1 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

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

July 3, 2023 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING: 

 MINE SAFETY AND HEALTH 

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

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

 

 v. 

 

MARSHALL COUNTY COAL, Mine: Marshall County Mine 

 RESOURCES, INC.,

 Respondent 

DECISION APPROVING SETTLEMENT

Before: Judge Moran

This case is before the Court upon a Petition for Assessment of Civil penalty under

section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The

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

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

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

Citation 

No.

Originally 

Proposed 

Assessment

Settlement 

Amount Modification 

WEVA 2023-0214

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

43% reduction in penalty

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

Another 43% penalty reduction

9581077 $3,820.00 $1,152.00 

Modify Severity from "Fatal" to "Lost 

Workdays or Restricted Duty" 

70 % reduction in penalty

Total $8,239.00 $3,660.00 

56% overall drop in penalty from the 

regularly assessed amount

MSHA inspector Cody John Tominack, diligently performing his inspection 

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

1 None of the “CLRs” are attorneys. As such they are not licensed to practice law.
2

Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

their tax obligations

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

required by 30 C.F.R. § 75.1725(a).

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

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

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

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

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

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

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

Petition for civil penalty at 5. (emphasis added)

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

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

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

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

The motion seeks to have the negligence reduced to ‘low,’ meaning considerable 

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

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

weekly electrical exam, conducted on December 12, 2022, indicated that the condition did not 
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exist at that time. That the operator was ‘unaware,’ does not constitute considerable mitigation. 

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

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

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

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

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

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

Motion at 3. 

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

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

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

the mouth of the feeder. 

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

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

respect to transportation of men and materials

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the preshift examiner. Motion at 3-4.

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

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

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

was high. This is not a surprise as the inspector observed the violation in real time. Given that, 

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

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

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

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

any person is scheduled to work or travel underground.

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

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

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

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

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

underground.”

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

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

this citation, stating: 

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

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

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

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

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

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

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

inspection started.

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

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

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

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

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

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

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

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

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

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

9581074,

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

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

response from the CLR indicated there was no such error. 
5 

 The Commission has spoken in unambiguous terms about the vital importance of preshift 

exams, stating: 

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

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

containing hazardous conditions. Congress explicitly acknowledged the 

importance of the preshift inspection by making it a longstanding statutory 

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

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

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

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

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

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

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

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

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

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

Legis. Hist.”).

 

Both the Senate Report and the Conference Report emphasized:

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

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

actually recorded, and until hazardous conditions or standards violations are 

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

 

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

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

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

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

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

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

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

Administrative Law Judge Broderick recognized the importance of the preshift

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

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

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

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

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

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

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

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

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

of “fundamental importance in assuring a safe working environment 

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

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

That was then, this is now. 

 
6 

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

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

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

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

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

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

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

(Aug. 2006) 

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

to avoid anomalous results: 

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

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

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

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

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

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

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

Jones and Laughlin Steel, 8 FMSHRC 1058, 1061. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

have sufficient information to fulfill their duty of determining if a settlement of a penalty is fair, 

reasonable, appropriate under the facts, and protects the public interest. Moreover, such 

information permits a Judge to fulfill the duty of articulating reasons for the approval so that the 

process of compromising penalty amounts is transparent, as Congress intended. A Judge who 

properly determines that a settlement motion lacks sufficient information may permissibly 
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referenced as a basis for redesignating the preshift exam injury down from ‘fatal,’ to ‘lost 

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

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

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

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

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

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

2023.

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

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

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

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

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

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

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

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

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

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

role is to act only as a rubber stamp. 

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

AmCoal elements are present. 

Reasonable Inquiry is not Permitted 

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

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

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

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

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

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

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

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

sufficient for approval.

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). 

request further facts from the parties.” AmCoal at 987-988.
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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.
9 

The Court has considered the Secretary’s Motion and approves it solely on the basis of 

the Commission’s decisions in The American Coal Co., 40 FMSHRC 983 (Aug. 2018) and 

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

Commission administrative law judges when reviewing such settlement motions under the 

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

decisions on the scope of a judge’s review authority of settlements, the “information” presented 

in this settlement motion is sufficient for approval. 

WHEREFORE, the motion for approval of settlement is GRANTED. Citation No. 

9581077 is modified to list the gravity of the injury or illness from ‘fatal’ to ‘lost workdays or 

restricted duty.’ The penalties for the three citations in this docket are all reduced as reflected in 

the table above. The Respondent is ORDERED TO PAY a penalty of $3,660.00 within 30 days 

of this order. Upon receipt of payment, this case is DISMISSED. 5

 

 ____________________ 

 William B. Moran

 Administrative Law Judge 

Distribution:

Donald R. Hayhurst, Conference & Litigation Representative, U.S. Department of Labor, 

MSHA, 604 Cheat Road, Morgantown, WV 26508 (hayhurst.donald@dol.gov) 

Wm. Allen McGilton, American Consolidated Natural Resources, Inc., 46226 National Road, 

St. Clairsville, OH 43950. (amcgilton@acnrinc.com) 

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

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

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

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. 

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