsafe ground conditions shall be corrected promptly, or the area shall be posted.” 30 

C.F.R. § 77.1004(b). 

The citation read: 

The mine operator drilled 90 foot pre-line holes and blasted these holes in the 

Grapevine North Pit Area. The mine operator then stepped out away from the preline a considerable distance and drilled a 30 foot break down shot. After the 

breakdown shot was removed this created another highwall that was in front of the 

pre-line that was already shot creating a false highwall. The mine operator was in 

the process of drilling another 30 foot breakdown next to the area that the false 

highwall existed. This condition creates an unsafe ground condition. Overhanging 

highwalls and banks shall be taken down and other unsafe ground conditions shall 

 

45 FMSHRC Page 28
be corrected promptly, or the area shall be posted. It is reasonably likely if these 

conditions continue to exist an accident will occur. 

 Petition at 69 (emphasis added). 

For gravity, likelihood of injury was found to be “reasonably likely,” and injury could 

reasonably be expected to be “fatal,” affecting one person. Id. The violation was found to be 

significant and substantial. Id. Negligence was found to be “moderate.” Id. The citation was 

continued on January 24, 2022, with the justification that “A shot has been put off and that 

material has been ramped back up towards the upper bench. Another shot is being blasted 

today to have more material to complete[] the ramp to be able to safely access the upper bench to 

start drilling. More time is needed to construct the ramp, drill the shot and blast.” Id. at 70. The 

citation was terminated on February 1, 2022, with the justification that “The highwall has been 

scotched by pushing material back up along the highwall. A road has also been completed to 

access the upper bench. Drilling has already commenced on the upper bench to shoot back to the 

existing pre-lined highwall. The mine operator will not remove the material that is scotching the 

highwall until the upper bench has been shot back to the existing pre-lined highwall.” Id. at 71. 

The Secretary moves to modify the citation, reducing gravity likelihood to “unlikely” 

and removing the significant and substantial designation, offering the following in support: 

Citation #9563152 will be modified to “unlikely” and “non S&S” gravity, with a 

reduction in penalty per 30 CFR part 100.3. The Respondent contends that the 

gravity was over-evaluated and should not have been issued as “reasonably likely” 

and “S&S”. Respondent would argue at hearing that the top safety bench measured 

in excess of 60 feet. The highwall only measured 30 feet, so therefore it is highly 

unlikely that a highwall failure would occur from this ground control issue. The 

Secretary has exercised his discretion to modify the significant and substantial 

designation associated with citation #9563152. The Secretary may exercise that 

discretion as part of a settlement. Am. Aggregates of Michigan, Inc., 42 FMSHRC 

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

879-80 (June 1996)). The Secretary recognizes that the ALJ might find merit in the 

facts and arguments presented by the Respondent and in light of the contested 

evidence and given the uncertainties of litigation, the Secretary has agreed to 

modify the gravity from “reasonably likely” to “unlikely” and deleting the “S&S” 

finding, and reduce the penalty for citation #9563152 from $4,884 to $987, and the 

Respondent has agreed to pay the reduced penalty. 

Motion at 4-5. 

 Here, for this second ground control hazard, the Respondent asserts only that the top 

safety bench measured in excess of 60 feet while the highwall measured 30 feet. From this, the 

Respondent contends that it is highly unlikely that a highwall failure would occur from the 

admitted ground control issue. There is no explanation how those two distances correlate to 

support the assertion, and the Court, under current Commission decisional law, is precluded 

from making reasonable inquiries about this. Further, neither the Respondent nor the Secretary 

45 FMSHRC Page 29
address the inspector’s remark that after the breakdown shot was removed that act created 

another highwall that was in front of the pre-line that was already shot, creating a false 

highwall, nor do they speak to the inspector’s uncontested statement that the mine operator was 

in the process of drilling another 30-foot breakdown next to the area that the false highwall 

existed. 

Of a severity on a par with the other ground support violation just described, this time 

the now-admitted violation involved the requirement for overhanging highwalls and banks to be 

taken down and other unsafe ground conditions shall be corrected promptly, or the area shall be 

posted. None of those prophylactic steps were taken. 

The Secretary does not inform whether he consulted with the issuing inspector about the 

operator’s brief assertion to support the unlikely characterization based on the claim that there 

was a top safety bench in excess of 60 feet and that the highwall was only 30 feet. The inspector 

of course is the only person for the Secretary who had a “eyes on” to view the situation. Further, 

to the Court, a 30-foot high wall is not negligible. But, that is where things are – the Court is not 

permitted to make inquiries about these issues, and so, absent intervention by the Commission, 

the motion is to be approved. 

These serious questions by the Court do not operate to reject the Motion as the 

Commission’s test for approval of such motions is satisfied. However, given the Commission’s 

test for a judge’s review of settlement motions and the Court’s understanding of the application 

of that test, this motion, as with virtually all such motions, passes muster. Therefore, the Court 

again leaves it to the Commission if it determines that the Court misapprehends the review test. 

Reasonable Inquiry is not Permitted 

Despite the Court’s analyses and expressed concerns for Citation Nos. 9563144 and 

9563152, 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 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. 

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. 

45 FMSHRC Page 30
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. 

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). 

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 31
As the motion meets the Commission’s standard for approving settlement motions and as 

the Court is duty-bound to faithfully apply the Commission’s present decisional holdings 

regarding review of settlement motions according to the way the Commission has interpreted its 

review responsibilities under the unique review provision set forth in section 110(k) of the Mine 

Act and, applying those holdings, the Court determines that this settlement, as with all settlement 

motions presented to this Court post-AmCoal, also meets the Commission’s review criteria and 

therefore the motion is to be approved as appropriate. 

Typically found in the Secretary’s motions for approval of settlement is language along 

the lines that the parties seek to have the Court accept that it acknowledges and accepts the 

explanation for the agreed upon settlement contained in the parties’ settlement motion and 

amendments. In this instance, the Secretary includes as proposed language that the Court has 

“considered the representations and documentation submitted, f[ound] that the assessment is 

reasonable and . . . conclude[d] that the proposed settlement is appropriate under the criteria set 

forth in section 110(i) of the Act” Draft Order at 3. The Court cannot subscribe to such 

language.5 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). 

The Court has considered the motion in the context of comparing it with the 

Commission’s AmCoal decision and finds that it meets that decision’s standard of review. 

Accordingly, on that basis only, the motion to approve settlement is GRANTED, the citations 

contained in this docket are MODIFIED as set forth above and Respondent Appalachian 

Resource West Virginia, LLC, is ORDERED to pay the Secretary of Labor the sum of 

$23,365.00 within 30 days of this decision.6

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

5 Nor does the Court endorse, or agree with, the assertions commonly found in the 

Secretary’s motions for approval of settlements in which the Secretary claims that a final 

resolution of this matter in which all violations are resolved is of significant enforcement value 

to the Secretary. Motion at 3 (emphasis added). Such boilerplate claims are almost always 

hollow, in view of the actual modifications and penalty reductions that makeup these motions. 

6 It is preferred that penalties 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 important to include Docket and A.C. Numbers with the payment.

45 FMSHRC Page 32
Distribution: 

K. Brad Oakley, Esq., Jackson Kelly PLLC, 100 W. Main Street, Suite 700 

Lexington, KY 40507 kboakley@jacksonkelly.com 

Emily Toler Scott, Esq., Counsel for Appellate Litigation, Office of the Solicitor 

Division of Mine Safety & Health, 201 12th Street South, Suite 401, Arlington, VA 22202 

scott.emily.t@dol.gov 

David C. Trent, Conference & Litigation Representative, U.S. Department of Labor, MSHA 

4499 Appalachian Highway, Pineville WV 24874 Trent.david@dol.gov 

45 FMSHRC Page 33
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 

January 11, 2023 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2022-04281

AC No. 46-08930-551112 

Mine: Grapevine South Surface Mine 

 

DECISION APPROVING SETTLEMENT2

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 Secretary has filed a 

Motion to Approve Settlement for the citations and order involved in this matter.3 The parties 

move to modify the citations and order, as stated below. The penalty would be reduced 

accordingly, from the original assessed amount of $28,246.00 to $20,070.00. 

All citations were regularly assessed. Citation Nos. 9563155, 9563156, 9563158, 

9563159, 9563160, 9563161, 9563171, 9563172, 9563173, 9563174, 9563175, 9563176, 

9563183, 9563188, and 9563189 were issued as 104(a) citations, with a 10% penalty reduction 

for good faith. The one exception to the good faith reductions was Section 104(a) Citation No. 

9563157, which was issued on January 18, 2022. Thirteen (13) days later, the cited conditions 

not having been corrected, the inspector issued a 104(b) order. The proposed penalty for that 

citation was issued without the 10% penalty reduction for “good faith” abatement efforts. 

1 This docket was created when 16 citations (including one 104(a) citation with an 

associated 104(b) order) from WEVA 2022-0301 were reallocated into this new docket. Order 

for Docket Reallocation, June 29, 2022. 

2 This Decision Approving Settlement is being issued simultaneously with the Court’s 

Decision Approving Settlement in WEVA 2022-0301 and the Court’s Decision regarding the 

Secretary’s December 20, 2022 Motion to Strike and to Approve Settlement for both dockets. 

3 In spite of the Chief Judge’s Order for Docket Reallocation, the Secretary elected, in 

effect, to re-consolidate the dockets into a single Motion, though it was filed on eCMS for each 

docket. The Court, consistent with the Reallocation Order, continues to treat the dockets 

separately. 

45 FMSHRC Page 34
Citation MSHA’s 

Proposed 

Penalty

Settlement 

Amount

Other modifications to citation/order

9563155 $407.00 $407.00 Violation of 30 C.F.R. § 77.205(a), safe 

means of access not provided and 

maintained on 993K Caterpillar FrontEnd Loader Co. No. L465. 

Sustained as Issued- No penalty 

reduction 

9563156 $661.00 $661.00 Violation of 30 C.F.R. § 77.404(a), 

993K Caterpillar Front-End Loader Co. 

No. L465 not maintained in safe 

operating condition. 

Sustained as Issued- No penalty 

reduction 

9563157 

(Associated 

104(b) order No. 

9563179) 

$4,624.00 $4,624.00 Violation of 30 C.F.R. § 77.1606(c), 

defects affecting safety existed on 785C 

Caterpillar Haulage Truck Co. No. 

RT263. Sustained as Issued- No penalty 

reduction 

9563158 $296.00 $296.00 Violation of 30 C.F.R. § 77.1605(k), 

rocks located along elevated roadway 

with no berms or guards to prevent 

equipment or vehicle from traveling into 

sump. Sustained as Issued- No penalty 

reduction 

9563159 $252.00 $252.00 Violation of 30 C.F.R. § 77.1605(b), 

park brake on white Dodge Blasting 

Truck not functioning properly when 

tested. 

Sustained as Issued- No penalty 

reduction 

9563160 $252.00 $252.00 Violation of 30 C.F.R. § 77.1606(a), 

failure to record and report defects 

affecting safety after pre-operational 

examination of white Dodge Blasting 

Truck. 

Sustained as Issued- No penalty 

reduction 

9563161 $4,161.00 $1,869.00 Violation of 30 C.F.R. § 77.1303(h), 

certified blaster did not sure all persons 

were cleared from blast area or 

sheltered. Modify the negligence from 

“moderate” to “low.” Penalty reduction 

of 55%. 

9563171 $1,471.00 $1,471.00 Violation of 30 C.F.R. § 77.1001, loose 

hazardous material not stripped for a 

45 FMSHRC Page 35
safe distance along the highwall in the 

Sustained as Issued- No penalty 

reduction 

9563172 $1,156.00 $1,156.00 Violation of 30 C.F.R. § 77.1606(c), 

defects affecting safety in D11R 

Caterpillar Dozer Co. No. DZ040. 

Sustained as Issued- No penalty 

reduction 

9563173 $407.00 $407.00 Violation of 30 C.F.R. § 77.205(a), safe 

means of access not provided and 

maintained on 785D Caterpillar Haulage 

Truck Co. NO. MSY113. 

Sustained as Issued-No penalty 

reduction 

9563174 $1,156.00 $1,156.00 Violation of 30 C.F.R. § 77.1606(c), 

defects affecting safety on 785C 

Caterpillar Haulage Truck Co. No. 

RT001. 

Sustained as Issued- No penalty 

reduction 

9563175 $4,884.00 $4,884.00 Violation of 30 C.F.R. § 77.1000, failure 

to follow established ground control 

plan. 

Sustained as Issued- No penalty 

reduction 

9563176 $296.00 $296.00 Violation of 30 C.F.R. § 77.1713(c), 

failure to record nature and location of 

hazardous conditions after examination. 

Sustained as Issued- No penalty 

reduction 

9563183 $442.00 $442.00 Violation of 30 C.F.R. § 77.1606(c), 

damage to driver’s seat belt on 

Freightliner Mechanic Truck Co. No. 

MT-665. 

Sustained as Issued- No penalty 

reduction 

9563188 $4,507.00 $910.00 Violation of 30 C.F.R. § 48.26, 

independent contract mechanics 

working on the property not provided 

Experienced Miner Training. Modify the 

gravity from “reasonably likely” to 

“unlikely” and from “S&S” to “nonS&S” with a penalty reduction in 

accordance with 30 C.F.R. part 100.3. 

Penalty reduction of 80%. 

9563189 $3,274.00 $987.00 Violation of 30 C.F.R. § 77.1606(c), 

defects affecting safety on Volvo Fuel 

45 FMSHRC Page 36
and Oil Service Truck Co. No. 900. 

Modify the gravity from “fatal” to “lost 

workdays or restricted duty” with a 

penalty reduction in accordance with 30 

C.F.R. part 100.3. 

Penalty reduction of 70% 

TOTAL $28,246.00 $20,070.00 Total penalty reduction of 29% 

Citation No. 9563157 and Associated 104(b) Order No. 9563179 

Citation No. 9563157 was issued on January 18, 2022, for a violation of 30 C.F.R. 

§ 77.1606(c). Titled “Loading and haulage equipment; inspection and maintenance,” this 

standard specifies that “[e]quipment defects affecting safety shall be corrected before the 

equipment is used.” 30 C.F.R. § 77.1606(c). 

The citation read: 

The following defects affecting safety existed on the 785C Caterpillar Haulage 

Truck co. No. RT263: 

1. The left rear strut is bottoming out. 

2. The bed gusset located near the left side of the bed hinge pin area is cracked. 

3. The bed gusset located near the right side of the bed hinge pin area is cracked. 

4. Excessive slack existed from the right side top hoist cylinder. This is where the 

cylinder connects to the truck bed. 

5. An excessive antifreeze leak existed from the left side are of the engine. Steady 

streams of antifreeze could been seen running down from the left side. 

6. The left side front strut is bottoming out. 

7. The right front strut is leaking oil. 

8. A wire was disconnected front he right rear brake canister over stroke switch. 

9. The drivers side window would not roll up when tested. 

10. Drivers side door seal was damaged and paper towels were stuffed in areas to 

seal the door in the back corner. Also the door striker is taped up to keep the door 

closed completely. 

This truck was being operated in the Grapevine North Pit Area. Defects affecting 

safety shall be correct before the equipment is used. 

Standard 77.1606(c) was cited 53 times in two years at mine 4608930 (53 to the 

operator, 0 to a contractor). 

Pet. for a Civil Penalty at 66-67. 

For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably 

be expected to result in “lost workdays or restricted duty,” affecting one person. Id. at 66. The 

violation was not found to be significant and substantial. Id. Negligence was found to be “high.” 

Id. The citation was continued on January 24, 2022, when 

45 FMSHRC Page 37
Repair work has been hampered by limited personnel to complete the repairs. The 

mine operator has removed the equipment from service until these repairs can be 

completed. 

Id. at 68. 

The Secretary moves to keep the citation as issued, with no reduction in penalty. Mot. to 

Approve Settlement at 3. 

Order No. 9563179 was issued on February 1, 2022, as a 104(b) order in connection with 

Citation No. 9563157. The Secretary refused to supply the Court with the (b) order. The mine 

operator, through its counsel, provided the document. The Court has entered the document in 

eCMS for this docket. The order read: 

A reasonable effort was not made by the mine operator to insure that all conditions 

were corrected on the 785C Caterpillar Haulage Truck Co. No. RT263. 8 conditions 

have not been corrected in a reasonable amount of time based on the conditions that 

existed. 

Standard 77.1606(c) was cited 58 times in two years at mine 4608930 (58 to the 

operator, 0 to a contractor). 

104(b) Orders Addendum at 9 (emphasis added). 

The order was terminated on February 10, 2022, when “[a]ll defects affecting safety, on 

the 785C Caterpillar Haulage Truck, Co. No. RT263, that is operated on the Grapevine North 

Pit, have been corrected by a qualified person.” Id. at 10. 

Analysis of Section 104(a) Citation No. 9563157 with its associated 104(b) Order No. 

9563179 

Citation No. 9563157 has settled for the full amount proposed under the regular 

assessment calculation. The 10% reduction for good faith attempt to achieve rapid compliance 

was denied. This is not surprising as the Respondent failed to achieve compliance for the 

violation only after a section 104(b) order was issued 13 days after the 104(a) citation was 

issued. The Secretary refused to provide the Court with the 104(b) order, even though it is 

undeniably an important and vital part of the enforcement record for the violation. Ironically, 

the mine operator’s attorney stepped forward and provided the Court with the (b) order. 

 The Citation reflects both the significant nature and extent of the transgressions for the 

defects affecting safety subsection cited at 30 C.F.R. § 77.1606(c). Ten independent defects, all 

of them conceded, were involved. Worse, and underscoring the importance of the associated (b) 

order, thirteen days later eight (8) of the defects remained uncorrected. This great delay in 

abating the many defects is an important part of the story associated with this violation, and 

therefore while the Secretary’s hiding it is inappropriate in all instances, it is particularly so in 

this instance. When a matter is before the Commission, as it is in this instance by the filing 

45 FMSHRC Page 38
of a petition for the assessment of a civil penalty, it is before the Commission. All of it. Not 

just those parts the Secretary unilaterally wishes to reveal. 

 

As the Commission has noted: 

[t]he purpose of section 104(b) is to spur swift abatement of existing violations 

and compel operator compliance with the Act. ... The issuance of an order for 

a failure to abate promotes compliance by imposing a consequence on an 

operator that refuses to comply with the Mine Act. Moreover, penalizing an 

operator's refusal to comply with the Act in some instances, while allowing its 

refusal in others, falls short of fulfilling the Act's purpose. Thus, the 

Secretary's broad interpretation is consistent with the remedial nature of the 

Act, its structure, and its progressive enforcement scheme of increasingly 

severe sanctions that are applied when an operator incurs repeated violations 

kijuland refuses to comply. See 30 U.S.C. § 814(d), (e); Pattison Sand Co. v. 

FMSHRC, 688 F.3d 507, 513 (8th Cir. 2012). 

 

Hopkins County Coal, 38 FMSHRC 1317, 1335-1336 (June 2016) (emphasis added). 

Presented with the Secretary’s contention that the Commission has no business 

viewing section 104(b) orders where a citation is affirmed as issued and the proposed 

penalty is paid in full, the Court posits “Why stop there?” 

There is no logical reason or distinction for the Secretary not to expand its 104(b) 

order ban to also prevent any and all 104(a) citations from the Commission’s eyes post the 

filing of its civil penalty petition, blocking their review where a citation is paid in full with 

no changes to the inspector’s evaluation. If that doesn’t make sense, and the Court agrees 

it does not, there is similarly no rational basis to block review of (b) orders. Such orders 

are as much a part of the enforcement record as 104(a) citations. 

One might also ask, “what’s the harm?” The answer is that anyone reading the 

motion would be seriously misled about the enforcement history for these citations. On the 

face of the motion, one would not learn that the elevated enforcement step, issuance of 

section 104(b) orders, was required. This does a disservice to miners and the public. The 

Commission, in this Court’s view, should not be a party to the incomplete recounting. To 

allow it is analogous to issuing a book with the last chapter missing, but with no alert to 

the reader that there was more to the story. 

It is perplexing that the Secretary, acting through MSHA would take this recalcitrant 

attitude and that the mine operator, through its cooperative legal counsel, would be the source 

for the relevant information. 

In its December 13, 2022, Order Certifying Case for Interlocutory Review, the Court 

noted the importance of (b) orders: 

45 FMSHRC Page 39
The structure of the Mine Act underscores the importance of 104(b) orders. As the Court 

noted in its June 22, 2022 Order in Perry County Resources, 44 FMSHRC 501 (June 2022), 

The Court does not believe that the fact a violation is paid in full, with no 

modifications made to the issuing inspector’s evaluation, is the end of the matter. 

The principle behind this view is very basic, in carrying out its review 

responsibilities under 30 U.S.C. § 820(k), the Court is obligated to be fully 

informed about the circumstances surrounding the issuance of a citation or an order. 

[The Citation in issue] is part of this docket, but the documentary record concerning 

this admitted violation is incomplete. This is because a section 104(b) order was 

issued by the inspector in connection with that Citation . . . The Secretary may not 

decide to selectively secrete such information from the Court, the public and 

especially from the miners it is charged to protect. From this Court’s perspective, 

such a stance is inimical to the spirit of the Mine Act. 

 

A Section 104(b) order is an important feature of the Mine Act. Section 104(b) of 

the Mine Act states: 

If, upon any follow-up inspection of a coal or other mine, an authorized 

representative of the Secretary finds (1) that a violation described in a citation 

issued pursuant to subsection (a) has not been totally abated within the period of 

time as originally fixed therein ... and (2) that the period of time for abatement 

should not be further extended, he shall determine the extent of the area affected by 

the violation and shall promptly issue an order requiring the operator of such mine 

or his agent to immediately cause all persons, except those persons referred to in 

subsection (c), to be withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines that such violation 

has been abated. 

 

30 U.S.C. § 814(b). 

 

As the Commission has noted, such orders have significance in their own 

right. It has observed that: 

First, section 105(a), by its terms, does not distinguish between the different 

types of orders that can be issued under section 104. Absent any language in the 

statute suggesting that the Secretary cannot propose a penalty in connection with a 

section 104(b) order, we will not interpret the phrase “order under section 104” in 

section 105(a) to exclude section 104(b) orders. 

 

Secondly, contrary to her claim, the Secretary may indeed assess a separate 

penalty for the failure to abate a violation. Section 105(b)(1)(A) of the Mine Act 

provides in pertinent 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 

45 FMSHRC Page 40
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) by reason of such 

failure and that the operator has 30 days within which to notify the Secretary that 

he wishes to contest the Secretary’s notification of the proposed assessment of 

penalty.... 30 U.S.C. § 815(b)(1)(A). Consequently, section 110(b) of the Act and 

MSHA’s regulations authorize the Secretary to assess steep daily penalties. See 30 

U.S.C. § 820(b); 30 C.F.R. § 100.5(c) (“Any operator who fails to correct a 

violation for which a citation has been issued under section 104(a) of the Mine Act 

within the period permitted for its correction may be assessed a civil penalty of not 

more than $6,500 for each day during which such failure or violation continues.”). 

 

Moreover, the fact that a withdrawal order has been issued increases the 

likelihood that such a penalty will be assessed. The legislative history of the Mine 

Act states that under section 105(b)(1)(A), like under section 105(a): 

 

[T]he Secretary is to similarly notify operators and miners’ representatives

when he believes that an operator has failed to abate a violation within the specified 

abatement period. In most cases, a failure to abate closure order will have been 

issued pursuant to Section [104(b)]. The notice of proposed penalty to operators 

in such cases shall state that a [104(b)] order has been issued and the penalty

provided by Section [110(b)] of the Act shall also be proposed. This penalty shall 

be proposed in addition to the penalty for the underlying violation required by 

Section [110(a)] of the Act. S. Rep. No. 95-181, at 34-35 (1977), reprinted in Senate 

Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal 

Mine Safety and Health Act of 1977, at 622-23 (1978). 

 

In addition, even if no separate penalty for failure to abate a violation is assessed, 

the failure to abate allegation upon which a section 104(b) withdrawal order rests, 

if established, increases the amount of the penalty that is ultimately assessed for the 

underlying violation. As Judge Zielinski recognized in his first decision, ‘the 

demonstrated good faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation is one of the factors that the Commission 

must consider in fixing the amount of a civil penalty.’ 28 FMSHRC at 413 (quoting 

section 110(i) of the Mine Act, 30 U.S.C. § 820(i)). Thus, the sanction for a failure 

to abate is not only a withdrawal order, but, likely, a higher penalty when the 

Secretary eventually assesses a penalty for the original violative condition that 

allegedly was not abated in a timely fashion. See NAACO Mining Co., 9 FMSHRC 

1541, 1545 (Sept. 1987) (‘Under sections 104(b) and 110(b), if the operator does 

not correct the violation within the prescribed period, the more severe sanction of 

a withdrawal order is required, and a greater civil penalty is assessed.’).

 

UMWA v. Maple Creek Mining, 29 FMSHRC 583, 592-594 (July 2007) (emphases 

added). 

 

Per the above decision, the Commission recognized the independent importance of 

104(b) orders may be the subject of a penalty in their own right, citing section 

45 FMSHRC Page 41
104(b)(1)(A). The legislative history, as also cited by the Commission, makes this 

plain: “[t]he notice of proposed penalty to operators in such cases shall state that a 

[104(b)] order has been issued and the penalty provided by Section [110(b)] of 

the Act shall also be proposed. This penalty shall be proposed in addition to the

penalty for the underlying violation required by Section [110(a)] of the Act.” Id. at 

593. (emphases in original Order). 

 

Though no additional reasons are needed to require disclosure of the (b) order in 

this matter, the record does not reveal if the Secretary met his obligation to notify 

the miners’ representatives when, as here, he believed that an operator has failed to 

abate a violation within the specified abatement period. 

 

This Court is well-aware that its review of settlements is presently cabined within 

the terms of the Commission’s decisions in The American Coal Co., 40 FMSHRC 

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

2018) and that under those decisions the Court’s review role has become 

statistically perfunctory. However, there is still an obligation and duty to examine 

each citation and order within a submitted docket, even if the citation is not 

contested and paid as originally assessed. The responsibility to ensure that there is

a complete record is separate and apart from, and not mutually exclusive to, the 

review of violations that have settled, whether such settlements are for the full 

amount proposed or some lesser amount. 

 

Frankly, the Court is at a loss to understand why the Secretary of Labor is not in 

full support of providing the full record of the enforcement actions taken in 

connection with an admitted 104(a) citation. In this matter that involves hiding the 

inspector’s issuance of a 104(b) order in connection with that citation. The apparent 

decision to secrete such information from the Court, the public and especially from 

the miners it is charged to protect is perplexing and at odds with the admonition 

from several federal courts invoking Justice Louis D. Brandeis’ remark that 

“Sunlight is said to be the best of disinfectants.” See, for example, Argus v. U.S. 

Dept Agriculture, 740 F.3d 1172 (8th Cir. 2014), wherein Argus invoked the federal 

law meant to bring disclosure sunlight to the government bureaucracy, in its request 

to see spending information from the U.S. Department of Agriculture under the 

Freedom of Information Act, 5 U.S.C. § 552. To the same effect as the Secretary 

has done here, the Department of Agriculture, with little explanation, refused 

disclosure. Reversing the lower court’s determination that the information sought 

was exempt from disclosure, the Eighth Circuit took note of Justice Louis D. 

Brandeis’ remark about the disinfecting benefit of sunlight. Id. at 1173, citing Other

People’s Money 92 (1914). 

Id. at 503-506 (footnotes omitted). 

Analysis of the Citations involving the Secretary’s modifications of the inspector’s 

evaluations with accompanying significant penalty reductions. 

45 FMSHRC Page 42
Citation No. 9563161 

 Citation No. 9563161 was issued on April 19, 2022, for a violation of 30 C.F.R. 

§ 77.1303(h). Titled “Explosives, handling and use,” the standard specifies that “Ample 

warning shall be given before blasts are fired. All persons shall be cleared and removed from 

the blasting area unless suitable blasting shelters are provided to protect men endangered by 

concussion or flyrock from blasting.” 30 C.F.R. § 77.1303(h). 

 The citation read: 

The certified blaster did not ensure that all persons were cleared from the blast area 

or that all persons were in suitable blasting shelter to protect persons endangered 

by flyrock from blasting. A front-end loader was hit by flyrock from blasting. The 

loader operator was setting inside the operators cab when the flyrock hit the loader. 

The rock hit the left side tilt cylinder in front of the cab where the pin is located. It 

is reasoanbly likey if this condition continues to exist an accident will occur. All 

persons shall be cleared and removed from the blasting area unless suitable blasting 

shelters are provided to protect men endangered by concussion or flyrock from 

blasting. 

Pet. for a Civil Penalty at 82. 

 For gravity, likelihood of injury was found to be “reasonably likely,” and that the injury 

could reasonably be expected to be “fatal,” affecting one person. Id. Accordingly, the violation 

was found to be significant and substantial. Id. Negligence was found to be “moderate.” Id. The 

citation was terminated on January 24, 2022, when “[t]he mine operator ha[d] retrained the 

blaster and blaster helpers on the Blasting Safety Precautions in the Acknowledge[d] Ground 

Control Plan. The training has been documented. Also observed the loading and blasting cycle.” 

Id. at 83. 

 The Secretary moves to modify the citation, changing the negligence finding from 

“moderate” to “low,” offering the following in support: 

Citation #9563161 will be modified to “low” negligence, with a reduction in 

penalty in accordance with the 30 CFR part 100.3. The Respondent contends that 

the negligence of the citation was overevaluated and should not have been issued 

as “moderate”. Respondent would argue at hearing that the company was in 

compliance with their approved plan at the time of the accident. Additionally, no 

adverse conditions were observed by the certified blaster prior to the shot. The 

Secretary recognizes that the ALJ might find merit in the facts and arguments 

presented by the Respondent and in light of the contested evidence and given the 

uncertainties of litigation, the Secretary has agreed to modify the negligence from 

“moderate” to “low”, and reduce the penalty for citation #9563161 from $4,161 to 

$1,869, and the Respondent has agreed to pay the reduced penalty. 

 

 Mot. to Approve Settlement at 3-4. 

45 FMSHRC Page 43
Analysis for Citation No. 9563161 

Citation No. 9563161. The Secretary has agreed to a 55% reduction in the penalty for 

this now-admitted violation. In pursuit of the very large reduction in the regularly assessed 

penalty and the accompanying redesignation of the negligence from moderate to low, the 

Secretary asserts that the judge “might find merit in the facts and arguments presented by the 

Respondent,” but does not reveal his own evaluation of the merits of those assertions. Given the 

presented facts, these changes do not appear to be warranted. 

The standard, now admitted as having been violated, presents no exceptions to its 

requirement that “[a]ll persons shall be cleared and removed from the blasting area ...to protect 

men endangered by concussion or flyrock from blasting.” 30 C.F.R. § 77.1303(h). Here, the 

uncontested facts are that a “front-end loader was hit by flyrock from blasting. The loader 

operator was s[i]tting inside the operators cab when the flyrock hit the loader.” Pet. for a Civil 

Penalty at 82 (emphasis added). Obviously, as the loader was hit by flyrock and the operator 

was in the loader at that time, the standard was violated. 

The justification for designating the negligence as low, with low meaning the presence 

of considerable mitigating circumstances, is without merit. This is because the company’s claim 

that it was in compliance with their approved plan at the time of the accident and that no 

adverse conditions were observed by the certified blaster prior to the shot are of the ‘other 

safety measures taken’ ilk. These excuses do not cut it, per decisions by the U.S. Courts of 

Appeals.4

4 Federal case law is clear that redundant safety measures are not to be considered in 

evaluating a hazard. For example, in Knox Creek Coal, 811 F.3d 148 (4th Cir. 2016), that Court 

observed: 

“[i]f mine operators could avoid S & S liability—which is the primary sanction they 

fear under the Mine Act—by complying with redundant safety standards, operators 

could pick and choose the standards with which they wished to comply.”...Such a 

policy would make such standards “mandatory” in name only. It is therefore 

unsurprising that other appellate courts have concluded that ‘[b]ecause redundant 

safety measures have nothing to do with the violation, they are irrelevant to the [S 

& S] inquiry.’ Cumberland Coal, 717 F.3d at 1029; see also Buck Creek, 52 F.3d 

at 136. 

Knox Creek Coal, 811 F.3d 148, 162 (4th Cir. 2016). 

Regarding this issue, in Consolidation Coal, 895 F.3d 113, (D.C. Cir. 2018), the D.C. 

Circuit, referring to its decision in Cumberland Coal Resources, LP v. Federal Mine Safety & 

Health Review Commission, 717 F.3d 1020 (D.C. Cir. 2013), noted that it: 

interpreted the statutory text to focus on the “nature” of “the violation” rather than 

any surrounding circumstances. More to the point, the court held that 

(continued...) 

45 FMSHRC Page 44
It is undeniable that all persons were not cleared and removed from the blasting area. 

Thus, the harm the standard addresses occurred. 

The Court also notes that the issuing inspector had marked the negligence associated 

with the citation as “moderate.” That means the inspector had already determined there were 

mitigating circumstances. However, qualifying for “low negligence” requires the presence of 

“considerable mitigating circumstances.” 30 C.F.R. §100.3, Table X- Negligence (emphasis 

added). The provision states: “When applying this criterion, MSHA considers mitigating 

circumstances which may include, but are not limited to, actions taken by the operator to 

prevent or correct hazardous conditions or practices.” Id. at 100.3(d) (emphasis added). 

Clearly, no actions taken by the operator to prevent or correct hazardous conditions or practices 

have been identified. In the absence of “considerable mitigation,” it is especially disconcerting 

that the Secretary would agree to reclassifying the negligence to “low” where the operator 

occupied front-end loader was hit by flyrock from a blast. 

The standard, for which strict liability applies, was violated as all persons were not 

cleared and removed from the blasting area. The claim that the operator was in compliance with 

its approved plan is beside the point, as is the contention that the certified blaster did not observe 

any adverse conditions. Neither of these arguments reduce the negligence involved and certainly 

do not constitute considerable mitigation. If flyrock from a blast hitting a miner occupied frontend loader can satisfy a low negligence designation for the reasons presented by the operator, 

then it is hard to conjure what would constitute moderate negligence. Undermining the operator’s 

claims, the inspector noted that the blaster and the blaster operators were retrained on the 

blasting safety precautions in the acknowledged ground control plan. Pet. for a Civil Penalty at 

83. 

In the Court’s opinion, based on this record, the Secretary should not have acceded to this 

$2,292.00 reduction in the regularly assessed penalty. Were it permitted, the Court would have 

asked several questions seeking the basis for the claimed “considerable” mitigation. 

Citation No. 9563188 

 Citation No. 9563188 was issued on February 2, 2022, for a violation of 30 C.F.R. 

§ 48.26. For this now-admitted violation, titled “Experienced miner training,” in relevant part, 

the standard specifies that: 

4

 (...continued) 

“consideration 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).” Id. at 1028–1029. 

Id. at 118-119. 

45 FMSHRC Page 45
(b) Experienced miners must complete the training prescribed in this section before 

beginning work duties. Each experienced miner returning to mining following an 

absence of 5 years or more, must receive at least 8 hours of training. The training 

must include the following instruction: 

(1) Introduction to work environment. The course shall include a visit and tour 

of the mine. The methods of mining or operations utilized at the mine shall be 

observed and explained. 

(2) Mandatory health and safety standards. The course shall include the 

mandatory health and safety standards pertinent to the tasks to be assigned. 

(3) Authority and responsibility of supervisors and miners' representatives. The 

course shall include a review and description of the line of authority of supervisors 

and miners' representatives and the responsibilities of such supervisors and 

miners' representatives; and an introduction to the operator's rules and the 

procedures for reporting hazards. 

(4) Transportation controls and communication systems. The course shall 

include instruction on the procedures in effect for riding on and in mine 

conveyances; the controls for the transportation of miners and materials; and the 

use of the mine communication systems, warning signals, and directional signs. 

(5) Escape and emergency evacuation plans; firewarning and firefighting. The 

course must include a review of the mine escape system and the escape and 

emergency evacuation plans in effect at the mine, and instruction in the 

firewarning signals and firefighting procedures in effect at the mine. 

(6) Ground controls; working in areas of highwalls, water hazards, pits, and 

spoil banks; illumination and night work. The course shall include, where 

applicable, an introduction to and instruction on the highwall and ground control 

plans in effect at the mine; procedures for working safely in areas of highwalls, 

water hazards, pits, and spoil banks, the illumination of work areas, and safe work 

procedures for miners during hours of darkness. 

(7) Hazard recognition. The course must include the recognition and avoidance 

of hazards present in the mine. 

(8) Prevention of accidents. The course must include a review of the general 

causes of accidents applicable to the mine environment, causes of specific 

accidents at the mine, and instruction in accident prevention in the work 

environment. 

(9) Emergency medical procedures. The course must include instruction on the 

mine's emergency medical arrangements and the location of the mine's first aid 

equipment and supplies. 

(10) Health. The course must include instruction on the purpose of taking dust, 

noise, and other health measurements, where applicable; must review the health 

provisions of the Act; and must explain warning labels and any health control plan 

in effect at the mine. 

(11) Health and safety aspects of the tasks to which the experienced miner is 

assigned. The course must include instruction in the health and safety aspects of 

the tasks assigned, including the safe work procedures of such tasks, information 

about the physical and health hazards of chemicals in the miner's work area, the 

protective measures a miner can take against these hazards, and the contents of 

45 FMSHRC Page 46
the mine's HazCom program. Experienced miners who must complete new task 

training under § 48.27 do not need to take training under this paragraph. 

(12) Such other courses as may be required by the District Manager based on 

circumstances and conditions at the mine. 

 30 C.F.R. § 48.26. 

The citation read: 

The independent contract mechanics that work throughout mine property on 

a daily bas[i]s were not provided Experience[d] Miner Training. The operator 

must withdraw both mechanics from the property until the required training is 

received. The Federal Mine Safety and Health Act of 1977 declares that an 

untrained miner is a hazard to themselves and others. 

Petition at 103 (emphasis added). 

For gravity, likelihood of injury was found to be “reasonably likely,” with the injury 

reasonably be expected to be “fatal,” affecting two persons. Id. The violation was found to be 

significant and substantial. Id. Negligence was found to be “moderate.” Id. The citation was 

terminated on February 2, 2022, when “Both mechanics have been provided with the required 

Experience Miner Training and the training has been documented on a MSHA Form 5000-23.” 

Id. at 104. 

 The Secretary moves to modify the citation, reducing gravity from “reasonably likely” to 

“unlikely” and removing the significant and substantial designation, offering the following in 

support: 

Citation #9563188 will be modified to “unlikely” and “non S&S” gravity, with a 

reduction in penalty per 30 CFR part 100.3. The Respondent contends that the 

gravity was over-evaluated and should not have been issued as “reasonably likely” 

and “S&S”. Respondent would argue at hearing that the independent contractors 

were experienced miners and had been working on mine property for several weeks. 

Additionally, all workers had been verbally informed of any and all hazards on 

mine property. The Secretary has exercised his discretion to modify the significant 

and substantial designation associated with citation #9563188. The Secretary may 

exercise that discretion as part of a settlement. Am. Aggregates of Michigan, Inc., 

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

FMSHRC 877, 879-80 (June 1996)). The Secretary recognizes that the ALJ might 

find merit in the facts and arguments presented by the Respondent and in light of 

the contested evidence and given the uncertainties of litigation, the Secretary has 

agreed to modify the gravity from “reasonably likely” to “unlikely” and deleting 

the “S&S” finding, and reduce the penalty for citation #9563188 from $4,507 to 

$910, and the Respondent has agreed to pay the reduced penalty. 

Motion at 4. 

45 FMSHRC Page 47
Analysis for Citation No. 9563188

Citation No. 9563188 states that “[t]he independent contract mechanics that work 

throughout mine property on a daily bas[i]s were not provided Experience[d] Miner Training.” 

Petition at 103. The mechanics were withdrawn from the mine until the required training was 

received. That event occurred later that day, at which point the citation was terminated. For this 

now-admitted violation, the Secretary has agreed to redesignate the violation from reasonably 

likely to ‘unlikely.’ Motion at 4. The recharacterization of gravity to ‘unlikely’ destroys the 

significant and substantial designation. 

The reasons advanced by the Respondent are, in the Court’s estimation, suspect. Those 

reasons – that that the independent contractors were experienced miners and had been working 

on mine property for several weeks and that all workers had been verbally informed of any and 

all hazards on mine property – if endorsed, effectively emasculates the standard. As the 

inspector noted, the Mine Act itself declares an untrained miner to be a hazard to himself and 

others. 30 U.S.C. §814(g)(1). By accepting the assertion that the mechanics were experienced 

and they’d been working on the mine for several weeks and they had been told verbally of ‘any 

and all hazards’ on the mine property,” the Secretary has discarded his own safety training 

standard. There is no exception in the standard for the excuses advanced by the mine operator. 

To the contrary, that the mechanics had been working, without the required training, is an 

aggravating factor. Asserting that the mechanics had been verbally apprised of all hazards, an 

outlandish claim, is no substitute either. In the Court’s opinion, on this record the Secretary has 

eviscerated the standard’s statutory and regulatory requirement by adopting the operator’s 

excuses as grounds for characterizing the gravity as unlikely. 

Thus, the Court believes that the Secretary’s agreement to reclassify the likelihood of an 

injury or illness occurring to “unlikely” makes a mockery of the standard’s requirements. It is, 

after all, described as “experienced” miner training. Because it addresses such experienced 

miners, the idea that because the independent contractors were experienced miners by 

background, but not by the MSHA required training and the remark that they had been working 

on mine property for several weeks suffices, neuters the standard. The latter argument amounts 

to a claim that by continuing to work without the MSHA required training, that training 

requirement evaporates. The agreement for an 80% (eighty percent) reduction in the 

penalty confirms this observation. The standard does not speak of ‘experience’ in a vacuum. 

Instead, it spells out, in detail, the required subjects of required training. Additionally, the idea 

that because the contractors had been on the job “for several weeks,” (an indisputably short 

period of time), makes the hazard unlikely, is another instance of effectively negating the force 

of the standard. Last, the standard, detailed as it is, does not endorse the idea that verbally

informing all miners of “any and all hazards” is a substitute. The Court believes that the 

Secretary should not be in the business of emasculating MSHA’s training requirements. 

45 FMSHRC Page 48
Citation No. 9563189 

 Citation No. 9563189 was issued on February 2, 2022, for a violation of 30 C.F.R. 

§ 77.1606(c). Titled “Loading and haulage equipment; inspection and maintenance,” this 

standard specifies that 

(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. 

(b) Carriers on aerial tramways, including loading and unloading mechanisms, shall 

be inspected each shift; brakes shall be inspected daily; ropes and supports shall be 

inspected as recommended by the manufacturer or as physical conditions warrant. 

Equipment defects affecting safety shall be reported to the mine operator. 

(c) Equipment defects affecting safety shall be corrected before the equipment is 

used. 

30 C.F.R. § 77.1606. 

The citation read: 

The following defects affecting safety existed on the Volvo Fuel & Oil Service 

Truck Co. No. 900: 

1. An air leak existed on the fuel line switch which was causing the air to drop from 

both the primary and secondary tanks. 

2. The regulator on the air compressor was not functioning properly when tested. 

This truck is operated throughout mine proper to service equipment. Defects 

affecting safety shall be corrected before the equipment is used. 

Standard 77.1606(c) was cited 63 times in two years at mine 4608930 (62 to the 

operator, 1 to a contractor). 

Petition at 105. 

For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably 

be expected to be “fatal,” affecting one person. Id. The violation was not found to be significant 

and substantial. Id. Negligence was found to be “moderate.” Id. The citation was terminated on 

February 8, 2022, with the justification that 

The following actions have been taken to correct the conditions: 

1. Installed a new air line on fuel valve and a air line under the rear of the truck. 

2. Installed a new fitting on the air compressor. 

Id. at 106. 

The Secretary moves to modify the citation, changing the gravity from “fatal” to “lost 

workdays or restricted duty,” offering the following in support: 

45 FMSHRC Page 49
Citation #9563189 will be modified to “lost workdays or restricted duty” gravity, 

injury or illness expected, with a reduction in penalty in accordance with the 30 

CFR part 100.3. The Respondent contends that the gravity of the citation was overevaluated and should not have been issued as “fatal”. Respondent would argue at 

hearing that the cited conditions would not cause fatal injuries to miners. The cited 

truck is only used to fuel, oil, and grease equipment on level loads at slow speeds. 

Additionally, all brakes worked properly when tested. The Secretary recognizes 

that the ALJ might find merit in the facts and arguments presented by the 

Respondent and in light of the contested evidence and given the uncertainties of 

litigation, the Secretary has agreed to modify the gravity from “fatal” to “lost 

workdays or restricted duty,” and reduce the penalty for citation #9563189 from 

$3,274 to $987, and the Respondent has agreed to pay the reduced penalty. 

Motion at 5. 

Analysis for Citation No. 9563189 

This Citation involves not one, but two, safety defects on a fuel and oil service truck. For 

this now-admitted violation, the inspector found both an air leak on the fuel line switch, causing 

the air to drop from both the primary and secondary tanks, and additionally that the regulator on 

the air compressor was not functioning properly upon being tested. Further, the corrections 

demonstrated that the admitted hazards required significant actions as new air lines had to be 

installed on the fuel valve and on the rear of the truck, plus the air compressor required a new 

fitting. To arrive at the Secretary’s 70% reduction in the penalty, the gravity was reduced to lost 

workdays or restricted duty. The Secretary, per his customary approach, does not inform 

whether he consulted with the issuing inspector’s view regarding this new assessment of the 

reasonably expected injury. The assertion that the cited truck is only used to fuel, oil, and grease 

equipment on level loads at slow speeds does not speak to the claim that lost workdays or 

restricted duty would result. Those claims do not translate to demonstrate that hazards from a 

fuel line leak and the improperly functioning air compressor would result in such diminished 

injuries. Nor is the association between the assertion that the brakes were properly working and 

the twin conceded defects explained. 

 Further, examining the particulars in claimed support that an injury would not be fatal, 

the Respondent’s offering does not explain the relevance of the information, nor does the 

motion present the alternative injury that would result. Would the injury be permanently 

disabling, result in lost workdays, or no lost workdays at all? No explanation is offered, merely 

the bald assertion that it would not be fatal. Certainly the assertion that the cited truck is only 

used to fuel, oil, and grease equipment on level loads at slow speed does not explain the claim 

that no fatality would result. Nor does the claim that all brakes worked properly when tested, as 

both are of the alternative putative safety considerations not to considered. The Court, were it 

permitted, would have several questions to ask of the Respondent regarding its claim. Finally, it 

is noted that the Secretary remains mum regarding the Respondent’s claims, preferring once 

again to state only that the Court might find merit in them. 

45 FMSHRC Page 50
Last, it is noted that the standard cited for this now-admitted violation requiring that 

equipment defects affecting safety shall be corrected before the equipment is used, has been cited 

63 times in the two years at this mine, a fact which should give pause by itself. Even within the 

original parent docket, WEVA 2022-0301, which entailed 33 citations, before 16 of them were 

reallocated to this docket, 12 (twelve) of the original 33 (thirty-three) citations involved violations 

of the cited subsection for this standard, 30 C.F.R. § 77.1606(c). Those numbers alone should 

make one blanch when the Secretary has agreed to a 70% (seventy percent) reduction in the 

penalty for this violation, producing a $2,287.00 (two-thousand two-hundred eighty-seven dollars) 

penalty reduction from the regularly proposed assessment. 

Reasonable Inquiry is not Permitted 

Despite the Court’s analysis and concerns, regarding the three citations with significant 

penalty reductions, 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 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. 

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 51
In the context of settlement motions, “facts” have an atypical meaning.5 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). 

As the motion meets the Commission’s standard for approving settlement motions and as 

the Court is duty-bound to faithfully apply the Commission’s present decisional holdings 

regarding review of settlement motions according to the way the Commission has interpreted its 

review responsibilities under the unique review provision set forth in section 110(k) of the Mine 

Act and, applying those holdings, the Court determines that this settlement, as with all settlement 

motions presented to this Court post-AmCoal, also meets the Commission’s review criteria and 

therefore the motion is to be approved as appropriate. 

Typically found in the Secretary’s motions for approval of settlement is language along 

the lines that the parties seek to have the Court accept that it acknowledges and accepts the 

explanation for the agreed upon settlement contained in the parties’ settlement motion and 

amendments. In this instance, the Secretary includes as proposed language that the Court has 

“considered the representations and documentation submitted, f[ound] that the assessment is 

reasonable and . . . conclude[d] that the proposed settlement is appropriate under the criteria set 

forth in section 110(i) of the Act.” Draft Order at 3. The Court cannot subscribe to such 

 5 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 52
language.6 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). 

The Court has considered the motion in the context of comparing it with the 

Commission’s AmCoal decision and finds that it meets that decision’s standard of review. 

Accordingly, on that basis only, the motion to approve settlement is GRANTED, the citations 

contained in this docket are MODIFIED as set forth above and Respondent Appalachian 

Resource West Virginia, LLC, is ORDERED to pay the Secretary of Labor the sum of 

$20,070.00 within 30 days of this decision.7

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

6 Nor does the Court endorse, or agree with, the assertions commonly found in the 

Secretary’s motions for approval of settlements in which the Secretary claims that a final 

resolution of this matter in which all violations are resolved is of significant enforcement value 

to the Secretary. Neither does the Court endorse or agree with the Secretary’s claim that the 

modifications to the citations are immaterial, nor with the accompanying claim that the 

Secretary’s evaluation of these citations, as modified, remain preserved for future enforcement 

actions. The Court has never been informed of any such value. Such boilerplate claims are 

almost always hollow, in view of the actual modifications and penalty reductions that makeup 

these motions. 

7 It is preferred that penalties 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 important to include Docket and A.C. Numbers with the payment.

45 FMSHRC Page 53
Distribution: 

K. Brad Oakley, Esq., Jackson Kelly PLLC, 100 W. Main Street, Suite 700 

Lexington, KY 40507 kboakley@jacksonkelly.com 

Emily Toler Scott, Esq., Counsel for Appellate Litigation, Office of the Solicitor 

Division of Mine Safety & Health, 201 12th Street South, Suite 401, Arlington, VA 22202 

scott.emily.t@dol.gov 

David C. Trent, Conference & Litigation Representative, U.S. Department of Labor, MSHA 

4499 Appalachian Highway, Pineville WV 24874 Trent.david@dol.gov 

45 FMSHRC Page 54
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 

January 17, 2023 

SECRETARY OF LABOR, 

UNITED STATES DEPARTMENT OF 

LABOR, MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

v. 

IRON CUMBERLAND, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 2022-0084 

A.C. No. 36-05018-555460 

Mine: Cumberland Mine 

 

DECISION APPROVING SETTLEMENT 

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. Two section 104(d)(2) orders 

are involved, both of which were specially assessed. The Secretary has filed the Motion to 

Approve Settlement of the orders. As set forth in the table below, the Motion seeks to reduce the 

penalties, resulting in an overall reduction of $31,862.00 for this docket. The parties move to 

reduce the penalty assessed for the orders, as stated below. 

Order 

MSHA’s 

Proposed 

Penalty 

Settlement 

Amount Other modifications to order 

9257780 $21,100.00 $14,172.00 Penalty reduction of 33% 

9257810 $59,100.00 $34,166.00 Penalty reduction of 42% 

Total $80,200.00 $48,338.00 Total penalty reduction of 40% 

Both 104(d)(2) orders are associated with 104(d)(1) Order No. 9253174. That (d)(1) 

order was settled as part of the docket PENN 2022-0014. Decision Approving Settlement, 

PENN 2022-0014, May 26, 2022. The relevant underlying order was Order No. 9253174, for 

which the Motion sought a 62% reduction in the penalty. 

Background 

This following background is being presented to preserve the relevant historical record 

regarding the Cumberland Mine’s recent violation history for violations of 30 C.F.R. § 

75.400.

45 FMSHRC Page 55
The June 2021 Violation of 30 C.F.R. § 75.400 

As reflected in Docket No. PENN 2022-0014, Order No. 9253174 was issued on June 17, 

2021 as a Section 104(d)(1) Order, for violation of 30 C.F.R. § 75.400. Titled “Accumulation of 

combustible materials,” this standard requires that “Coal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not 

be permitted to accumulate in active workings, or on diesel-powered and electric equipment 

therein.” 30 C.F.R. § 75.400. The citation was regularly assessed at $6,494.00 and was not given 

the 10% good faith reduction. Via the Secretary’s Motion to Approve Settlement, at the end of 

the day, for this admitted violation, the Secretary agreed to modify the likelihood of injury from 

“reasonably likely” to “unlikely.” That change altered the violation to non-S&S, with the 

consequence that the operator paid the minimum penalty for a Section 104(d)(1) order from 

$6,494.00 down to $2,493.00, a sixty-two percent (62 %) reduction. To the Court at least, it is 

noteworthy that as of June 17, 2021, the mine operator had been cited fifty-seven (57) times 

for violations of 30 C.F.R. § 75.400. Within just that docket, five (5) of the eleven (11) 

citations involved violations of that standard. All of the violations were (d) orders 

The order read: 

The operator allowed accumulations of combustible materials to exist in the 

following locations and in various forms on the 75 Headgate development section 

(MMU 002) [Area or Equipment impacted: from the Tailpiece inby in all 3 entries]. 

1 - Accumulations of float coal dust, dark grey to black in color has been deposited 

on the mine roof and ribs from 22 1/2 block to 25 block in the number 3 entry, 

which is the Return. These accumulations were approximately 1/16 of an inch in 

depth. 

2 - Accumulations of loose coal and coal fines were found in the number 2 entry at 

25 3⁄4 block, along the left rib. These accumulations measured up to 40 feet in length, 

25 inches in depth and 28 inches in width. 

3 - Accumulations of loose coal and coal fines were found just inby the 26 block 

crosscut in the number 2 entry face area that measured 20 feet in width, 14 feet in 

length and up to 4 feet in depth. 

4 - Accumulations of float coal dust, black in color were found to be deposited on 

both ribs in the number 1 entry from just inby the 24 block crosscut to 25 3/4 block. 

5 - There was 21 cardboard boxes (roof bolt resin boxes) found to be piled up along 

the solid rib at the 26 block crosscut in the number 1 entry. 

The [conditions] were obvious and extensive and should have been evident to even 

a casual observer, much less a certified person. If these conditions were left 

unnoticed, and therefore uncorrected, and normal mining operations were to 

continue, it would be reasonably likely that an accident would occur due to the 

45 FMSHRC Page 56
exposure to the conditions. Also, a confluence of factors exists as there was also a 

citation issued for 24 cutting bits being excessively worn (completely missing 

carbide tips or more) and 4 cutting bits being completely missing on the company 

number 1022 Continuous Mining Machine. 

Standard 75.400 was cited 57 times in two years at mine 3605018 (57 to the 

operator, 0 to a contractor). This violation is an unwarrantable failure to comply 

with a mandatory standard. 

Petition for a Civil Penalty at 11-12. 

The gravity of the violation was found to be “reasonably likely,” and could reasonably be 

expected to result in “lost workdays or restricted duty,” affecting one person. Id. at 11. The 

violation was found to be significant and substantial. Id. Negligence was assessed as “high.” Id. 

The order was terminated on June 19, 2021 with the justification that “The operator has removed 

all accumulations from the cited areas and rockdusted the entire section with a scoop mounted 

flinger duster.” Id. at 13. 

In support of the proposed modification, the Secretary offers the following: 

Order No. 9253174 is a Section 104(d)(1) order for the accumulation of 

combustible materials in five locations on the 75 Headgate development section in 

violation of 30 C.F.R. § 75.400. MSHA determined that the violation was 

reasonably likely to cause an injury resulting in lost workdays and restricted duty, 

and was therefore significant and substantial, that it affected one person, and that 

the operator exhibited a high degree of negligence. MSHA assessed a penalty of 

$6,494.00. 

The inspector referenced worn cutting bits on the continuous mining machine as an 

ignition source for the cited materials. The Respondent contends that the material 

in the first area mentioned, which MSHA cited for accumulations of float coal dust 

on the mine roof and ribs in the No. 3 entry, was rather a mixture of coal and rock 

dust of unknown combustible content. The Respondent further contends that this 

affected area was located outby the last open crosscut approximately 200 feet from 

the working face and therefore removed from the referenced ignition source. The 

second area mentioned, which MSHA cited for accumulations of loose coal and 

coal fines in the No. 2 entry, the Respondent contends consisted of extremely wet 

material that resulted from rib sloughage, which was also located outby the last 

open crosscut away from the referenced ignition source. The Respondent contends 

that the material in the third area, which MSHA cited for coal accumulations inby 

the last open crosscut at the working face of the No. 2 entry, were contained in a 

mud hole, fully saturated with water, and therefore would not contribute to an 

explosion or fire. The material in the fourth area, which MSHA cited for float coal 

dust in the No. 1 entry, was, argues the Respondent, in the intake air course and did 

not extend up to the working face and therefore was not near the referenced ignition 

source. Finally, the fifth area, which MSHA cited for the placement of cardboard 

boxes adjacent to the last open crosscut in the No. 1 entry, would not have been 

45 FMSHRC Page 57
readily ignited by the referenced ignition source, and were awaiting immediate 

removal prior to the resumption of mining in the No. 1 entry. In consideration of 

this and the risks inherent in litigation, the Secretary agrees to modify the likelihood 

of injury from “reasonably likely” to “unlikely”, which changes the order to nonS&S, and reduces the penalty to $2,493.00, the minimum for a Section 104(d)(1) 

order. 

Motion to Approve Settlement at 3-5. 

Per the Secretary’s custom the motion did not inform whether he consulted with the 

issuing inspector regarding the mine operator’s assertions for any of the five areas cited in the 

Order. 

 As the Court noted in its review of this citation: 

At the outset it is important to note that the inspector identified five (5) 

distinct areas of accumulations of combustible materials in this highly gassy mine. 

Two of these involved accumulations of float coal dust, with one location 

describing them as dark grey to black and the other as black. Two other, separate, 

areas involved accumulations of loose coal and coal fines. The fifth area, also in a 

distinct location, involved 21 cardboard boxes. Cardboard is combustible material. 

As the inspector stated and the information in his Order reflects, the conditions were 

obvious and extensive and should have been evident to even a casual observer, 

much less a certified person. 

The issuing inspector also applied the correct Commission test for these multiple 

accumulations, namely that assuming continuation of normal mining operations, he 

found that it would be reasonably likely that an accident would occur due to the 

exposure to the conditions. 

Though not a requirement to support his evaluation, the inspector also stated that 

there was a confluence of factors existing as there was also a citation issued for 24 

cutting bits being excessively worn (completely missing carbide tips or more) and 

4 cutting bits being completely missing on the company number 1022 Continuous 

Mining Machine. This appears to be a reference to Citation No. 9253300, which 

describes such worn or missing bits on the 1022 Continuous Mining Machine. 

PENN 2021-0112 Pet. for a Civil Penalty at 12. 

 Further, the operator was no stranger to the accumulation of combustible 

materials standard, 30 C.F.R. § 75.400, with it being cited 57 (fifty-seven) times in 

two years at mine. 

In the context of these five distinct areas of combustible accumulations and 

its very frequent occurrence, Respondent makes, as it must, various arguments in 

an attempt to show that the likelihood of an injury occurring was unlikely. These 

contentions have been set forth above and need not be repeated here. A tall task, 

45 FMSHRC Page 58
the Respondent tries to diminish the seriousness of each of five distinct areas with 

various claims. They consist of various claims – that the combustible accumulations 

were some distances from the working face or were otherwise located so as to 

diminish the likelihood of occurrence or, an irrelevant consideration, the inspector 

didn’t analyze the combustible content of the coal dust, which is not a requirement 

to establish a violation, or they were wet or, in the case of the 21 boxes, they were 

awaiting immediate removal before mining resumed. However, at some point, the 

array of accumulations and the operator’s habitually being cited for such 

accumulations cannot be explained away. It is noteworthy, that per its motion, the 

Secretary recounts the claims without comment. 

Some additional comments about the Respondent’s claims that it is unlikely 

for an injury to occur are in order. 

Several of these arguments, as detailed below, assert evidence not observed 

by the inspector in the initial inspection giving rise to the order and the Secretary 

does not inform whether it presented the Respondent’s claims to the issuing 

inspector, who diligently detailed the conditions and extent of the five areas he 

identified in his order, areas, as noted above, that he remarked “were obvious and 

extensive and should have been evident to even a casual observer.” 

As to the first of the five identified areas, the inspector observed that the 

material was dark grey to black in color, indicative that it the accumulations were 

not some innocuous combination of coal dust and rock dust and the float coal dust 

accumulation was substantial, extending over the length of 2.5 blocks. 

For the second area, Respondent contends that the accumulated material was 

extremely wet material from rib sloughage. Here again, the Motion does not inform 

if the Secretary made inquiry, in support of the inspector’s detailed recounting of 

the conditions he found, if he inquired about this claim. What the Court does know, 

from the text of the order itself, is that the loose coal and coal fines accumulation 

was significant, 40 feet long, 25 inches deep, and 28 inches wide; and that the 

Respondent does not dispute this. 

 The same can be said for the third area, where Respondent contends the 

material was located in a mud hole, fully saturated with water, and therefore 

unlikely to ignite. One can only hope that, if the Secretary intends to encourage 

MSHA inspectors in their efforts to detail hazards, that the courtesy of presenting 

these claims to the issuing inspector was made. As with the first location, what the 

Court does know is that the accumulation of material was significant – 20 feet wide, 

14 feet long, and up to 4 feet in depth. 

For the first, second, fourth, and fifth areas, Respondent claims the 

identified combustible material in question – accumulated lose coal and coal fines, 

float coal dust, or cardboard boxes – was too far away from the working face. This 

contention ignores the plain language of the standard, which requires that 

45 FMSHRC Page 59
combustible materials shall be cleaned up and not be permitted to accumulate in 

active workings. The accumulations cited by the inspector were all in active 

workings. Active workings” is defined in 30 C.F.R. § 75.2 as “[a]ny place in a coal 

mine where miners are normally required to work or travel. 

Decision Approving Settlement May 26, 2022 at 6-8. 

December 2021 

The 104(d)(2) Orders for this matter, Docket No. PENN 2022-0084 

 Order No. 9257780 was issued on December 20, 2021, for a violation of 30 C.F.R. 

§ 75.400. Titled “Accumulation of combustible materials,” the standard specifies that 

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, 

and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on diesel-powered and electric equipment 

therein. 

30 C.F.R. § 75.400. 

 The order read: 

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, 

and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings. On the 6 Mains West #1 Belt accumulations of 

combustible material in the form of coal, coal fines and float coal dust has been 

allowed to exist at the following locations: 

1.) 11 Mains West transfer (11 block), coal accumulations in the form of coal 

and coal fines is present on the off side of the transfer measuring 12 inches wide by 

12 foot long and 4 feet to 16 inches in depth. In addition there is coal fines present 

in the walkway measuring 3 feet wide by 15 feet long and 2 to 4 inches in depth. 

2.) 12 1⁄4 block, coal accumulations in the form of loose coal and coal fines is 

present in contact with a turning bottom roller creating frictional heat. Smoke was 

being imitted from the accumulations. The accumulations measured 40 inches long 

by 24 inches wide and 10 inches deep. 

3.) 15 1⁄4 block, coal accumulations in the form of loose coal and coal fines is 

present in contact with a turning bottom roller. The accumulations measured 32 

inches long by 24 inches wide and 12 inches deep. 

4.) 15 1⁄2 block, coal accumulaions in the form of loose coal and coal fines is 

present in contact with a turning bottom roller. The accumulations measured 32 

inches long by 22 inches wide and 8 inches deep. 

45 FMSHRC Page 60
5.) 15 1⁄2 block, coal accumulations in the form of loose coal and coal fines is 

present in contact with a turning bottom roller. The accumulations measured 48 

inches long by 26 inches wide and 10 inches deep. 

6.) 15 3⁄4 block, coal accumulations in the form of loose coal and coal fines is 

present in contact with a turning bottom roller. The accumulations measured 32 

inches long by 24 inches wide and 10 inches deep. 

7.) 15 3⁄4 block, coal accumulatios in the form of loose coal and coal fines is 

present in contact with a turning bottom roller. The accumulations measured 40 

inches long by 20 inches wide and 10 inches deep. 

8.) 16 1⁄2 block, coal accumulations in the form of loose coal and coal fines is 

present in contact with a turning bottom roller. The accumulations measured 30 

inches long by 20 inches wide and 8 inches deep. 

9.) 11 to 17 block, coal accumulations in the form of coal float dust is present 

on mine floor, roof, ribs, structure and water pipe. The accumulations measured 

approximately 1200 feet and 16 feet wide. 

10.) 11 to 17 block, coal accumulations in the form of loose coal and coal fines is 

present on the offside of the belt under every bottom roller. 

Standard 75.400 was cited 71 times in two years at mine 3605018 (71 to the 

operator, 0 to a contractor). This violation is an unwarrantable failure to comply 

with a mandatory standard. 

 Petition for a Civil Penalty at 10-11. 

 For gravity, likelihood of injury was found to be “reasonably likely,” and injury could 

reasonably be expected to result in “lost workdays or restricted duty”1 affecting one person. 

Id. at 10. The violation was found to be significant and substantial. Id. Negligence was found 

to be “high.” Id. 

The order was terminated on December 20, 2021, when “Seven Hourly miners, two 

supervisors and three rock dusters worked to correct conditions for 3 hours for total of 36 

1 Originally assessed as “fatal,” a subsequent correction, made on February 9, 2022, changed 

the injury expected from “fatal” to “lost workdays,” with the explanation that 

The injury-causing event that would most reasonably result from the cited condition 

was a mine fire caused by frictional heating of coal contacting the moving conveyor 

belt and rollers. Fires in isolated belt entries typically result in lost workday or 

restricted duty type injuries. Explosion of the coal dust in the affected area was 

unlikely due to the absence of methane accumulations or other conditions that 

would place a sufficient quantity of dust in suspension. 

Id. at 12. 

The justification given was that “[t]his subsequent action is issued as a result of a 

safety and health conference conducted January 6, 2022.” Id. 

45 FMSHRC Page 61
man hours to remove[] all accumulations and rock dust the area. All conditions have 

been corrected.” Id. at 10 (emphasis added). 

Order No. 92457810 

 Order No. 92457810 was issued on January 19, 2022, for a violation of 30 C.F.R. 

§ 75.400, “Accumulation of combustible materials,” supra. 

 The order read: 

Accumulation of combustible materials. Coal dust, including float coal dust 

deposited on rock-dusted surfaces, loose coal, and other combustible materials, 

shall be cleaned up and not be permitted to accumulate in active workings. On the 

6 Mains West #1 belt there is accumulations present at the following locations on 

previous rock dusted surfaces: 

1.) 6 Mains West #2 Transfer at 35 block, there is accumulations present in the 

form of loose coal and coal fines in contact with a bottom roller. The 

accumulations measured 72 inches long by 32 inches wide and 14 inches 

deep. 

2.) 34 to 28 block on the offside of belt, there is accumulations present in the 

form of coal dust on previous rock dusted surfaces on the mine roof, mine 

floor, mine ribs, belt structure and water line. The accumulations measured 8 

foot wide by 1500 feet long. 

3.) 32 block, there is accumulations present in the form of loose coal, coal fines, 

and coal dust in contact with a bottom roller. The accumulations measured 2 

foot long by 4 foot wide and 10 inches deep. 

4.) 31 1⁄2 block, there is accumulations present in the form of loose coal, coal 

fines, and coal dust in contact with a bottom roller. The accumulations 

measured 2 foot long by 3 foot wide and 10 inches deep. 

5.) 26 to 23 block on the off side of the belt, there is accumulations present in the 

form of coal dust on previous rock dusted surfaces on the mine roof, mine 

floor, mine ribs, belt structure and water line. The accumulations measured 8 

foot wide by 750 feet long. 

6.) 22 1⁄2 to 20 1⁄2 block on the off side of the belt, there is accumulations present 

in the form of coal dust on previous rock dusted surfaces on the mine roof, 

mine floor, mine ribs, belt structure and water line. The accumulations 

measured 8 foot wide by 500 feet long. 

7.) 20 1⁄2 block, there is accumulations present on the offside of the belt in the 

form of loose coal, coal fines and coal dust. The accumulations measured 10 

foot long by 32 inches wide and 16 inches deep. 

8.) 19 block, there is accumulations present in the form of loose coal and coal 

fines in contact with a bottom roller. The accumulations measured 2 foot long 

by 2 foot wide and 12 inches deep. 

45 FMSHRC Page 62
9.) 19 block, there is accumulations present in the form of loose coal and coal 

fines in contact with a bottom roller. The accumulations measured 2 foot long 

by 2 foot wide and 10 inches deep. 

10.) 18 3⁄4 block, there is accumulations present in the form of loose coal and 

coal fines in contact with a bottom roller. The accumulations measured 4 foot 

long by 2 foot wide and 6 inches deep. 

11.) 17 1⁄4 to 17 block, there is accumulations present in the form of loose coal 

and coal fines on mine floor. The accumulations measured 20 foot long by 16 

foot wide and 1 to 2 inches deep. There is also coal dust accumulations present 

on the mine floor, roof, ribs, structure and water line. 

12.) 15 1⁄4 there is accumulations present in the form of loose coal and coal fines 

in contact with a bottom roller. The accumulations measured 2 foot long by 3 

foot wide and 12 inches deep. 

13.) 14 3⁄4 there is accumulations present in the form of loose coal and coal fines 

in contact with two bottom sets of rollers. The accumulations measured 9 

inches long by 1 foot wide and 16 inches deep and 6 inches long by 12 inches 

wide and 12 inches deep respectively. 

14.) 11 to 11 1⁄2 bloc, there is accumulations present in the form of coal dust on 

previous rock dusted surfaces on the mine roof, mine floor, mine ribs, belt 

structure and water line. The accumulations measured 16 foot wide by 125 

feet long. 

15.) 11 Mains transfer at 11 block, there is accumulations present in the form of 

loose coal and coal fines in contact with a bottom roller. The accumulations 

measured 16 foot long by 72 inches wide and 16 inches deep. The 

accumulations are in contact with the bottom belt of 6 Mains West #1 belt and 

a bottom roller. 

16.) 10 3⁄4 block, there is accumulations present in the form of loose coal and 

coal fines in contact with a bottom roller. The accumulations measured 24 

inches long by 12 inches wide and 12 inches deep. 

17.) 8 1⁄2 block, there is accumulations present in the form of loose coal and coal 

fines in contact with a bottom roller. The accumulations measured 27 inches 

long by 30 inches wide and 8 inches deep. 

18.) 8 1⁄2 block, there is accumulations present in the form of loose coal and coal 

fines in contact with a bottom roller. The accumulations measured 48 inches 

long by 27 inches wide and 8 inches deep. 

19.) 6 3⁄4 block, there is accumulations present in the form of loose coal and coal 

fines in contact with a bottom roller. The accumulations measured 42 inches 

long by 30 inches wide and 12 inches deep. 

20.) 6 3⁄4 block, there is accumulations present in the form of loose coal and coal 

fines in contact with a bottom roller. The accumulations measured 6 foot long 

by 3 foot wide and 12 inches deep. 

21.) 6 block Langley, there is accumulations present in the form of loose coal, 

coal fines and coal dust present. The accumulations measured 50 foot long by 

16 foot wide and 2 to 3 inches deep. 

22.) 6 Mains West #1 transfer, there is accumulations present in the form of 

loose coal, coal fines, and coal dust present. The accumulations are in contact 

45 FMSHRC Page 63
with the 79 North Mains belt. The accumulations measured 16 foot long by 8 

foot wide and 12 inches deep. 

23.) 79 North Mains tailpiece, There is accumulations present in the form of 

loose coal, coal fines, and coal dust present. The accumulations are in contact 

with the 79 North Mains belt and tail roller. The accumulations measured 14 

foot long by 24 inches wide and 14 to 16 inches deep. 

24.) 79 North Mains tailpiece off side, There is accumulations present in the 

form of loose coal, coal fines, and coal dust present. The accumulations are 

in contact with the 79 North Mains belt. The accumulations measured 6 foot 

long by 28 inches wide and 36 inches deep. 

25.) 6 Mains West #1 belt transfer adjacent crosscut inline with 6 Mains West 

Belt, There is accumulations present in the form of loose coal, coal fines, and 

coal dust. The accumulations measured 9 foot long by 4 foot wide and 32 

inches deep. 

26.) 11 block to 6 Mains West #1 Transfer, there is accumulations of coal dust 

present on the offside of the belt. Accumulations are present on mine floor, 

roof, ribs, structure and water line on previous rock dusted surfaces. The 

accumulations measured 10 foot wide by 2750 feet long. 

Standard 75.400 was cited 78 times in two years at mine 3605018 (78 to the 

operator, 0 to a contractor). This violation is an unwarrantable failure to comply 

with a mandatory standard. 

Petition at 13-15. 

For gravity, likelihood of injury was found to be “reasonably likely,” and injury could 

reasonably be expected to result in “lost workdays or restricted duty,” affecting eight persons. Id. 

at 13. The violation was found to be significant and substantial. Id. Negligence was found to be 

“high.” Id. The order was terminated on January 20, 2022, when 

The cited accumulations have been removed and adequately rock dusted. The cited 

conditions took approximately 10 men per shift and 24 hours to correct for a total 

of 720 man hours. 

Id. at 16. 

Included with the Petition is a narrative supporting the special assessment. The 

narrative read: 

000555460 

Assessment Control Number 

Narrative Findings for a Special Assessment 

Civil monetary penalties for violations of the Federal Mine Safety and Health Act 

of 1977 (the Mine Act) and mine safety and health standards are determined using 

the six criteria set forth in 30 C.F.R. Part 100. The Mine Safety and Health 

45 FMSHRC Page 64
Administration (MSHA) may elect to waive the regular assessment formula 

contained in § 100.3 if the conditions concerning the violation warrant a special 

assessment under § 100.5. 

In December 2021 and January 2022, MSHA issued two § 104(d)(2) Orders to Iron 

Cumberland LLC for violations of 30 C.F.R. § 75.400 at the Cumberland Mine. 

MSHA inspectors observed extensive accumulations of combustible material on 

the 6 Mains West #1 Belt, including loose coal, coal fines, and float coal dust. The 

material was observed on the mine floor, roof, ribs and on equipment. In multiple 

places, the material was in contact with moving belt rollers, and in one location was 

warm to the touch and emitting smoke. These conditions provided fuel for a mine 

fire and could have resulted in serious injuries to multiple miners. 

MSHA is proposing special assessments under § 100.5 for these Orders because 

they exhibited a high degree of negligence, presented significant risk of injury, and 

are part of an extensive history of accumulation violations at this mine. This 

indicates the need for greater deterrence than the regular assessment penalties 

would provide. Based on the six criteria set forth in § 100.3(a) and the information 

available to the Office of Assessments, it is proposed that Iron Cumberland LLC 

be assessed the following civil penalties: 

§ 104(d)(2) 

Order No. 

Condition or Practice Proposed Penalty 

9257780 Accumulations were observed in 10 locations, 

measuring up to 1,200 feet long. In seven 

locations, the material was in contact with 

bottom belt rollers, one of which was creating 

frictional heat and emitting visible smoke, 

$21,100 

9257810 Accumulations were observed in 26 locations, 

on previously rock dusted surfaces, measuring 

up to 2,750 feet long. In 18 locations, belt 

rollers were turning in accumulations. 

$59,100 

MSHA has carefully evaluated the conditions cited, relevant information, and the 

inspector’s evaluation. The proposed penalty reflects MSHA’s appraisal of all the 

facts presented. The attached proposed assessment includes the number of 

previously assessed violations and the size of the mine and the company. Under 

§ 100.3(h), MSHA presumes that the operator’s ability to continue in business will 

not be affected by the assessment of the civil penalties. 

Petition at 7. 

 

45 FMSHRC Page 65
The Secretary’s Monetary Concessions for the two Section 104(d)(2) orders 

Order 9257780 

The Secretary moves to reduce the assessed penalty for this citation, offering the following 

in support: 

104(d)(2) Order 9257780 was issued for an alleged violation of §75.400. The 

Secretary has proposed a civil penalty of $21,100.00 for this violation. Gravity was 

evaluated as: Reasonably Likely, Lost Workdays or Restricted Duty, 1 Person 

Affected. Consequently, the violation was designated as S&S. Negligence was 

evaluated as high and amounted to an unwarrantable failure to adhere to the cited 

standard. Respondent argues that the specially assessed proposed penalty is 

excessive. As shown on the Special Assessment Narrative Form in Exhibit A of the 

penalty petition, the special assessment was derived by increasing the penalty 

points for likelihood, severity, and negligence (including three unwarrantable 

failure points). However, were the matter to go to hearing, Respondent would 

argue that the facts and evidence would not support the high negligence or 

unwarrantable failure findings. Specifically, Respondent would argue that the 

conditions could have occurred or worsened over a short period of time due to 

the quantity and velocity of air on the belt and that the evidence would not 

prove that the conditions observed by the inspector were indicative of the 

conditions at the time of the most recent examination. In consideration of the 

facts, the available evidence, Respondent’s arguments, the risks inherent in 

litigation and Respondent’s agreement to accept the order as issued, the Secretary 

agrees to settle this matter by affirming the order as issued and agreeing to a reduced 

penalty of $14,172.00. The regular assessment amount for the order as issued would 

have been $5,293.00 and, had the violation been cited as a moderate negligence 

104(a) citation, the Part 100 penalty would have been $1,421.00. Thus, the agreed 

upon compromised amount of $14,172.00 is a fair and reasonable amount. 

Mot. to Approve Settlement at 3-4 (emphasis added). 

Order No. 92457810 

The Secretary moves to reduce the assessed penalty for this citation, offering the following 

in support: 

104(d)(2) Order 9257810 was issued for an alleged violation of §75.400. The 

Secretary has proposed a civil penalty of $59,100.00 for this violation. Gravity was 

evaluated as: Reasonably Likely, Lost Workdays or Restricted Duty, 8 Persons 

Affected. Consequently, the violation was designated as S&S. Negligence was 

evaluated as high and amounted to an unwarrantable failure to adhere to the cited 

standard. Respondent argues that the specially assessed proposed penalty is 

excessive. As shown on the Special Assessment Narrative Form in Exhibit A of the 

penalty petition, the special assessment was derived by increasing the penalty 

45 FMSHRC Page 66
points for likelihood, severity, and negligence (including three unwarrantable 

failure points). However, Respondent would argue at hearing that the high 

negligence and unwarrantable failure findings are not supported. Specifically, 

Respondent argues that miners were working on the cited conditions when the 

order was issued and that the examination books show that corrective actions 

were being taken on an ongoing basis. Furthermore, because a large portion 

of the mine had recently been sealed, increased air velocity on the belt caused 

coal fines to be blown off the belt and the conditions would change significantly 

over a short period of time. In consideration of the facts, the available evidence, 

Respondent’s arguments, the risks inherent in litigation and Respondent’s 

agreement to accept the order as issued, the Secretary agrees to settle this matter by 

affirming the order as issued and agreeing to a reduced penalty of $34,166.00. The 

regular assessment amount for the order as issued would have been $14,172.00 and, 

had the violation been cited as a moderate negligence 104(a) citation, the Part 100 

penalty would have been $4,268.00. Thus, the agreed upon compromised amount 

of $34,166.00 is a fair and reasonable amount. 

Motion at 4-5 (emphasis added). 

Analysis 

The Cumberland Mine has a compliance problem with 30 C.F.R. 75.400. 

Titled “Accumulation of combustible materials,” this standard requires that “Coal dust, 

including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to accumulate in active workings, or on 

diesel-powered and electric equipment therein. 

The 104(d)(2) Orders for this matter, Docket No. PENN 2022-0084 

 Order No. 9257780 was issued on December 20, 2021, for a violation of 30 C.F.R. 

§ 75.400. Titled “Accumulation of combustible materials,” the standard specifies that 

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, 

and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on diesel-powered and electric equipment 

therein. 

In what can be fairly described as a staggering number of individual violation 

instances, this Order, No. 9257780, identified 10 separate instances of 30 C.F.R § 75.400 

violations, the details of which will be discussed. By the time this Order was issued the 

number of cited violations of this standard had risen to 71 (seventy-one). With the addition of 

yet another 30 C.F.R § 75.400 violation, by the issuance of Order No. 92457810, that number 

became 78 (seventy-eight) such violations. Recall that as of June 17, 2021, the number of 

cited violations was 57 (fifty-seven). Thus, in the six-month interval, the Cumberland Mine 

was cited at least another 15 times for violating this standard. 

45 FMSHRC Page 67
Notable aspects of Order No. 927780 

The Respondent’s argument is that “the facts and evidence would not support the high 

negligence or unwarrantable failure findings. Specifically, Respondent would argue that the 

conditions could have occurred or worsened over a short period of time due to the quantity and 

velocity of air on the belt and that the evidence would not prove that the conditions observed by 

the inspector were indicative of the conditions at the time of the most recent examination.” Motion 

at 3-4. 

This claim is hard to believe, and the Secretary apparently takes the same view, as he is 

unwilling to walk away from the issuing inspector’s negligence and unwarrantable failure 

designations. There are several reasons to look askance at the Respondent’s claim. For starters, 

there is the inspector’s undisputed finding of ten separate instances of 75.400 violations for 

this Order alone. Any one of the conditions would have justified issuance of a violation of the 

standard. Then too, among the ten instances, seven (7) involved bottom rollers turning in loose 

coal and coal fines. These accumulations were not restricted to bottom rollers; the inspector noted 

that “[a]ccumulations [we]re present on mine floor, roof, ribs, structure and water line on previous 

rock dusted surfaces” at the 11 block to 6 Mains West #1 Transfer, and that those “accumulations 

measured 10 foot wide by 2750 feet long.” Petition at 13-15 (emphasis added). 

And one can gain a true sense of the enormity of the violations for this order as it took 

“[s]even Hourly miners, two supervisors and three rock dusters work[ing] to correct [the violative] 

conditions for 3 hours for total of 36 man hours to remove[ ] all accumulations and rock dust the 

area.” Petition for a Civil Penalty at 10-11 (emphasis added). 

With the Order being issued on December 20, 2021, it is noteworthy that none of the 

excuses later raised by the Respondent’s attorney, were advanced when the inspector held a safety 

and health conference on January 6, 2022. Yet, one would have expected those later-raised claims 

to have been raised at the conference, because they were factually-based excuses which did not 

require an attorney’s expertise, the point being that, if they existed, the mine operator had amply 

opportunity post the Order’s issuance to learn of and assert the claim. With ten separate instances 

found, that number by itself, casts doubt on the claim that they all “could have occurred or 

worsened over a short period of time.” 

With all of the foregoing, MSHA understandably reviewed the Order to determine whether 

a special assessment was appropriate. Cogently, that review led to the conclusion that it was 

warranted. MSHA noted that its inspector “observed extensive accumulations of combustible 

material on the 6 Mains West #1 Belt, including loose coal, coal fines, and float coal dust. The 

material was observed on the mine floor, roof, ribs and on equipment. In multiple places, the 

material was in contact with moving belt rollers, and in one location was warm to the touch and 

emitting smoke. These conditions provided fuel for a mine fire and could have resulted in serious 

injuries to multiple miners.” Petition at 7. On the basis of those findings, MSHA concluded that 

the multiple instances “exhibited a high degree of negligence, presented significant risk of injury, 

and [we]re part of an extensive history of accumulation violations at this mine. This indicates the 

need for greater deterrence than the regular assessment penalties would provide.” Id. 

45 FMSHRC Page 68
It must be asked whether in circumstances such as this do penalty reductions of this order 

faithfully carry out Congress’ express direction that penalties for violations are to be of such a 

magnitude that mine operators are sufficiently incentivized to comply with the safety and health 

standards or whether reduced penalties are a cheaper alternative to compliance. 

Notable aspects of Order No. 92457810 

Barely a month after the same MSHA inspector issued his Order, No. 927780, he issued 

another order for violations of the same safety standard, 30 C.F.R. § 75.400, addressing 

accumulations of combustible materials. This time the inspector found, not 10, but 26 (twentysix) separate instances of the standard being violated. More dramatic than the effort required to 

abate the violative accumulations found for Order No. 9257780, it “took approximately 10 men 

per shift and 24 hours to correct [the accumulations] for a total of 720 man hours.” Petition for 

a Civil Penalty at 16 (emphasis added). 

As with Order No. 927780, the Respondent again contends that “the high negligence and 

unwarrantable failure findings are not supported. Specifically, Respondent argues that miners 

were working on the cited conditions when the order was issued and that the examination books 

show that corrective actions were being taken on an ongoing basis. Furthermore, because a large 

portion of the mine had recently been sealed, increased air velocity on the belt caused coal fines 

to be blown off the belt and the conditions would change significantly over a short period of 

time.” Motion at 4-5. 

Given the staggering number of individual instances it is hard to take the Respondent’s 

claims seriously. Several observations cast doubt on those claims. To begin, it is noteworthy that 

both Order No. 927780 and Order No. 9257810, issued just a month apart, stem from 

accumulations on the same belt, the 6 Mains West #1 belt. While each of the 26 instances 

recorded for Order No. 9257810 make out violations, some are particularly noteworthy. For 

example, instance number 2 recorded accumulations 8 feet wide by 1500 feet long. Others were 

also extremely long: instance number 5 at 750 feet; instance no. 6 at 500 feet, instance no 14 at 

125 feet. Eleven (11) of the violations involved loose coal and coal fines in contact with a bottom 

roller. 

A disaster waiting to happen?2

On several occasions the Commission has spoken to the importance of this standard. 

In San Juan Coal, 29 FMSHRC 125, (March 2007), it noted: 

Repeated similar violations may be relevant to an unwarrantable failure 

determination to the extent that they serve to put an operator on notice that greater 

efforts are necessary for compliance with a standard. Amax Coal Co., 19 FMSHRC 

846, 851 (May 1997); see also Consol, 23 FMSHRC at 595 (“a high number of past 

violations of section 75.400 serve to put an operator on notice that it has a recurring 

safety problem in need of correction.”) (citations omitted). The purpose of 

2 A mining disaster is defined as an incident with 5 or more fatalities. 

https://wwwn.cdc.gov/NIOSH-Mining/MMWC/MineDisasters/Count

45 FMSHRC Page 69
evaluating the number of past violations is to determine the degree to which those 

violations have “engendered in the operator a heightened awareness of a serious 

accumulation problem.” Mid-Continent Res., Inc., 16 FMSHRC 1226, 1232 (June 

1994); see also Consol, 23 FMSHRC at 595. The Commission has also recognized 

that ‘past discussions with MSHA about an accumulation problem serve to put an 

operator on heightened scrutiny that it must increase its efforts to comply with the 

standard.’” Consol, 23 FMSHRC at 595 (citations omitted). 

Id. at 131. 

In Mid-Continent Resources, 16 FMSHRC 1218 (June 1994), again addressing 30 C.F.R 

§ 75.400, the Commission rejected the idea that where the coal in issue is of low combustibility, 

that does not prevent a significant and substantial finding as “coal is, by its nature, combustible.” 

Id. at 1222. 

In another Mid-Continent Resources case, 16 FMSHRC 1226 (June 1994), the 

Commission noted that section 75.400 is violated “ ‘when an accumulation of combustible 

materials exists.’ Old Ben Coal Co., 1 FMSHRC 1954, 1956 (December 1979); see also Old Ben 

Coal Co., 2 FMSHRC 2806, 2808 (October 1980). Id. at 1229. The Commission has further 

explained that a prohibited “accumulation” refers to a mass of combustible materials that could 

cause or propagate a fire or explosion. Old Ben, 2 FMSHRC at 2808.” Such combustible 

material includes float dust, coal fines, and lump coal.” Id. 

That decision underscored the relevance of a significant history of 75.400 violations, 

noting that the mine “was cited for 170 alleged violations of section 75.400, which should have 

engendered in the operator a heightened awareness of a continuing accumulation problem. S. Ex. 

M-3. Cf. Peabody Coal Co., 14 FMSHRC 1258, 1259, 1264 (August 1992); Youghiogheny & 

Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 1987).” Id. at 1232. 

If a tragedy occurs, this decision tells the tale of its avoidable origin. With the inspector 

diligently noting the many, many instances of accumulations, and with MSHA then taking those 

matters with the seriousness the conditions demanded, by issuing special assessments, the matter 

was then in the hands of the Secretary of Labor to evaluate the matters. The Secretary did so, but 

in a manner, at least to the Court, that was at odds with itself, as the Secretary stood by the 

inspector’s evaluations, while significantly reducing the special assessment penalties. Though the 

Secretary touts that, if regularly assessed, the penalties would have totaled $19,465.00, that is the 

wrong comparison. MSHA did not apply a regular assessment to the Orders and understandably 

so, as the special assessment totaled $80,200.00. 

As noted by the Third Circuit Court of Appeals in its February 2008 decision regarding 

the Cumberland Mine: “[t]he mine has the unfortunate distinction of being “gassy,” which means 

that it typically liberates more than 1,000,000 cubic feet of methane in a twenty-four hour period 

and consequently requires spot inspection every five days by representatives of MSHA.” 

Cumberland Coal Resources, 515 F.3d 247, 249 (3d Cir. 2008). 

Given the disquieting number of 30 C.F.R § 75.400 violations issued over the past two 

years at this high methane producing mine, 78 times, not to mention that 26 of those occurred 

45 FMSHRC Page 70
within a month of these two Orders, it is difficult to appreciate the justification for the 40% (forty 

percent) reduction in this instance. 

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. 

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 71
In the context of settlement motions, “facts” have an atypical meaning.3 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). 

As the motion meets the Commission’s standard for approving settlement motions and as 

the Court is duty-bound to faithfully apply the Commission’s present decisional holdings 

regarding review of settlement motions according to the way the Commission has interpreted its 

review responsibilities under the unique review provision set forth in section 110(k) of the Mine 

Act and, applying those holdings, the Court determines that this settlement, as with all settlement 

motions presented to this Court post-AmCoal, also meets the Commission’s review criteria and 

therefore the motion is to be approved as appropriate. 

Typically found in the Secretary’s motions for approval of settlement is language along 

the lines that the parties seek to have the Court accept that it acknowledges and accepts the 

explanation for the agreed upon settlement contained in the parties’ settlement motion and 

amendments. In this instance, the Secretary includes as proposed language that the Court has 

“considered the representations and documentation submitted, f[ound] that the agreed-upon 

penalties are reasonable, and conclude[d] that the proposed settlement is appropriate under the 

criteria set forth in Section 110(i) of the Act.” Draft Order at 2. The Court cannot subscribe to 

 

3 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 72
such language.4 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). 

The Court has considered the motion in the context of comparing it with the 

Commission’s AmCoal decision and finds that it meets that decision’s standard of review. 

Accordingly, on that basis only, the motion to approve settlement is GRANTED, the assessed 

penalties for the orders contained in this docket are MODIFIED as set forth above and 

Respondent Iron Cumberland, LLC, is ORDERED to pay the Secretary of Labor the sum of 

$48,338.00 within 30 days of this decision.5 

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

4 Nor does the Court endorse, or agree with, the assertions commonly found in the 

Secretary’s motions for approval of settlements in which the Secretary claims that a final 

resolution of this matter in which all violations are resolved is of significant enforcement value 

to the Secretary. Neither does the Court endorse or agree with the Secretary’s claim that the 

modifications to the citations are immaterial, nor with the accompanying claim that the 

Secretary’s evaluation of these citations, as modified, remain preserved for future enforcement 

actions. The Court has never been informed of any such value. Such boilerplate claims are 

almost always hollow, in view of the actual modifications and penalty reductions that makeup 

these motions. 

5 It is preferred that penalties 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 important to include Docket and A.C. Numbers with the payment.

45 FMSHRC Page 73
Distribution: 

Robert S. Wilson, Esq., Office of the Solicitor, Division of Mine Safety and Health 

201 12th Street South, Suite 500, Arlington, Virginia 22202-5450 

wilson.robert.s@dol.gov 

R. Henry Moore, Esq., Fisher Phillips, Six PPG Place, Suite 830, Pittsburgh, Pennsylvania 15222 

hmoore@fisherphillips.com 

45 FMSHRC Page 74
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 

January 24, 2023 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2022-0554 

AC No. 46-08626-560349 

Mine: Tug Fork Preparation Plant 

 

DECISION APPROVING SETTLEMENT 

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 Secretary has filed the 

Motion to Approve Settlement for the citations and orders involved in this matter. The parties 

move to modify one citation, as stated below. The total penalty would be reduced from the 

original assessed amount of $1,365.00 to $511.00. This represents a 63% reduction in the 

overall penalty for this docket. 

Citation/Order MSHA’s 

Proposed 

Penalty 

Settlement 

Amount 

Other modifications to citation/order 

9566748 $1,069.00 $215.00 Violation of 30 C.F.R. § 77.1606 (c). 

Penalty reduction of 80% 

9566745 $296.00 $296.00 Violation of 30 C.F.R. § Sustained as 

Issued - No penalty reduction 

TOTAL $1,365.00 $511.00 Total penalty reduction of 63% 

 Citation No. 9566748 was regularly assessed at $1,069.00. It involved a nowadmitted violation of 30 C.F.R. § 77.1606(c). That standard pertains to loading and haulage 

equipment and its inspection and maintenance. The cited subsection (c) provides that 

“[e]quipment defects affecting safety shall be corrected before the equipment is used.” 

 

The citation described the condition as follows: “The Co. No. 541, 733D Caterpillar 

haul truck, is not being maintained free of defects affecting safety, as required. When 

checked, the offside railing at the top of the ladder is broke free in all but one spot, allowing 

the railing to move back and forth. This truck is operated 5 days per week, 12 hours per 

day. Left uncorrected, this condition, will expose the miner(s) to hazards associ[iat]ed with 

45 FMSHRC Page 75
falling from elevated heights, causing permanently disabling injury[] to the miner(s). From 

the ground to the landing where the railing is broke free is approx. 8-9 feet. The operator 

immediately removed the truck from service until repairs are made.” 

Petit. for civil penalty at 10. 

Evaluating the violation, the inspector marked the injury as reasonably likely to 

occur with permanently disabling injuries. Accordingly, the inspector listed the violation 

as “significant and substantial.” Negligence was marked as ‘low.’ Id. 

The violation was terminated the same day with the inspector stating that “[a] 

qualified person has replaced/corrected the condition, the railing now appears to be secure 

to the machine.” Id.

 In support of the 80% (eighty percent) reduction in the penalty, resulting in a penalty 

of $215.00, from the original regular assessment of $1,069.00, the Secretary offers the 

following: 

The Respondent contends that the gravity was over-evaluated and should 

not have been issued as “reasonably likely” and “S&S”. Respondent would 

argue at hearing that the condition cited is not a discrete safety hazard to 

miners. Respondent contends that the equipment operator is not routinely 

exposed to the off-side railing, which is not in the access path to the 

operator’s cab. Additionally, the Respondent would argue that the railing 

was loose, but still intact and would still perform the necessary duties to 

prevent a miner from falling from the elevated platform. The Secretary has 

exercised his discretion to modify the significant and substantial 

designation associated with citation #9566748 and to modify the penalty 

per part 100.3 accordingly. 

Motion at 3. 

The Court is dismayed that the Secretary has bought into the Respondent’s argument 

that the hazard is unlikely to occur. Given all the attendant conditions associated with this 

violation: that the offside railing at the top of the ladder was broken free in all but one spot, 

allowing the railing to move back and forth and given that the truck is operated 5 days per 

week, 12 hours per day and given that a fall involved 8 to 9 feet, a height which presumptively 

would result in a permanently disabling injury, the Secretary’s agreement is hard to understand. 

Not one of the conditions noted by the inspector is disputed. 

 

The Court notes that if the inspector had taken a photograph of the hazardous condition 

he found, the Secretary might have been foreclosed from agreeing to this de minimis penalty. 

That agreement is coupled with the Secretary’s oft-claimed assertion that he can remove 

a significant and substantial designation with impunity. That is incorrect. In a motion, the 

Secretary can assert that a violation was unlikely to occur, but it is only by that redesignation 

45 FMSHRC Page 76
that a non-significant and substantial violation may follow. As the Court has informed many 

times before, the cases cited by the non-attorney representative do not stand for the notion that 

he can independently drop a significant and substantial designation, as if by an edict. 

The two cases continually cited by the Secretary, Am. Aggregates of Michigan, Inc., 42 

FMSHRC 570, 576-79 (Aug. 2020) and Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879-

80 (June 1996)) do not support the claim that the Secretary may peremptorily delete a 

significant and substantial finding. Such a modification can only occur upon determining that at 

least one of the two elements of such a finding is missing: that a reasonably likelihood of 

reasonably serious injury was not present. 

A seemingly impenetrable wall, as noted above, CLRs continue to assert that “[t]he 

Secretary has exercised [the] discretion to modify the significant and substantial designation 

associated with citation #9566748 and to modify the penalty per part 100.3 accordingly. The 

Secretary may exercise that discretion as part of a settlement. Am. Aggregates of Michigan, Inc., 

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

879-80 (June 1996)).” Motion at 3. 

Mechanicsville only holds that the judge may not essentially make a prosecutorial 

decision to designate a citation as S&S in the first instance, as that is an exercise of enforcement 

authority reserved for the Secretary. Thus, presented with a citation with no significant and 

substantial designation, a judge may not add that designation on his or her own.1 Am. 

Aggregates simply echoes Mechanicsville, holding “[w]hether a violation is S&S is a matter in 

the first instance of prosecutorial discretion. The Mine Act, therefore, recognizes the particular 

expertise of MSHA in judging whether a violation is S&S. Indeed, if MSHA does not charge an 

S&S violation, the Commission cannot make an S&S finding. Mechanicsville Concrete, Inc., 18 

FMSHRC 877, 879-80 (June 1996). Commission Judges do not have the discretion to make 

such elevated finding unless it is asserted in the first instance by MSHA.” Am. Aggregates at 

576 (emphasis added). 

 Make no mistake, here both citations in this Appalachian Resource docket were 

designated by the MSHA inspector as significant and substantial. Thus, clearly, Am. Aggregates

and Mechanicsville do not apply. The Court does not criticize the CLRs for habitually inserting 

this claim; no doubt they do it at the behest of attorneys for the Secretary, as the CLRs are not 

attorneys, and it is unlikely that they all developed an analysis of the cases cited on their own. 

That the Secretary may have this position on its wish list is not the same thing, as Commission 

decisions have not, up to this point, agreed with that claim. The Court has pointed this out 

 

1 In Mechanicsville, 18 FMSHRC 877, (June 1996), the Commission held that it agreed 

“with the Secretary that the judge erred in determining on his own initiative that the violation 

was S&S. ... [Referring to another of its decisions the] Commission reasoned that the 

modification was not appropriate because the judge added new findings to create a section 

104(b) order. ... Here, the judge similarly 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 879-880. (citations omitted). 

45 FMSHRC Page 77
several times before, but no doubt the CLRs will continue to cite those inapposite holdings, 

because they are told to do so. 

The unsafe railing violation must also be viewed in context. 

Earlier on the same day as the defective railing violation was found, the inspector found 

a second, significant, violation on the same piece of equipment. The inspector found that the 

equipment operator of this haul truck was not wearing the seat belt, citing 30 C.F.R. §77.403-

1(g), with its requirement that “[s]eat belts required by § 77.1710(i) shall be worn by the 

operator of mobile equipment required to be equipped with ROPS by § 77.403-1.” 

As with the other violation associated with this truck, the inspector marked an injury 

occurrence as ‘reasonably likely’ to occur, producing lost workdays or restricted duty, although 

in his evaluation he stated that the “condition will cause and or contribute to an accident of a 

reasonably serious nature, when the driver will receive fractures and lacerations, resulting in at 

least lost workdays or restricted duty.” Petit at 9. 

Thus, two noteworthy hazards were at play with the same truck, hazards which were not 

divorced from one another. Both, at least by the view of the issuing inspector, were significant 

and substantial. To the Court, the distinguishing feature is that the seatbelt violation only 

involved $296.00, while the railing violation was assessed at $1,069.00. As the Court has 

remarked in numerous cases, it does appear that the larger assessments are the ones most often 

subjected to significant penalty reductions, with the minimal penalties more often paid as 

assessed. Whether this frequent result is mere happenstance is unknown. 

Reasonable Inquiry is not Permitted 

Despite the Court’s analyses and expressed concerns for Citation No. 9566748, 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 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. 

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. 

45 FMSHRC Page 78
(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.2 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). 

As the motion meets the Commission’s standard for approving settlement motions and as 

the Court is duty-bound to faithfully apply the Commission’s present decisional holdings 

2 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 79
regarding review of settlement motions according to the way the Commission has interpreted its 

review responsibilities under the unique review provision set forth in section 110(k) of the Mine 

Act and, applying those holdings, the Court determines that this settlement, as with all settlement 

motions presented to this Court post-AmCoal, also meets the Commission’s review criteria and 

therefore the motion is to be approved as appropriate. 

Typically found in the Secretary’s motions for approval of settlement is language along 

the lines that the parties seek to have the Court accept that it acknowledges and accepts the 

explanation for the agreed upon settlement contained in the parties’ settlement motion and 

amendments. In this instance, the Secretary includes as proposed language that the Court has 

“considered the representations and documentation submitted, f[ound] that the assessment is 

reasonable and . . . conclude[d] that the proposed settlement is appropriate under the criteria set 

forth in section 110(i) of the Act” Draft Order at 3. The Court cannot subscribe to such 

language.3 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). 

The Court has considered the motion in the context of comparing it with the 

Commission’s AmCoal decision and finds that it meets that decision’s standard of review. 

Accordingly, on that basis only, the motion to approve settlement is GRANTED, Citation No. 

9566748 is MODIFIED as set forth above and Respondent Appalachian Resource West 

Virginia, LLC, is ORDERED to pay the Secretary of Labor the sum of $511.00, as opposed to 

the initial total proposed penalty of $1,365.00, within 30 days of this decision.4

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

3 Nor does the Court endorse, or agree with, the assertions commonly found in the 

Secretary’s motions for approval of settlements in which the Secretary claims that a final 

resolution of this matter in which all violations are resolved is of significant enforcement value 

to the Secretary. Motion at 2 (emphasis added). Such boilerplate claims are almost always 

hollow, in view of the actual modifications and penalty reductions that makeup these motions. 

4 It is preferred that penalties 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 important to include Docket and A.C. Numbers with the payment.

45 FMSHRC Page 80
Distribution: 

K. Brad Oakley, Esq., Jackson Kelly PLLC, 100 W. Main Street, Suite 700

Lexington KY 40507, kboakley@jacksonkelly.com

David C. Trent, Conference & Litigation Representative, U.S. Department of Labor, MSHA 

4499 Appalachian Highway, Pineville WV 24874 Trent.david@dol.gov 

45 FMSHRC Page 81

ADMINISTRATIVE LAW JUDGE ORDERS
45 FMSHRC Page 82
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

January 6, 2023 

ORDER GRANTING TEMPORARY REINSTATEMENT 

OF GEORGE PORTER 

Before: Judge Lewis 

Pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 

U.S.C. § 801, et. seq., and 29 C.F.R. § 2700.45, the Secretary of Labor (“Secretary”) on 

December 15, 2022, filed an Application for Temporary Reinstatement of miner Frank George 

Porter (“Complainant”) to his former position as a heavy equipment operator with Pacer 

Minerals, LLC, (“Respondent”) at Respondent’s mine pending final hearing and disposition of 

the case. 

According to Commission Rule 45, a request for hearing must be filed within 10 days 

following receipt of the Secretary’s application for temporary reinstatement. 29 C.F.R. 

§ 2700.45(c). The Application for Temporary Reinstatement was served on Respondent by

electronic mail on December 14, 2022. The Respondent has not filed a timely Request for

Hearing.

The Secretary has found that the Complaint was not frivolously brought and, as explained 

below, has provided evidence supporting that determination. Therefore, consistent with Section 

105(c) of the Act, the temporary reinstatement of George Porter is granted. 

Law and Regulations 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act and provides that a miner may file a complaint with the 

Secretary alleging discrimination. 30 U.S.C. § 815(c)(1-2). The plain language of the Act also 

provides that “if the Secretary finds that the complaint was not frivolously brought, the 

Commission, on an expedited basis upon application by the Secretary, shall order the immediate 

SECRETARY OF LABOR, 

 MINE SAFETY AN D HEALTH 

 ADMINISTRATION (MSHA) obo 

 GEORGE PORTER 

 Complainant, 

v. 

PACER MINERALS, LLC, 

 Respondent 

 TEMPORARY REINSTATEMENT 

Docket No. CENT 2023-0058 

MSHA No.: DENV-CD-2023-01 

Mine: Pink Monster 

Mine ID: 39-01653 

45 FMSHRC Page 83
reinstatement of the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2) 

(emphasis added). 

 The Commission’s regulations control the temporary reinstatement procedures. Once an 

application for temporary reinstatement is served on the person against whom relief is sought, 

that person shall notify the Chief Administrative Law Judge or his designee within 10 calendar 

days whether a hearing on the application is requested. 29 C.F.R. § 2700.45(c). If no hearing is 

requested, the Judge assigned to the matter shall review immediately the Secretary’s application 

and, if based on the contents thereof, the Judge determines that the miner’s complaint was not 

frivolously brought,1 shall issue immediately a written order of temporary reinstatement. Id. 

 If there is a hearing, the Judge must determine whether the complaint of the miner “is 

supported by substantial evidence and is consistent with applicable law.”2 Sec’y of Labor on 

behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). In the instant 

case, however, the Respondent has not timely filed a request for hearing. Thus, Commission 

Procedural Rule 45(c) compels me to review the Secretary’s determination that the complaint in 

this matter was not frivolously brought. See 29 C.F.R. § 2700.45(c). 

Disposition 

 The Secretary has provided the evidentiary basis for his determination that the complaint 

in this matter has not been frivolously brought. The Act requires the Secretary to investigate the 

miner’s complaint of discrimination. 30 U.S.C. § 815(c)(2). The Secretary’s application includes 

the Complaint filed by Complainant (Exhibit “2” to the Application) and the Declaration of 

Special Investigator Daniel Scherer indicating that this was done (Exhibit “1.”) 

 Mr. Scherer’s Declaration provides facts in support of the Secretary’s conclusion that the 

complaint was not frivolously brought: 

1. My investigation of this case, which included witness interviews and a review of 

documents that Pacer provided, disclosed the following: 

1

 The Act’s legislative history suggests that a complaint is not frivolously brought if it 

“appears to have merit.” S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In addition to 

Congress’ “appears to have merit” standard, the Commission and the courts have also equated 

“not frivolously brought” to “reasonable cause to believe” and “not insubstantial.” Sec'y of Labor 

on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 

738, 747 & n.9 (11th Cir. 1990). 

2

 “Substantial evidence” means “such relevant evidence as a reliable mind might accept 

as adequate to support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)). 

45 FMSHRC Page 84
A. At all relevant times, Pacer operated the Pink Monster Mine near Pringle, 

S.D. (the “Mine”). MSHA has inspected Pacer’s operations on numerous 

occasions and Pacer is an “operator” under Section 3(d) of the Mine Act. 

B. Pacer’s products, which include feldspar and mica, enter commerce, or 

its operations or the Mine’s products affect commerce. 

C. Porter was, at all relevant times, employed as a heavy equipment operator 

by Pacer and was, therefore, a “miner” under Section 3(g) of the Mine 

Act. 

D. On October 24, 2022, Porter timely filed a discrimination complaint with 

MSHA alleging that Pacer discharged him in violation of section 105(c) 

of the Mine Act. 

2. Porter’s discrimination complaint arose from the following circumstances: 

A. Porter worked for Pacer as a safety manager beginning in August 2021. 

At the time of his discharge, he worked 40 hours per week and earned 

$25.00 per hour as a heavy equipment operator. 

B. In the fall of 2022, Pacer assigned Porter to work at the Mine after he had 

worked at another of the company’s mines, the White Elephant, that 

Pacer subsequently closed. 

C. On September 15, 2022, Porter and a colleague, Mark Hughes 

(“Hughes”), used heavy equipment to clear blasted overburden out of the 

Mine’s pit. Unbeknownst to them, they worked near where Pacer’s 

blasting contractor, Century Blasting Service, LLC (“Century”), had set 

explosives in six holes for blasting. Mine Manager Tony Boggs 

(“Boggs”) knew that the explosives were present but did not tell Porter. 

Instead, he directed them to work away from the explosives’ location 

without explaining why. Porter unwittingly worked near undetonated 

charges for several hours. 

D. The explosives remained from an earlier blast on Pink Monster’s upper 

level. Century drilled and loaded holes for two shots, one above the other. 

However, the lower level holes – near where Porter and Hughes worked 

– were not tied into the blast sequence of the upper level holes. Neither 

Pacer nor Century noticed that this had occurred. 

E. Porter reported this incident to Pacer General Manager Ryan Fredsall 

(“Fredsall”) on September 22, 2022. 

F. Fredsall and the company’s human resources director/accountant, 

Tamera Sutherland, investigated the incident but did not discipline 

anyone. 

G. On September 30, 2022, Pacer laid off Porter. 

H. Porter did not work at the Mine again. 

Dec. of Daniel Scherer, December 14, 2022 (Ex. “1” to App. For Temp. Reinst.) 

 The facts provided in support of the agency’s decision, if true, would establish 

jurisdiction, a timely complaint of discrimination, and that Complainant engaged in protected 

45 FMSHRC Page 85
activity and suffered an adverse action close in time to the protected activity, under 

circumstances that provide a reasonable cause to believe that there was a causal nexus between 

his participation in an MSHA investigation and his termination. 

Findings and Conclusion 

 At this stage, the facts alleged by the Secretary are undisputed. Therefore, I find that the 

complaint for discrimination has not been frivolously brought, and that Complainant George 

Porter is entitled to Temporary Reinstatement under the provisions of Section 105(c) of the Act. 

ORDER 

It is hereby ORDERED that George Porter be immediately TEMPORARILY 

REINSTATED to the position he held on the date of his discharge from Pacer Minerals, LLC, 

or a comparable position within the same commuting area and at the same rate of pay and 

benefits he received prior to his discharge. 

This Order SHALL remain in effect until such time as there is a final determination in 

this matter by hearing and decision, approval of settlement, or other order of this court or the 

Commission. I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. 

§ 2700.45(e)(4). The Secretary shall provide a report on the status of the underlying 

discrimination complaint as soon as possible. 

/s/ John Kent Lewis 

John Kent Lewis 

 Administrative Law Judge 

Distribution: 

Ryan Fredsall, General Manager, Pacer Minerals, 25429 U.S. Highway 385 Custer, S.D. 57730 

(ryan@pacerminerals.com) 

Matthew B. Finnigan. Esq., Office of the Solicitor, 1244 Speer Blvd., Suite 515 Denver, CO 80204-

3516 (finnigan.matthew@dol.gov) 

George Porter, 12066 Hoover Court, Custer, SD 57730, (georgeporter502@yahoo.com) 

45 FMSHRC Page 86