i 

August 2021 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

08-16-21 SOLAR SOURCES MINING, LLC LAKE 2017-0099 Page 367 

COMMISSION ORDERS 

08-02-21 WAYNE J. SAND AND GRAVEL, 

INC. 

WEST 2019-0097-RM Page 386 

08-03-21 BUZZI UNICEM USA CENT 2021-0051-M Page 390 

08-03-21 CONSOL PENNSYLVANIA COAL 

COMPANY, LLC 

PENN 2021-0036 Page 393 

08-03-21 DELHUR INDUSTRIES, INC. WEST 2021-0107 Page 396 

08-17-21 MARFORK COAL COMPANY, LLC WEVA 2021-0186 Page 399 
ii 

No Review was Granted or Denied During the Month of August 2021 
COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

August 16, 2021 

 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

DECISION

BY: Althen and Rajkovich, Commissioners 

This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018) (“Mine Act” or “Act”), on appeal from the Administrative Law Judge’s 

decision on remand. It is the second time that the Commission is considering the penalty 

assessment for a citation issued by the Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) to Solar Sources Mining, LLC (“Solar Sources”) for failure to 

provide berms of substantial construction at a dumpsite. 

As instructed by the Commission’s prior decision, 42 FMSHRC 181 (Mar. 2020) (“Solar 

Sources I”), the Judge reassessed the penalty and made additional findings on the section 110(i), 

30 U.S.C. § 820(i), penalty criteria to more fully explain the bases for his assessment. 42 

FMSHRC 329 (May 2020) (ALJ) (“ALJ Rem. Dec.”). Solar Sources appealed the Judge’s 

remand decision, alleging that the Judge erred in assessing a $69,000 penalty and that substantial 

evidence does not support his penalty assessment. 

Having reviewed the Judge’s remand decision, we conclude that the Judge erred again in 

his consideration of the section 110(i) penalty criteria. For the reasons provided herein, we 

vacate the Judge’s penalty assessment. In the interest of judicial economy, we assess a new 

penalty here. As set forth in our analysis below, we conclude that the evidence concerning the 

penalty criteria warrants a penalty of $40,000. 

I.

Factual and Procedural Background 

This proceeding arises from an accident at the Shamrock Mine, an Indiana surface coal 

mine operated by Solar Sources. The facts of the violation are fully set forth in the Judge’s and 

the Commission’s initial decisions. 40 FMSHRC 462, 463-87 (Mar. 2018) (ALJ) (“ALJ Dec.”); 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

SOLAR SOURCES MINING, LLC 

 

Docket No. LAKE 2017-0099 

43 FMSHRC Page 367
Solar Sources I, 42 FMSHRC at 182. Briefly, on June 27, 2016, miner Shawn Standish backed 

his haul truck carrying slurry to the edge of the dump pit. The truck’s rear tires began to sink. 

Standish attempted to accelerate away from the edge but decided to abandon the truck as it 

continued to sink. He climbed from its cab and jumped, landing on the ground and breaking both 

heels and an ankle. The truck fell over the edge and landed upside-down in the pit 47 feet below. 

MSHA issued Citation No. 9102704, pursuant to section 104(d)(1), 30 U.S.C. 

§ 814(d)(1), to Solar Sources for violating 30 C.F.R. § 77.1605(l), which provides: “Berms, 

bumper blocks, safety hooks, or similar means shall be provided to prevent overtravel and 

overturning at dumping locations.” Ex. P-3. MSHA designated the citation as significant and 

substantial (“S&S”)1 and concluded that the operator exhibited an unwarrantable failure2 to 

comply with the standard. 

Solar Sources contested the citation. After a hearing, the Judge affirmed the Secretary’s 

gravity (i.e., highly likely to be fatal) and high negligence findings and affirmed the S&S and 

unwarrantable failure designations. The Judge found that a significant penalty was appropriate 

“based on the high negligence, the serious gravity, and the fact [that] Respondent knew or should 

have known the berm construction was inadequate, yet it made no efforts to correct the 

hazardous condition . . . .” ALJ Dec., 40 FMSHRC at 495. In a footnote, the Judge summarily 

stated that he had considered the other penalty criteria and assessed a penalty of $68,300—the 

same amount proposed by MSHA. Id. at 495-96 & n.15. 

Solar Sources appealed the Judge’s decision, arguing that the Judge failed to assess a 

civil penalty in accordance with the Mine Act and the Commission’s guidance in The American 

Coal Co., 38 FMSHRC 1987 (Aug. 2016), and, as a result, abused his discretion. Solar Sources 

did not seek review of any other issues in the case.

On appeal, the Commission vacated the Judge’s decision and remanded the case to him to 

reassess the penalty after making the requisite findings and adequately considering all section 

110(i) penalty criteria. Solar Sources I, 42 FMSHRC at 181. In particular, the Commission noted 

that the Judge based his penalty determination on only two criteria—negligence and gravity—

and failed to make findings on and meaningfully consider the remaining criteria. Specifically, the 

Judge failed to make findings on the operator’s violation history and good faith abatement. The 

Commission directed the Judge to consider the evidence pertaining to these criteria and make 

findings and explain the impact of these criteria, along with the other penalty criteria, on his 

penalty determination. 

On remand, the Judge issued a lengthy opinion. As an initial determination, the Judge 

concluded that “this violation was ‘especially egregious.’” ALJ Rem. Dec., 42 FMSHRC at 336. 

Concerning Solar Sources’ history of violations, the Judge found that two previous berm 

1

 The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. 

§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and 

substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 

2

 An “unwarrantable failure” represents aggravated conduct constituting more than 

ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). 

43 FMSHRC Page 368
violations six and eight years before the current violation were recent enough to be relevant and 

that Solar Sources knew berms required “constant attention.” Id. at 365. He also found that 

serious gravity and high negligence outweighed any amelioratory effect that its history might 

have warranted. Addressing good faith, the Judge gave no credit to the operator’s actions to 

assure future compliance because MSHA required changes to Solar Sources’ berm procedures. 

As to the remaining penalty criteria, the Judge found that the operator was large and that the 

penalties would not affect its ability to continue in business. 

In sum, the Judge stated that he “applied greater weight to the negligence and gravity 

penalty factors and determined that the modest violation history over the past two years should 

not operate to bring about a net negative reduction in the penalty assessed, especially when 

considered with the other statutory penalty factors.” Id. at 358, 360. Based on his findings, the 

Judge increased the penalty to $69,000.3

 

II. 

Disposition 

Section 110(i) of the Mine Act provides that the Commission is authorized to assess all 

penalties under the Mine Act and that such penalties must reflect consideration of six statutory 

factors:

[1] the operator’s history of previous violations, [2] the 

appropriateness of such penalty to the size of the business of the 

operator charged, [3] whether the operator was negligent, [4] the 

effect on the operator’s ability to continue in business, [5] the 

gravity of the violation, and [6] the demonstrated good faith of the 

[operator] charged in attempting to achieve rapid compliance after 

notification of a violation. 

30 U.S.C. § 820(i). 

In drafting section 110(i), Congress’ primary purpose was to encourage mine operator 

compliance under the Act. The legislative history of the Act’s civil penalty provision states: 

3

 In imposing a $69,000 penalty, the Judge exceeded the maximum penalty for the 

violation. At the time the violation was issued (June 2016), the statutory maximum penalty was 

$70,000. However, on July 1, 2016, in accord with the Inflation Adjustment Improvements Act 

of 2015, MSHA issued an interim change that decreased the maximum penalty for violations 

during the relevant period from $70,000 to $68,300. 81 Fed. Reg. 43430, 43443-44 (July 1, 

2016). In November 2016, MSHA assessed the penalty at the maximum amount of $68,300. In 

January 2017, MSHA issued a final rule raising the maximum penalty to $69,417 but stating that 

violations which occurred after November 2015 with proposed penalties assessed between 

August 2016 and January 2017 (as with the citation at issue) would be subject to penalties at 

August 2016 levels. 82 Fed. Reg. 5373, 5374 (table) (Jan. 18, 2017). Accordingly, the maximum 

penalty for the subject citation was $68,300. 

43 FMSHRC Page 369
The purpose of . . . civil penalties, of course, is not to raise 

revenues for the federal treasury . . . . [T]he 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. 

S. Rep. No. 95-181, at 40-41 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human 

Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 628-29 (1978). 

See also Ambrosia Coal & Constr. Co., 18 FMSHRC 1552, 1565 n.17 (Sept. 1996) (recognizing 

importance of the deterrent function of civil penalties). The legislative history of section 110(i) 

makes clear that civil penalties are remedial, not punitive, and are assessed to induce “effective 

and meaningful” compliance with safety and health standards. Contractors Sand & Gravel Inc., 

23 FMSHRC 570, 580 (Jun. 2001). 

The Commission possesses independent authority to assess all penalties de novo pursuant 

to section 110(i) of the Mine Act. While the Commission considers the same criteria as the 

Secretary in assessing such penalties, it is bound neither by the Secretary’s proposed assessment 

nor by his Part 100 regulations governing his penalty proposal process. See Sellersburg Stone 

Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“neither the ALJ nor the Commission 

is bound by the Secretary’s proposed penalties;” and “neither the Act nor the Commission’s 

regulations require the Commission to apply the formula for determining penalty proposals that 

is set forth in section 100.3”); Mach Mining, LLC, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016) 

(“‘[U]nder both Commission and court precedent, the regulations do not extend to the 

independent Commission, and thus the MSHA regulations are not binding in any way in 

Commission proceedings.’”) (citations omitted). It is important to keep that line of separation 

between the Commission and the Secretary to maintain the review process’s integrity. Otherwise, 

operators may believe that the Commission is merely a rubber stamp of the Secretary’s 

assessment proposals. 

The Commission has granted Judges broad discretion in assessing civil penalties under 

the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). This “wide discretion” 

is necessary “if, as Congress intended, civil penalties assessed under the Act are effectively to 

encourage operator compliance with the Act and its standards and to protect the public interest.” 

U.S. Steel Mining Co., Inc., 6 FMSHRC 1148, 1150 (May 1984). However, such discretion is not 

unbounded and must reflect proper consideration of the penalty criteria set forth in section 110(i) 

and the deterrent purpose of the Act. Id. (citing Sellersburg Stone Co., 5 FMSHRC 287, 290-94 

(Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984)). 

Under Sellersburg and the Commission’s Procedural Rules, an Administrative Law Judge 

must make: 

[f]indings of fact on each of the statutory criteria [that] not only 

provide the operator with the required notice as to the basis upon 

which it is being assessed a particular penalty, but also provide the 

Commission and the courts . . . with the necessary foundation upon 

which to base a determination as to whether the penalties assessed 

by the judge are appropriate, excessive, or insufficient. 

43 FMSHRC Page 370
Sellersburg, 5 FMSHRC at 292-93; 29 C.F.R. § 2700.30(a). Assessments “lacking record 

support, infected by plain error, or otherwise constituting an abuse of discretion are not immune 

from reversal.” U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984). 

 In its initial decision in this proceeding, the Commission directed the Judge on remand: 

to make specific findings regarding the operator’s history of 

violations and the operator’s actions related to attempting to 

achieve rapid compliance after notification of a violation, . . . [and 

then] review th[o]se factors taking into account the findings on the 

other penalty criteria. The Judge must then consider his penalty 

criteria findings along with the record evidence, reassess a civil 

penalty, and explain his rationale in an independent and reasoned 

manner. 

Solar Sources I, 42 FMSHRC at 188. At issue is whether the Judge erred in reassessing and 

increasing the penalty to $69,000 after reviewing the operator’s history of violations and whether 

there was good faith in addressing the violation. Solar Sources raises several arguments 

challenging the Judge’s decision—primarily that the Judge erred in his consideration of its 

history of violations, good faith abatement, and negligence—and thus, he erred in his penalty 

reassessment. 

In its first decision, the Commission noted extensive case law remanding cases to 

Administrative Law Judges for failure to make adequate findings on the section 110(i) penalty 

criteria and so that Judges may provide sufficient explanation for the bases of their penalty 

determinations. Id. at 185–86. We highlighted that a Judge’s penalty determination must “meet 

the requirements of due process and fair and informed review.” Id. at 186. “Despite the 

Commission’s clear mandate in Sellersburg and related cases, and in its Procedural Rules, we 

have repeatedly found it necessary to remand cases for penalty assessments because judges have 

failed to enter the requisite findings.” Hubb Corp., 22 FMSHRC 606, 612 (May 2000).4

Here, the Judge failed to follow the Commission’s remand instructions properly and 

ignored the law of the case. As discussed below, the Judge erred in his treatment of the history of 

violations and good faith abatement criteria and did not appropriately credit the operator for its 

low violation history and good faith abatement when assessing the penalty. In addition, the Judge 

effectively increased his negligence finding on remand to justify an increased penalty. Although 

the evidence supported the position that several of the criteria did not suggest a statutory 

maximum penalty, the Judge refused to credit the operator. Instead, he increased the penalty 

beyond the maximum amount permitted under the Mine Act.5 Thus, the Judge committed several 

errors in his treatment of the penalty criteria, each of which infected his penalty assessment. 

4

 Commission Procedural Rule 30(a) instructs Judges that their decisions “shall contain 

findings of fact and conclusions of law on each of the statutory criteria and an order requiring 

that the penalty be paid.” 29 C.F.R. § 2700.30(a). 

5 See n.3, supra. 

43 FMSHRC Page 371
Accordingly, we vacate the Judge’s penalty assessment. U.S. Steel, 6 FMSHRC at 1432 

(assessments “infected by plain error . . . are not immune from reversal.”). 

This is the second time this case is before the Commission. As such, we do not find it 

judicially efficient to remand it to the Judge yet again solely for another reassessment. Given that 

the Judge has made all the necessary findings of fact on section 110(i), we will apply the criteria 

here and assess an appropriate penalty.6 

1. Solar Sources’ History of Violations

In our prior decision, the Commission noted that “[t]he record contains highly relevant 

evidence regarding the operator’s violation history. Yet, the Judge did not engage in any analysis 

and did not make any findings on the possible significance of such evidence. The Judge merely 

references Government Exhibit P-2.” Solar Sources I, 42 FMSHRC at 187. The Commission, 

however, found that the Secretary’s “exhibit reveals a positive compliance record in that the 

operator had not had a berm violation in six years and only two such violations in its entire 

history. It did not have any unwarrantable failures in the 15 months preceding the citation. In 

fact, the operator had received only 19 citations under section 104(a) of the Mine Act, 30 U.S.C. 

§ 814(a), for which it was penalized a total of $13,276.” Id. at 187 n.8. 

The Judge acknowledged that there was no evidence of any berm violation in this 

operator’s recent history but declined to give any measurable weight to such evidence, in part 

because the operator had two berm violations, some six to eight years prior, in 2008 and 

2010/11. ALJ Rem. Dec., 42 FMSHRC at 353-54. He reasoned that “[b]y having any berm 

violations in its history, and noting that those violations were not ancient by any means, the 

Respondent should not be awarded with a penalty reduction on that account.” Id. at 352. 

 The Judge erred by giving greater weight to the two old berm violations than the 

operator’s favorable recent 15-month record. The operator had not had a berm violation in six 

years and only two such violations in its history. 

While there is no prohibition against the Judge’s consideration of older violations per se, 

the record as a whole does not support his characterization of the operator’s overall violation 

history. First, the older berm violations were six and eight years old. The Secretary did not 

present any record evidence on the details of those violations. The scant mention of prior 

6

 The Commission typically leaves such determinations in the hands of our Judges, but 

where a Judge has failed to follow the law of the case, it has previously assessed a penalty where 

such action was deemed necessary and prudent. See, e.g., Douglas R. Rushford Trucking, 24 

FMSHRC 648, 653 (Jul. 2002) (Judge failed to adhere to remand instructions so Commission 

vacated the Judge’s penalty and assessed $15,000 penalty); Steen employed by Ambrosia Coal & 

Constr. Co., 20 FMSHRC 381, 386 (Apr. 1998) (holding that, in the interest of a speedier 

resolution to litigation, the Commission may assess a penalty rather than remand to the Judge 

for assessment); Westmoreland Coal Co., 8 FMSHRC at 492 (“determination of an appropriate 

penalty to be assessed necessarily should have been affected by [the Commission’s 

determination] of a lesser degree of negligence.”). 

43 FMSHRC Page 372
violations was by Solar Sources’ Safety Director Steven Troy Fields. Fields merely noted that 

the operator had no berm violations in its recent past and he stated his belief, without detail, that 

the operator had only two berm violations in its history—one in 2008 and a second in 2010 or 

2011.7 Inspector Jason Noel testified that he did not find any prior berm violations in the 

operator’s mine files. Tr. 272. 

Without any record evidence about the older berm violations, the Judge could not 

rationally evaluate and compare or contrast the circumstances of those violations with the current 

violation. See Sec’y of Labor on behalf of McClain v. Misty Mountain Mining, Inc., 28 FMSHRC 

303, 307 n.9 (Jun. 2006) (“Because this evidence is not part of the record on review, it cannot be 

considered by the Commission.”); see also 30 U.S.C. § 823(d)(2)(A)(iii) (“no assignment of 

error by any party shall rely on any question of fact or law upon which the administrative law 

judge had not been afforded an opportunity to pass.”). 

In the absence of any meaningful evidence, the existence of two old violations should 

bear little to no weight considering the operator’s overall violation history, especially given their 

age compared to the operator’s relevant violation history. Thus, the Judge erred by assigning 

them greater weight than the operator’s recent compliance history without any basis in the 

record. 

 Second, the Commission has held that an operator’s general violation history, not just its 

history of similar violations, is relevant in considering this penalty criterion. Jim Walter Res., 

Inc., 28 FMSHRC 983, 995 (Dec. 2006) (“The Commission has previously held that the 

reference in section 110(i) to an ‘operator’s history of previous violations’ refers to the 

operator’s general history of previous violations, not just to violations of a kind similar to the one 

giving rise to the penalty assessment.”). The Judge should have considered the record evidence 

of the operator’s general violation history, including non-berm violations. That evidence 

demonstrates this operator had a low violation history. 

 Significantly, in the Commission’s initial decision remanding the issue to the Judge to 

reconsider the evidence, the Commission noted the operator’s “positive compliance record.” 42 

FMSHRC at 187 n.8. The evidence indicates that in the preceding 15-month violation history, 

Solar Sources had received only 19 citations for which the penalties totaled $13,276. All the 

violations were assessed under MSHA’s regular assessment process—six of which were assessed 

at the statutory minimum of $100, nine were under $200, and all but three were less than $1,000, 

with the highest at $4,099. None involved the standard at issue in this case, and none were 

designated unwarrantable failures. Only nine of the sixteen were designated S&S. Ex. P-2. The 

evidence supports that for a large mine, producing approximately 1.2 million tons of coal 

annually, this is a low history of violations. ALJ Rem. Dec., 42 FMSHRC at 355; Gov’t Ex. A. 

7

 The entirety of the testimony about the two old berm violations accorded great weight 

by the Judge occurred when Fields was asked if he was aware of the last berm violation. His 

response was, “I would have to look back. Excuse me, my voice is going, but I think we had 

previously had two berm violations. One was 2008 and possibly, like, 2010 or ’11.” Tr. 498. 

Thus, Fields did not testify with certainty to prior violations and did not provide any evidence, if 

they occurred, regarding their location, facts, or seriousness. 

43 FMSHRC Page 373
The Judge failed to address this evidence. Instead, he focused on the two older berm violations, 

despite the absence of evidence on those particular violations. 

Not only did the Judge fail to make a quantitative analysis, but also he failed to make a 

qualitative evaluation of the operator’s violation history. In Cantera Green, the Commission held 

that in addressing the history of violations criterion, a Judge should evaluate whether that history 

was high, moderate, or low. 22 FMSHRC 616, 623 (May 2000). In his analysis, the Judge did not 

meaningfully examine the entire violation history presented by the Secretary. As noted, the 

overwhelming evidence of the operator’s recent history compels the conclusion that it had a low 

history of violations. See Am. Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (remand 

not necessary when record supports no other conclusion). 

Despite this evidence, the Judge summarily concluded that “only a small downward 

penalty adjustment is due . . . . [T]hat is more than offset by consideration of the other five 

penalty factors, each of which points in the opposite direction.” ALJ Rem. Dec., 42 FMSHRC at 

360. We disagree. The operator’s low violation history does not support a maximum penalty. 

Thus, by not giving the operator any appreciable credit for its low violation history, the Judge 

erred in making his penalty assessment. 

2. Solar Sources’ Good Faith Attempt to Achieve Rapid Compliance After 

Notification of the Violation 

 In its initial decision, the Commission noted that the Judge failed to address the good 

faith abatement criterion in his decision, relegating the criterion to brief mention in a footnote 

and an erroneous statement that the parties had entered a stipulation as to this criterion. Solar 

Sources I, 42 FMSHRC at 187-88 (citing ALJ Dec., 40 FMSHRC at 495 & n.15). The parties 

continued to dispute whether the operator engaged in good faith in abating the violation. Solar 

Sources I, 42 FMSHRC at 188 (citing Oral Arg. Tr. 37-38, 57). 

 On remand, the Judge concluded that the operator displayed “zero good faith” and was 

“entitled to no reduction in the penalty imposed because, to put it simply, there was no good 

faith in attempting to achieve rapid compliance under this penalty criterion. After all, the berm 

vanished upon its collapse, taking the huge truck along with it. No rapid compliance was 

thereafter available.” ALJ Rem. Dec., 42 FMSHRC at 348, 361 (emphasis added). The Judge 

opined that the operator’s admission that MSHA made it take certain measures post-accident to 

abate the violation belied the fact that it attempted to achieve rapid compliance after being 

notified of the violation. Id. 

Again, the Judge mischaracterized the operator’s efforts to achieve compliance with 30 

C.F.R. § 77.1605(l) and should have credited the operator for its good faith. In rejecting the 

notion that the operator exhibited good faith, the Judge erroneously focused on the futility of 

actions to repair the original berm, which the accident destroyed. The Judge completely ignored 

the operator’s efforts post-accident to ensure a safe means of dumping, which ultimately resulted 

in it re-designing the berm and dumping procedures. 

43 FMSHRC Page 374
Solar Sources’ Vice President of Mining Matthew Atkinson testified that the operator 

redesigned how it dumped gob and slurry into the pit and submitted a modified ground control 

plan after the accident. The operator explained that the new process included a chute and a berm 

with a secondary area below it which is also bermed off. Once material accumulates, a dozer 

pushes the material into the pit, keeping the truck operator behind two berms, approximately 20 

feet away from the embankment edge. Tr. 344-47; see also Ex. R-22 (modified Ground Control 

Plan). 

 The destruction of the original berm does not negate a subsequent showing of good faith. 

Obviously, the operator had to restore the worksite to resume operations at this location. 

However, the operator took significant new actions to prevent the occurrence of a similar 

accident. 

 Thus, the operator acted promptly to rectify the violative condition and to redesign 

procedures to prevent future accidents. Solar Sources complied with MSHA’s directive to 

implement a new ground control system. Tr. 347-48, 516-17. The fact that MSHA was involved 

in new procedures does not invalidate the operator’s work to abate the violation in good faith and 

to achieve regulatory compliance. Rather, it shows that the operator cooperated and complied 

with MSHA’s directives. 

 The Judge also erroneously discredited the steps taken by Solar Sources by pointing to 

Safety Director Fields’ testimony that “MSHA made us submit a ground control plan or revised 

ground control plan . . . . that’s what we had to do. We had to revise that so it basically put[] at 

least 20-foot or minimum 20-foot between the berm and then another berm and then the spoil 

bank.” ALJ Rem. Dec., 42 FMSHRC at 348; Tr. 516-17. The Judge mischaracterized this 

testimony as an admission or demonstration of a lack of good faith. No evidence supports such 

an inference. See Bussen Quarries, Inc. v. Acosta, 895 F.3d 1039, 1046-47 (8th Cir. 2018) 

(concluding that the Judge’s inference was unreasonable because it was based on nothing more 

than suspicion). Cooperating with MSHA and willingly complying with its directions are good 

faith actions. Hence, the Judge’s characterization of Solar’s post-accident actions is misplaced. 

 Moreover, the Mine Act’s mandate that an operator abate a violation prior to adjudication 

promotes consideration of an operator’s efforts to abate the violation. The Mine Act identifies 

the penalty factor as “good faith of the person charged in attempting to achieve rapid compliance 

after notification of a violation.” 30 U.S.C. § 820(i). Therefore, the Mine Act explicitly 

contemplates the actions by an operator after a violation. This factor encourages and credits an 

operator’s good faith in cooperation with MSHA to rectify dangerous or violative conditions. To 

hold otherwise would discourage an operator’s compliance efforts, which would be antithetical 

to the Mine Act’s safety-promoting purpose. The operator’s cooperation or compliance with 

MSHA’s requirement to modify its ground control plan and implement a new method for 

dumping, instead of arguing that it should merely rebuild the berm, demonstrates good faith in 

achieving compliance and safe operating conditions. 

The Commission has recognized that good faith is a matter of degree, similar to 

negligence. Coal River Mining, LLC, 32 FMSHRC 82, 97 (Feb. 2010) (“The term 

‘demonstrated’ makes the question of the operator’s ‘good faith’ one that can be answered 

43 FMSHRC Page 375
in degree.”). Ironically, in his initial decision, the Judge found that Solar’s “post-incident action 

was laudable, and reflective of the serious attitude [it] takes towards safety.” ALJ Dec., 40 

FMSHRC at 489. In this regard, the Judge noted that Solar Sources modified the ground control 

plan for the dumpsite and redesigned the slurry dumping process. 

Simply stated, substantial evidence does not support a finding that the operator failed to 

act in good faith in attempting to achieve rapid compliance after notification of the violation.8

Consequently, the Judge erred in declining to credit Solar Sources for its good faith abatement. 

This error undermines the Judge’s assessment. 

3. Negligence 

The operator argues that the Judge erred in determining that its negligence was of the 

“highest order” in assessing a penalty in this case. PDR at 31-32. The operator characterizes the 

Judge’s statement as a new, enhanced finding on negligence akin to reckless disregard. We agree 

and find that he erroneously relied on this new finding in assessing a higher than maximum 

penalty.9

In explaining his consideration of the penalty factors, the Judge stated that “[f]inding the 

negligence to have constituted an unwarrantable failure, the negligence associated with this 

violation was of the highest order for this penalty factor and thus points to the highest penalty

the Court may impose.” ALJ Rem. Dec., 42 FMSHRC at 358 (emphasis added). 

In his initial decision, the Judge concluded that the operator was highly negligent and that 

this criterion weighed heavily in his penalty assessment. ALJ Dec., 40 FMSHRC at 488, 495. 

Neither party appealed the Judge’s negligence finding nor challenged his consideration of the 

evidence pertaining to this criterion to the Commission after his initial decision. Thus, this 

finding was not before the Commission in Solar Sources I and was not remanded to the Judge for 

reconsideration. It is the law of the case. See Manalapan Mining Co., 36 FMSHRC 849, 850 

(Apr. 2014) (in the second appeal after Judge’s decision on remand, the Commission 

8

 When reviewing administrative law judges’ factual determinations, the Commission is 

bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable 

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)). In reviewing the whole record, an appellate tribunal must consider 

anything in the record that “fairly detracts” from the weight of the evidence that supports a 

challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) 

(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). 

9

 We reject the Secretary’s contention that Solar Sources is barred from raising this 

argument on appeal. It did raise this argument in its petition for discretionary review, which 

relates to a modified finding made by the Judge for the first time in his remand decision. See 30 

U.S.C. § 823(d)(2)(A)(iii) (“Review by the Commission shall be granted only by affirmative 

vote of two of the Commissioners present and voting. If granted, review shall be limited to the 

questions raised by the petition.”). 

43 FMSHRC Page 376
“conclude[d] that by reversing his initial finding of a violation, the Judge violated the 

‘law of the case’ doctrine”); Douglas R. Rushford Trucking, 23 FMSHRC 790, 793 (Aug. 2001) 

(holding that Judge’s original findings of gross negligence and unwarrantable failure were not 

appealed, were not subsequently remanded, and thus became the law of the case). 

The law of the case doctrine provides that when a decision is made at one stage of 

litigation and not challenged on appeal, it continues to govern. See Concrete Works of Colorado, 

Inc. v. City and Cnty. of Denver, 321 F.3d 950, 992 (10th Cir. 2003); United States v. Bell, 988 

F.2d 247, 250 (1st Cir. 1993); see also Pepper v. United States, 131 S. Ct. 1229, 1250 

(2011) (stating that “when a court decides upon a rule of law, that decision should continue to 

govern the same issues in subsequent stages of the same case.”). Here, the law of the case 

doctrine governs issues related to negligence. 

The Commission has held that “the Judge should take into account the degree of 

operator negligence, which would be on a scale between low negligence and reckless disregard, 

in assessing an appropriate penalty.” The American Coal Co., 38 FMSHRC 2062, 2084 n. 32 

(Aug. 2016). Thus, there is a recognition of degrees of negligence ranging from low through 

reckless disregard or gross neglect, and the Commission explicitly drew such distinction in 

Lehigh Anthracite Coal LLC, 40 FMSHRC 273 (Apr. 2018). There, it found that the Judge erred 

in finding high negligence rather than reckless disregard. Id. at 279-83. 

In this case, the Judge changed his negligence determination in the opposite direction. 

Upon remand, the Judge found negligence was of the “highest order,” by implication raising the 

negligence level to reckless disregard. We understand the Judge’s desire to reaffirm his initial 

assessment, but he may not increase his negligence finding to do so. The Judge’s prior 

negligence finding was before him in the limited capacity to consider and weigh all the penalty 

criteria in reassessing the penalty. Hence, the Judge’s original finding of high negligence is the 

law of the case and may not be disturbed on remand by choosing to reclassify it as the “highest 

level” of negligence. 

Because the Judge inappropriately inflated the operator’s negligence to the highest level, 

he erred by relying on his new finding to reassess the penalty. Thus, his consideration of 

negligence on remand constituted another error that further infects his penalty assessment.

4. Remaining Penalty Criteria 

The Commission also instructed the Judge to make necessary findings on the remaining 

penalty criteria—the operator’s size and its ability to continue in business—and to “consider his 

penalty criteria findings along with the record evidence, reassess a civil penalty, and explain his 

rationale in an independent and reasoned manner.” Solar Sources I, 42 FMSHRC at 188. 

As to the operator’s size, the Judge found that the evidence supported that the Shamrock 

Mine was a large mine. ALJ Rem. Dec., 42 FMSHRC at 353. He found that the operator did not 

raise the argument that the penalty would affect its ability to continue in business. Id. at 353-54. 

43 FMSHRC Page 377
Solar Sources did not appeal the findings regarding size or ability to stay in business.10 The 

Judge concluded that the two remaining criteria—violation history and efforts to achieve 

compliance—did not warrant lowering his original penalty assessment. Id. at 343, 348, 352. 

5. The Judge’s Reassessment

After addressing the four criteria he previously failed to consider, the Judge increased the 

penalty from $68,300 to $69,000. Id. at 364. The Judge somewhat inflated his prior finding of 

negligence to a finding upon remand that negligence was of “the highest order,” justifying the 

highest penalty that could be imposed. Id. at 358. 

The Commission has held that a Judge may assign different weights to the section 110(i) 

penalty criteria. Knight Hawk Coal, LLC, 38 FMSHRC 2361, 2373-74 (Sep. 2016) (“We have 

recognized that in assessing a civil penalty, a Judge is not required to assign equal weight to each 

of the penalty assessment criteria.”); Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001) 

(“Judges have discretion to assign different weight to the various factors, according to the 

circumstances of the case. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).”). 

Moreover, Judges are “not required to weigh the criteria in assessing the penalty in the same 

manner that the criteria are weighed in the proposal of a penalty.” Jim Walter Res., Inc., 36 

FMSHRC 1972, 1980 (Aug. 2014). Ultimately, the Judge’s penalty assessment must not be 

“inconsistent with the statutory criteria and the deterrent purpose behind the Act’s provision for 

penalties.” Sellersburg, 5 FMSHRC at 295. 

The Judge’s numerous errors in considering the penalty criteria taint his penalty 

assessment in this case. Not only did the Judge make errors in findings of fact on several of the 

criteria, as noted above, but he erred in his analysis of the impact of the criteria on the penalty 

determination here. In assessing the penalty below, the Judge relied heavily on MSHA’s 

rationale that the violation deserved a special penalty due to the nature of the violation. Finding 

the violation to be “especially egregious,” the Judge accepted that view based on negligence and 

gravity, which he determined to be very serious on both accounts. ALJ Rem. Dec., 42 FMSHRC 

at 336. Despite this, he did not find the highest levels of negligence and gravity. The Judge did 

not conclude that the evidence supported a finding of reckless disregard. Rather, he found that 

the operator exhibited only high negligence. Nevertheless, he concluded that the conduct of the 

operator warranted the highest penalty for this berm violation. Based on these factors and with 

little to no regard for the other penalty factors, the Judge imposed a penalty beyond the 

maximum and higher than the penalty proposed by MSHA. 

Accordingly, we vacate the Judge’s penalty assessment. Under the circumstances of this 

case, we conclude that remand is not necessary. The findings on the section 110(i) penalty 

criteria are not in dispute. Rather, it is the appropriate application and consideration of those 

factors that are disputed. In this instance, in the interest of judicial economy, we will consider 

and impose an appropriate penalty rather than remand the case to the Judge to reassess the 

penalty yet again. 

10 Likewise, the parties did not appeal the findings on gravity. ALJ Rem. Dec., 42 

FMSHRC at 364.

43 FMSHRC Page 378
The penalty will not affect the operator’s ability to stay in business. Considering the other 

penalty criteria in a holistic and integrated manner, we recognize that the violation’s gravity and 

negligence factors play important roles in evaluating the violation to determine a penalty. We 

also must factor in the operator’s size, history of violations and attempt to achieve rapid 

compliance after notification of the violation. We are mindful, as set forth above, that the 

purpose of the penalty is to deter rather than to punish. Here, the Judge exceeded the maximum 

permissible penalty. 

First, the inspector cited gravity as highly likely to be fatal to one person. Without doubt, 

a violation highly likely to cause a fatality is serious and militates toward a significant penalty. 

Fortunately, a fatality did not occur. 

 Second, the Judge found “high negligence,” not reckless disregard, which is a higher 

level of negligence under MSHA’s penalty system and in the Commission’s case law. Again, 

high negligence is serious and leads toward a significant penalty. As noted above, however, in 

Lehigh Anthracite Coal, supra, the Commission reversed a Judge’s finding of high negligence 

and substituted reckless disregard. In doing so, the Commission remanded the case for a 

redetermination of the penalty. On remand, the Judge increased the penalty. In Lehigh 

Anthracite, the Commission recognized that high negligence did not manifest a maximum degree 

of negligence. 40 FMSHRC at 283. 

Third, regarding size, the parties stipulated that the operator produced approximately 1.2 

million tons of coal per year. That is a very substantial amount of coal, and as the Judge found, 

the operator is large. At the same time, it does not place it within the top 50 coal mines in the 

nation and, therefore, is not near the maximum in the size category. 

Therefore, in terms of negligence, gravity, and size, it is reasonable to look toward the 

high end of the penalty spectrum. In turning to other penalty factors, we must consider the 

favorable history of violations and a good faith abatement effort. We do so cognizant that the 

purpose of the penalty is to deter future violations. From the foregoing, it is apparent that the 

Judge’s analysis erred in the factoring of the history of violations and good faith attempt to 

achieve rapid compliance. Those factors demonstrate good faith efforts to comply in the past and 

good faith efforts to do even more in the future to prevent violations. They cut against a need for 

a maximum penalty to deter future violations. Efforts, monetary and otherwise, incurred in 

implementing a rigorous system for preparing structurally sound berms are not part, per se, of the 

civil penalty, but they are efforts intended to prevent/deter violations. Thus, these measures 

support efforts to achieve compliance moving the penalty away from the highest end of the 

penalty spectrum. 

i. History of Violations 

As demonstrated above, Solar Sources had a good record of compliance in the months 

and years before this aberrational event. In the prior 15 months, despite its size and regular 

43 FMSHRC Page 379
inspections, it had been cited only 19 times for violations with total penalties of less than 

$14,000.11 

Continuing further, MSHA also examines an operator’s history of repeat violations. In 

this regard, Solar Sources did not have any recent history of repeat violations. Its history 

illustrates that this criterion should lean toward a minimal penalty due to its good record of 

compliance. 

We have already explained the weakness of the Judge’s reliance on the scant testimony of 

two prior berm violations six and eight years earlier with respect to which no citation or other 

verifiable evidence was introduced. Thus, the operator’s history of violations does not 

demonstrate the need for a maximum penalty to deter future violations. 

ii. Good Faith in Attempting to Achieve Rapid Compliance After 

Notification of a Violation 

While MSHA’s penalty assessment proposal criteria do not bind us, we note that the 

criteria allow up to 10% - reduction for good faith abatement. See 30 C.F.R. § 100.3(f). The 

Mine Act, however, speaks more broadly than abatement. Using the terminology “achieve rapid 

compliance,” 30 U.S.C. § 820(i), the statute speaks to all activities an operator undertakes to 

assure compliance with the regulation—that is, to use berms that prevent over-travel and 

overturning at dumping locations as required by 30 C.F.R. § 77.1605(l). 

Solar Sources instituted a new and extensive system of berm workings to prevent future 

events. The Judge refused to give these actions any credit regarding the civil penalty because 

MSHA required this new system. The fact is that the operator undertook extensive, entirely new 

procedures to prevent—that is, deter—any future over-travel of berms. Following Congressional 

intent toward the purpose of deterrence, Solar Sources’ institution of a new and extensive system 

of berm workings to prevent future events must be considered. 

The Judge should have credited the operator for its low history of violations and good 

faith abatement and assessed a lower, not higher, penalty. The Judge erred in his findings related 

to these criteria and in his consideration of the interplay of the criteria. Having concluded that the 

evidence compels the conclusion that the operator had a favorable violation history and 

demonstrated good faith in achieving rapid compliance, a penalty less than maximum is 

warranted to accomplish the deterrent purposes of a civil penalty. We accord significance to 

these factors. In summary, the Judge’s finding of negligence and gravity support a high albeit 

less than maximum penalty. On the other hand, the operator’s history and good faith action to 

achieve compliance with the standard offset the need for a maximum penalty to achieve 

deterrence. Balancing all factors, we find the appropriate penalty is $40,000. 

11 While the ideal would be a history with no violations or penalties, this is not a 

significant history, especially for a moderately large operator under current inspection and 

enforcement.

43 FMSHRC Page 380
III. 

Conclusion 

 Accordingly, we vacate the Judge’s decision and assess a penalty of $40,000 for Citation 

No. 9102704. 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Commissioner 

Chair Traynor, dissenting: 

In our first decision in this matter, Solar Sources Mining, LLC, 42 FMSHRC 181, 203 

(Mar. 2020) (Solar I), I concurred, in part, with my colleagues’ decision to vacate and remand 

the Judge’s penalty assessment ($68,300) because he failed to first consider each of the statute’s 

six penalty criteria, 30 U.S.C. § 820(i). Regretfully, I was not able to join their decision in full 

because the majority also appended a separate advisory opinion on an issue that was not actually 

before the Commission on review. Solar I at 203-204. 

Once again, I am unfortunately unable to join my colleagues’ decision – this time, 

because they usurp the discretionary role of our Judges in the assessment process, arrogating to 

themselves the power to set a penalty. 

On remand, following our first decision in this case, the Judge fully considered the six 

penalty criteria at section 110(i) when making his discretionary decision to assess a $69,000 

penalty. This is fully consistent with section 110(i), 30 U.S.C. 820(i), of the Mine Act, which 

states, in pertinent part: 

In assessing civil monetary penalties, the Commission shall consider the 

operator’s history of previous violations, the appropriateness of such penalty to 

the size of the business of the operator charged, whether the operator was 

negligent, the effect on the operator’s ability to continue in business, the gravity 

of the violation, and the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notification of a violation. 

43 FMSHRC Page 381
The Judge explained that the $69,000 penalty assessment was due to the operator’s high 

negligence, history of berm violations, and the extreme gravity of the accident.1

 He found that 

the other penalty factors did not militate against imposing a high penalty.2 Specifically, although 

the Judge concluded that the operator’s general history of violations of all safety standards was 

“modest” he found its history of berm violations was aggravating. Furthermore, the Judge found 

that the operator was large, producing over one million tons of coal a year. The Judge recognized 

that Solar Sources did not contend that the proposed penalty would affect its ability to stay in 

business. Finally, the Judge found that Solar Sources did not demonstrate a good faith attempt to 

achieve rapid compliance. 

Solar Sources again petitioned the Commission for review of the Judge’s assessment, and 

the Commission granted review. 

 Until this decision, we have regularly preserved our Judges’ wide discretion to apply the 

section 110(i) penalty criteria in support of a penalty assessment. Our precedents recognize that 

application of the six criteria and our Judges’ ability to assign different weights to each can (and 

should) result in a wide range of permissible assessments, with no single “correct” or “best” 

assessment decision in any particular case. To that end, we have consistently applied an 

intentionally limited appellate review to our Judges’ penalty assessment decisions that has taken 

the form of a two-step process. The Commission: 

[R]eview[s] the findings of fact on each of the section 110(i) criteria under the 

substantial evidence standard, looking for ‘such relevant evidence as a reasonable 

mind might accept as adequate to support [the Judge’s] conclusion.’ Rochester & 

Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989). Then, [ ] review[s] the 

Judge’s assessment decision for abuse of discretion, which must be ‘bounded by 

proper consideration of the statutory criteria and the deterrent purpose underlying 

the Act’s penalty assessment scheme.’ Sellersburg, 5 FMSHRC at 294. 

1 The Judge found that the violation of the safety standard at 30 C.F.R. § 77.1605(l) – 

which requires berms or other means to prevent overtravel at dumping locations – was 

significant and substantial and the result of an unwarrantable failure to comply. 42 FMSHRC 

329, 358 (May 2020) (ALJ). 

Here, due to the deficiency in the berm, the dump truck’s back wheel over-traveled the 

ledge of the dump site, fell and flipped upside down into the slurry pit approximately 48 feet 

below. The driver escaped almost certain death by leaping from the truck’s cab before it 

descended over the ledge. The jump and fall resulted in a broken foot that required multiple 

surgeries to reconstruct using donated bone, steel and screws. 

2

 The majority incorrectly asserts that the Judge’s $69,000 penalty exceeded the 

maximum penalty available for an unwarrantable failure violation. Slip op. 3 n.3. The Judge 

issued his independent penalty reassessment in May 2020, at which time the maximum penalty 

assessment available was $69,417. 82 Fed. Reg. 5373, 5384 (Jan. 18, 2017). Thus, the Judge did 

not err. 

43 FMSHRC Page 382
Solar I, 42 FMSHRC at 208. 

 My colleagues ignore this well-settled standard of review. Instead, they make penalty 

criteria findings de novo and then assess a new penalty ($40,000). Specifically, the majority 

makes the following de novo findings: the violation history was low,3 slip op. at 8, Solar Sources 

demonstrated good faith in abating the violation, slip op. at 10, and the mine was is not in “the 

top 50 coal mines in the nation and, therefore, is not near the maximum [] size,” slip op. at 13.

The majority weighs their new findings against the Judge’s negligence4 and gravity findings and 

independently concludes that their own penalty criteria findings preclude imposition of a 

maximum penalty. The majority concludes that $40,000 is an appropriate penalty for the 

violation. 

 

 There are multiple problems with the majority’s decision. First, the majority errs by 

reweighing the evidence to reach different penalty criteria findings. Donovan ex rel. Chacon v. 

Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983) (Commission may not “substitute a 

competing view of the facts for the view [an] ALJ reasonably reached.”); Island Creek Coal Co., 

15 FMSHRC 339, 347 (Mar. 1993) (“[i]t would be inappropriate for the Commission to reweigh 

the evidence . . . or to enter de novo findings based on an independent evaluation of the record.”). 

Second, the majority’s re-balancing of their criteria findings to reassess the penalty 

ignores the discretion the Commission has historically accorded to Judges to assign weight to the 

criteria when assessing penalties. See Knight Hawk, 38 FMSHRC at 2373-74 (“We have 

recognized that in assessing a civil penalty, a Judge is not required to assign equal weight to each 

of the penalty assessment criteria.”); Lopke Quarries, Inc., 23 FMSHRC 705, 713 (Jul. 2001) 

(“[j]udges have discretion to assign different weight to the various factors, according to the 

circumstances of the case.” Thunder Basin Coal, Co., 19 FMSHRC 1495, 1503 (Sep. 1997).”); 

see also American Coal Co., v. FMSHRC, 933 F.3d 723, 726 (D.C. Cir. 2019), aff’g 40 

FMSHRC 1011 (Aug. 2018) (“we review the ALJ's penalty calculation for an abuse of 

discretion.”). 

3 The majority states that the Judge failed to make a qualitative evaluation of for the 

operator’s history of violations. Slip op. at 8. This is false. In fact, the Judge states “in the past 

two years Solar Sources has had a modest number of violations . . . the violation history does not 

especially aid the Respondent . . . [as] it has had prior berm violations.” 42 FMSRHC at 360 

(emphasis added). The majority contends that the Judge erred in relying on testimony regarding 

the prior berm violations because the Secretary did not also enter the citations as exhibits. The 

majority cites no authority for their novel proposition that the uncontroverted testimony of an 

operator’s witness is not part of the record and cannot be relied upon by the Judge. 

4

 The majority mischaracterizes the decision below, claiming that on remand the Judge 

increased his negligence determination. This too is demonstrably false. In fact, on remand the 

Judge explicitly reaffirmed his March 2018 negligence determination. 42 FMSHRC at 337 (“the 

Commission did not disturb . . . this Court’s determinations that the violation was . . . the result 

of high negligence.”) (emphasis added), id. at 358 (the “March 2018 decision detailed [my] 

findings regarding Solar Sources negligence. Those findings . . . are reaffirmed here.”). 

43 FMSHRC Page 383
 In particular, the Commission has held that it is not an abuse of discretion for a Judge to 

weigh negligence and gravity more heavily than the other criteria. Knight Hawk, 38 FMSHRC at 

2373-74; Spartan Mining, Co., 30 FMSHRC 699, 725 (Aug. 2008) (holding that a judge may 

increase penalties significantly based on findings of extreme gravity and unwarrantable failure); 

see also Jim Walter Res., Inc., 36 FMSHRC 1972, 1979-80 (Aug. 2014) (holding that weighing 

one factor more heavily was not an abuse of discretion); Thunder Basin, 19 FMSHRC at 1503 

(“there is no requirement that equal weight must be assigned to each of the penalty assessment 

criteria”). 

 My colleagues have improperly commandeered the Judge’s role to reduce his penalty 

assessment. The majority’s decision marks a sharp and consequential departure from well-settled 

precedent providing that we do not overturn the Judge’s penalty assessment absent an abuse of 

discretion. In fact, my colleagues’ momentary reflection that their decision is irregular, slip op. 6 

at n.6, is a tacit acknowledgment of this departure. Of course, this decision in which a 

Commission majority claims for itself the power to lower a penalty (without finding a true abuse 

of discretion and instead of remanding to the Judge) is now precedential authority a future 

Commission may use to increase a penalty. 

The result of my colleagues’ decision is to strip a layer of political insulation from the 

penalty assessment process — taking the penalty assessment out of the hands of life-tenured 

Judges and centralizing it in a Commission comprised of political appointees serving six-year 

terms. I would not be surprised if my colleagues re-think the wisdom of their position when the 

Secretary cites their decision in a petition seeking review of a Judge’s otherwise sound 

discretionary decision to impose a minimal penalty on a mine operator. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

43 FMSHRC Page 384
Distribution: 

Mark Heath, Esq. 

Spilman Thomas & Battle PLLC 

300 Kanawha Boulevard, East 

P.O. Box 273 

Charleston, WV 25321-0273 

mheath@spilmanlaw.com 

Emelda Medrano, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

230 S. Dearborn Street, 8th Floor 

Chicago, IL 60604 

medrano.emelda@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Administrative Law Judge William B. Moran 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

wmoran@fmshrc.gov 

43 FMSHRC Page 385

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 2, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners

ORDER

BY THE COMMISSION: 

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (the “Mine Act”). An Order to Show Cause was issued for the penalty 

proceeding in Docket No. WEST 2019-0111 on July 8, 2019, which by its terms was deemed a 

Default Order on July 29, 2019. Accordingly, an order dismissing the related contest proceeding 

in Docket No. WEST 2019-0097-RM was issued on August 26, 2019. On December 18, 2020, 

Wayne J. Sand and Gravel, Inc. (“Wayne”) submitted a filing in Docket No. WEST 2019-0097-

RM, which we construe as a motion to reopen both the contest and penalty proceedings. 

The Judge’s jurisdiction in the captioned matters terminated when the default occurred 

and the dismissal order was issued. 29 C.F.R. § 2700.69(b). Relief from a Judge’s decision may 

be sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 

823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct review within 40 

days of a decision’s issuance, it becomes a final decision of the Commission. 30 U.S.C. § 

823(d)(1). Consequently, both orders here have become final decisions. 

In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party 

WAYNE J. SAND AND GRAVEL, INC. 

v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

WAYNE J. SAND AND GRAVEL, INC. 

Docket No. WEST 2019-0097-RM 

Docket No. WEST 2019-0111 

A.C. No. 04-01915-477311 

 

 

43 FMSHRC Page 386
from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or 

other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall 

be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). We have observed that default is a harsh remedy and 

that, if the defaulting party can make a showing of good cause for a failure to timely respond, the 

case may be reopened and appropriate proceedings on the merits will be permitted. See Coal 

Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Due to the extraordinary nature of reopening a penalty that has become final, the operator 

has the burden of showing that it should be granted such relief through a detailed explanation of 

its failure to timely contest the penalty and any delays in filing for reopening. The Commission 

considers the entire range of factors relevant to determining mistake, inadvertence, excusable 

neglect, or other good faith reason for reopening. Further, Rule 60(c) of the Federal Rules of 

Civil Procedure provides that a Rule 60(b) motion shall be made within a reasonable time, and 

for reasons of mistake, inadvertence, or excusable neglect, not more than one year after the 

judgment, order, or proceeding was entered or taken. Fed. R. Civ. P. 60(c). 

Wayne’s motion was filed in December 2020, more than 16 months after the default and 

dismissal became final orders of the Commission. Accordingly, the motion to reopen is untimely 

under Rule 60(c). J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004). 

We find Wayne’s explanations unpersuasive with respect to justifying the delay. Wayne 

asserts that it was unaware of the penalty proceeding because it never received the Secretary’s 

Penalty Petition or the Judge’s Order to Show Cause. However, Wayne concedes that it received 

delinquency notices regarding the penalty dated October 2019 and April 2020.1

 Wayne suggests 

that it was not aware of these letters until August 2020, because the operator’s secretary was out 

of the office due to the Covid-19 pandemic. While a brief or moderate delay in mail processing 

due to the pandemic may be considered excusable, a failure to process mail for ten months is not. 

1

 Records suggest that the operator received documents mailed to its legal address of 

record for Health and Safety matters (P.O. Box), but did not receive documents mailed to its 

general legal address of record (Buena Vista Road address), which the operator also provided in 

its notice of contest. We make no finding here as to whether a failure to collect mail from a legal 

address of record would constitute an excusable mistake if the motion was timely. However, the 

operator is urged to enact procedures to ensure that all legal addresses of record are correct and 

checked regularly. 

43 FMSHRC Page 387
The operator should have been aware that it had failed to timely contest the penalty proceeding 

in October 2019, more than a year before this motion was filed. 

Accordingly, we deny Wayne’s motion.2 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

2

 Wayne provides no separate justification with regard to the contest proceeding. 

Accordingly, having considered and rejected the operator’s justifications regarding the penalty 

proceeding, we deny the motion to reopen in full. 

43 FMSHRC Page 388
Distribution: 

Erik Jones, President 

Wayne J. Sand & Gravel, Inc 

P.O. Box 27 

Moorpark, CA 93020-0027 

erik@waynejsandandgravelinc.com 

John M. McCracken, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Chief Administrative Law Judge Glynn Voisin 

Federal Mine Safety & Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

43 FMSHRC Page 389
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 3, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

 

ORDER

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). On December 18, 2020, the Commission received from Buzzi 

Unicem USA (“Buzzi”) a motion seeking to reopen a penalty assessment that had become a final 

order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

 Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

 We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on September 1, 2020, and 

became a final order of the Commission on October 1, 2020. Buzzi asserts that due to a mailing 

error, the contest was sent to MSHA’s St. Louis, Missouri collections office, rather than MSHA 

headquarters in Arlington, Virginia. Buzzi states that it learned of the error upon receipt of a 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

BUZZI UNICEM USA 

Docket No. CENT 2021-0051-M 

A.C. No. 41-00283-520326 

43 FMSHRC Page 390
delinquency notice on November 24, 2020, and then promptly filed a motion to reopen. The 

Secretary does not oppose the request to reopen and confirms that it received partial payment for 

24 of the 30 citations at issue on September 24, 2020. 

 Having reviewed Buzzi’s request and the Secretary’s response, we find that Buzzi’s 

failure to timely contest was due to an inadvertent mailing error. In the interest of justice, we 

hereby reopen this matter and remand it to the Chief Administrative Law Judge for further 

proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 

2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of 

penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/s/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

 

43 FMSHRC Page 391
Distribution: 

Tonya Osteen 

Buzzi Unicem USA 

Highway 608 

P.O. Box 1639 

Sweetwater, TX 79535 

tonya.osteen@buzziunicemusa.com 

John M. McCracken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 392
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 3, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER

BY THE COMMISSION: 

 These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). On March 1, 2021, the Commission received from Consol 

Pennsylvania Coal Company, LLC (“Consol”) three motions seeking to reopen penalty 

assessments that had become final orders of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a).1

 Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

 We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

1

 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

docket numbers PENN-2021-0036, PENN 2021-0037, and PENN 2021-0038 involving similar 

procedural issues. 29 C.F.R. § 2700.12. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

CONSOL PENNSYLVANIA COAL 

COMPANY, LLC 

Docket No. PENN 2021-0036 

A.C. No. 36-07230-527799 

Docket No. PENN 2021-0037 

A.C. No. 36-07416-527800 

Docket No. PENN 2021-0038 

A.C. No. 36-10045-527805 

43 FMSHRC Page 393
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 

(Sept. 1995). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessments were delivered on January 11 and 13, 2021, 

and became final orders of the Commission on February 11 and 12, 2021 respectively. Consol 

asserts that that it timely mailed the contests to the Commission but that they were not received. 

While the Commission has no record of receiving any contests from the operator, the Secretary 

confirms that its St. Louis, Missouri collections office received partial payment from Consol for 

the uncontested penalties.2 The Secretary does not oppose the request to reopen, but urges the 

operator to take steps to ensure that future penalty contests are timely filed to the correct 

address.3

 

 Having reviewed Consol’s request and the Secretary’s response, we find that Consol’s 

failure to timely contest was due to an inadvertent mailing error and that the operator took 

prompt action to move to reopen these cases upon discovery of the error. In the interest of 

justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for 

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. 

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for 

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/s/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

2

 As the Secretary was unaware of which citations Consol wanted to contest, the partial 

payment was applied to the wrong citations. Consol asks that all the citations in the abovecaptioned dockets be reopened so that they can fix this error. 

3

 Notices of contest should not be mailed to the Commission but rather MSHA’s Civil 

Penalty Compliance Office, 201 12th Street South, Suite 401, Arlington, VA 22202. 

43 FMSHRC Page 394
Distribution: 

Marcy Presto 

Safety Analyst 

Consol Energy, Inc. 

1000 Consol Energy Drive, Suite 100 

Canonsburg, PA 15317-6506 

marcypresto@consolenergy.com 

John M. McCracken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 395
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

August 3, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

 

ORDER

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). On January 27, 2021, the Commission received from DelHur 

Industries, Inc. (“DelHur”) a motion seeking to reopen a penalty assessment that had appeared to 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a). 

 On September 2, 2020, the Secretary sent a proposed penalty assessment to DelHur. On 

November 5, 2020, the proposed assessment was deemed a final order of the Commission, when 

it appeared that the operator had not filed a Notice of Contest within 30 days. 

 DelHur asserts that it never received the Secretary’s proposed assessment. DelHur 

maintains that it only learned of the assessment upon receiving a delinquency letter from the 

Secretary on January 8, 2021 and then promptly filed a motion to reopen. The Secretary does not 

oppose the request to reopen, and notes that Postal Service informed the Secretary on November 

10, 2020, that the document was “Unclaimed/Being Returned to Sender.” Both parties also agree 

that an overpayment from an unrelated civil penalty was applied to the citations at issue here. 

DelHur requests to be refunded for these overpayments while it contests the civil penalties before 

the Commission. 

 Having reviewed DelHur’s request and the Secretary’s response, we conclude that the 

proposed penalty assessment did not become a final order of the Commission because the 

operator never received the proposed assessment. Section 105(a) states that if an operator “If, 

within 30 days from the receipt of the notification issued by the Secretary, the operator fails 

to notify the Secretary that he intends to contest the citation or the proposed assessment of 

penalty. . . the citation and the proposed assessment of penalty shall be deemed a final order of 

the Commission. . . .” 30 U.S.C. § 815(a) (emphasis added). Here, it is uncontroverted that 

DelHur never received the original proposed penalty assessment and thus the 30-day requirement 

to file the contest only began once the DelHur received the Secretary’s delinquency letter. In 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

DELHUR INDUSTRIES, INC. 

Docket No. WEST 2021-0107 

A.C. No. 45-01923-521040 

43 FMSHRC Page 396
filing the motion to reopen, DelHur contested the penalties within 30 days in accordance with 

section 105(a). This obviates any need to invoke Rule 60(b). Accordingly, the operator’s motion 

to reopen is moot, the motion to reopen is deemed a timely filed contest of the penalties in the 

above-captioned case, and this case is remanded to the Chief Administrative Law Judge for 

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. 

Part 2700. Any overpayment applied to the contested penalties should be refunded to the 

operator or applied to any outstanding penalties that are final orders of the Commission. 

/s/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

 

43 FMSHRC Page 397
Distribution: 

Eddee Smay 

Safety Manager 

DelHur Industries, Inc. 

1933 Jadwin Avenue, Suite 110, 

Richland, WA 99354 

esmay@delhur.com 

John M. McCracken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 398
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

August 17, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER 

BY THE COMMISSION: 

 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On August 3, 2021, Administrative Law Judge Jacqueline 

Bulluck requested leave of the Commission to amend her Decision Approving Settlement, issued 

in this proceeding on May 6, 2021, in order to correct a clerical error. The Judge’s May 6 

decision was issued with an incorrect docket number in the caption. Under section 113(d) of the 

Mine Act, the Judge’s decision became a final order of the Commission 40 days after its 

issuance. 30 U.S.C. § 823(d)(1). However, pursuant to Commission Procedural Rule 69(c), a 

Judge may correct clerical errors in a final decision with leave of the Commission. 29 C.F.R. § 

2700.69(c). 

 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

MARFORK COAL COMPANY, LLC 

Docket No. WEVA 2021-0186 

A.C. No. 46-09048-528669 

43 FMSHRC Page 399
Upon consideration of the Judge’s request, it is granted. We reopen the case, remand the 

matter to the Judge, and grant her leave to correct the error as requested. 

/s/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Chair 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

43 FMSHRC Page 400
Distribution: 

Elmer J. Blair, II 

CLR, MSHA, Beckley District 

1293 Airport Road 

Beaver, WV 25813 

blair.elmer@dol.gov 

Eric Silkwood, Esq. 

300 Running Right Way 

P.O Box 261 

Julian, WV 25529 

ESilkwood@AlphaMetResources.com 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Administrative Law Judge Jacqueline Bulluck 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

43 FMSHRC Page 401
Washington, DC 20004-1710 

jbulluck@fmshrc.gov 

43 FMSHRC Page 402