i 

March 2020 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

03-12-20 SOLAR SOURCES MINING, LLC LAKE 2017-99 Page 181 

ADMINISTRATIVE LAW JUDGE DECISIONS 

03-03-20 K C TRANSPORT, INC. WEVA 2019-458 Page 221

03-26-20 BRAGG CRANE SERVICE WEST 2019-0303 Page 240

03-27-20 CONSOL PENNSYLVANIA COAL 

CO., LLC 

PENN 2018-0243 Page 251

03-30-20 KOMSAN (TROY) WOODEN v. 

GENESIS ALKALI, LLC 

WEST 2018-0306-

DM 

Page 275

03-31-20 SUNBELT RENTALS, INC. VA 2013-0291 Page 293

03-31-20 THE HARRISON COUNTY COAL 

COMPANY 

WEVA 2020-0203 Page 300
ii 

No review was granted or denied during the month of March 2020.
COMMISSION DECISIONS
42 FMSHRC Page 180
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

March 12, 2020 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. LAKE 2017-99 

SOLAR SOURCES MINING, LLC 

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners 

DECISION

BY: Rajkovich, Chairman; Young, and Althen, 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”) and concerns a citation issued by the Secretary of

Labor’s Mine Safety and Health Administration (“MSHA”) to Solar Sources Mining, LLC. The

citation alleges that Solar Sources failed to provide berms of substantial construction at a dump

site as required by the mandatory safety standard at 30 C.F.R. § 77.1605(l) (“Berms, bumper

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

dumping locations.”). Gov. Ex. 3.

Solar Sources contested the citation before the Commission. After a hearing, an 

Administrative Law Judge affirmed the alleged violation, found the violation was “significant 

and substantial,” (“S&S”)1 and held that the violation was the result of high negligence and an 

unwarrantable failure to comply with the standard. 40 FMSHRC 462 (Mar. 2018) (ALJ). The 

Judge assessed a civil penalty of $68,300, the same penalty that the Secretary had originally 

proposed. 

Solar Sources filed a petition for discretionary review, which the Commission granted. 

On review, Solar Sources contends that the Judge erred in assessing the penalty because he failed 

to make adequate findings for each of the penalty criteria in section 110(i), 30 U.S.C. § 820(i), of 

the Mine Act as part of his analysis. 

Given that the Judge clearly failed to follow Commission precedent and fell far short of 

making adequate findings, we agree. For the reasons contained herein, we vacate the Judge’s 

penalty assessment and remand the case to the Judge to complete his penalty criteria findings and 

reassess a penalty. 

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.”

42 FMSHRC Page 181
I.

Factual and Procedural Background 

This proceeding arises from an accident that occurred at the Shamrock Mine, an Indiana 

surface coal mine operated by Solar Sources. On June 27, 2016, miner Shawn Standish was on 

his second trip of the morning, driving a haul truck carrying slurry to the mine’s dump pit. 

Standish backed his truck up to the edge of the dump pit and stopped the vehicle. He felt the 

truck’s rear tires sink. Standish attempted to accelerate away from the edge, but his truck would 

not move. Standish made the decision to abandon the truck as it continued to sink. He climbed 

from its cab and jumped. The truck descended over the edge, landing upside-down 47 feet into 

the pit. Standish landed on the ground above, breaking both heels and one ankle. 

MSHA Inspector Jason Noel investigated the accident. Noel issued a section 104(d)(1)2

order, alleging that Solar Sources failed to conduct an adequate on-shift examination of the dump 

site as required by 30 C.F.R. § 77.1713(a). Gov. Ex. 4. The Judge vacated the order, finding that 

the cited exam actually occurred about 20 minutes prior to the start of the day shift.3 The 

Secretary did not petition the Commission for review of the Judge’s decision and, therefore, this 

order is not before us. 

Noel also issued a section 104(d)(1) citation, alleging that a berm of substantial 

construction was not provided at the dump site as required by 30 C.F.R. § 77.1605(l). Gov. Ex. 

3. The Judge affirmed the citation, finding that Solar Sources failed to provide berms as required

by section 77.1605(l). 40 FMSHRC at 491-92. The Judge found that wet slurry repeatedly falling

onto the berm during the dumping process compromised the integrity of the berm. He also found

that although it is likely that the berm was originally substantially constructed, it had deteriorated

over time. The Judge concluded that the violation was S&S, the result of high negligence, and an

unwarrantable failure to comply with the safety standard. The Secretary had proposed a $68,300

civil penalty through his special assessment protocol at 30 C.F.R. § 100.5. The Judge assessed

the exact same amount as the proposed penalty, finding it to be “consistent with the record and

the evidence introduced at hearing.” Id. at 495 (citing Rock N Roll Coal Co., 38 FMSHRC 2831,

2865 (Nov. 2016) (ALJ)).

Solar Sources contends that the Judge erred in assessing a civil penalty because he 

assessed a civil penalty without associated findings for each of the statutory penalty criteria set 

2

 Section 104(d)(1) authorizes the Secretary to issue a citation alleging an unwarrantable 

failure to comply with a mandatory safety standard and to issue an order withdrawing miners 

from any affected area if the Secretary determines that a second unwarrantable failure to comply 

occurs within the subsequent 90 days. 30 U.S.C. § 814(d)(1). An “unwarrantable failure” 

represents aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 

9 FMSHRC 1997, 2001 (Dec. 1987). 

3

 The Order alleged “[t]he certified person conducting the exam drove by the gob dump 

and only glanced the area.” Gov. Ex. 4. The Judge reasoned that an examination that occurs prior 

to the start of a shift does not constitute an on-shift examination; the safety standard requires that 

the examination take place during the shift. See 40 FMSHRC at 490. 

42 FMSHRC Page 182
forth in section 110(i) of the Act. Solar Sources further maintains that the Judge erred when he 

found that the Secretary’s “Narrative Findings for a Special Assessment” were consistent with 

the Judge’s own findings and conclusions. 

The Secretary maintains that the Judge made the required penalty criteria findings 

throughout his decision, and that substantial evidence in the record supports the Judge’s penalty 

assessment. 

II. 

Disposition 

The Mine Act bifurcates, between the Secretary and the Commission, the responsibility 

to propose and assess civil penalties. The Secretary proposes a civil penalty pursuant to section 

105(a) of the Mine Act. 30 U.S.C. § 815(a). Then, if the operator contests the citation, a 

Commission Administrative Law Judge adjudicates the case and assesses the penalty. 

The Secretary has promulgated penalty regulations for two types of proposed 

assessments: regular assessments and special assessments. Proposed regular assessments are 

made pursuant to 30 C.F.R. § 100.3. Regular penalty proposals result from the assignment of 

points to the appropriateness of the penalty to the size of the business, the operator’s history of 

violations, negligence, and gravity based on the allegations in the citations.4 The cumulative total 

of the points determines a penalty proposal through reference to a penalty table. MSHA 

promulgated the regular assessment regulations through notice-and-comment rulemaking. 

Proposed special assessments are governed by 30 C.F.R. § 100.5, which only provides 

that “MSHA may elect to waive the regular assessment under [section] 100.3 if it determines that 

conditions warrant a special assessment.” Section 100.5(b) states that “[w]hen MSHA 

determines that a special assessment is appropriate, the proposed penalty will be based on the six 

criteria set forth in [section] 100.3(a). All findings shall be in narrative form.” 30 C.F.R. 

§ 100.5(b).

Section 105(d) of the Mine Act, in turn, provides mine operators with the right to contest 

the Secretary’s proposed civil penalty before the Commission. 30 U.S.C. § 815(d). Pursuant to 

section 110(i) of the Act, the Commission independently assesses a civil penalty de novo based 

on findings of fact and consideration of six penalty 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

4

 MSHA does not assign points for the effect upon the ability to stay in business or good 

faith in achieving rapid compliance. 

42 FMSHRC Page 183
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). 

Upon finding a violation, a Judge assesses a penalty after a due process hearing and 

findings of fact. 30 U.S.C. § 815(d), 820(i); 29 C.F.R. § 2700.30(a). In assessing a penalty de 

novo, a Judge is neither bound by the Secretary’s Part 100 regulations nor by the originally 

proposed penalty. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 

1984), aff’g 5 FMSHRC 287 (Mar. 1983). Judges are accorded broad discretion to assess civil 

penalties, but their decisions must reflect proper consideration of the section 110(i) penalty 

criteria. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). The Judge must provide an 

explanation if the penalty assessment substantially diverges from the Secretary’s proposed 

regular assessment. Sellersburg, 5 FMSHRC at 293. The Commission reviews the Judge’s 

penalty determination under an abuse of discretion standard. Douglas R. Rushford Trucking, 22 

FMSHRC 598, 601 (May 2000). 

In Sellersburg, the Commission established an abiding rule for penalty assessments. The 

Commission requires that, in assessing a penalty, the 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.

5 FMSHRC at 292-93 (emphasis added). 

In Cantera Green, 22 FMSHRC 616, 621 (May 2000), the Commission further 

explained: 

[w]hile the findings and explanations relating to a penalty

assessment do not have to be exhaustive, they must at least provide

the Commission with a basis for determining whether the judge

complied with the requirement to consider and make findings

concerning the section 110(i) penalty criteria.

In Cantera Green, the Commission vacated and remanded penalty assessments because the 

Judge failed to fully consider the statutory criteria for each citation at issue and also “failed to 

adequately explain the basis for the penalties he assessed for the violations . . . .” Id. at 626. 

The obligation to make findings on the penalty criteria is not merely a Commission 

predilection. Due process demands that the Commission inform operators adequately, and with 

sufficient specificity, of the basis upon which the Commission imposes a penalty. If the Judge 

42 FMSHRC Page 184
does not provide a discussion of the penalty criteria, including when appropriate how the penalty 

criteria interplay with one another, then the respondent is not informed sufficiently of the 

reasoning for a civil monetary penalty.

Further, without a cogent explanation by the Judge of the assessment, the Commission 

and reviewing courts cannot perform their review function conscientiously. A sufficient 

explanation is essential to the fair review of an assessment. Thus, in discussing each of the six 

criteria, the Judge must provide a clear and sufficient understanding of the basis for the assessed 

penalty. 

This duty applies not only to making findings on each of the penalty criteria but also to 

analyzing any relationships between the criteria that may affect the ultimate penalty assessment. 

Thus, for example, a discussion of the size of a mine and the frequency of violations in 

juxtaposition may be informative to the reasoning behind a penalty evaluation more fully than 

looking at each criterion as a distinct element of a penalty. 

We need not plow through a tedious review of the dozens of remands of penalty 

assessments due to the failure of Judges to make the necessary findings. Contrary to our 

dissenting colleague’s assertions (slip op. at 33-36), remands are not extraordinary and are, in 

fact, necessary when a Judge does not follow Commission directives. Twenty years ago, the 

Commission remarked on the failure of Judges to meet the requirements rooted in due process 

and an adequate basis for review: 

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. See, e.g., 

Secretary of Labor on behalf of Hyles v. All American Asphalt, 21 

FMSHRC 119, 142 (Feb. 1999); Rock of Ages, 20 FMSHRC at 

126; Secretary of Labor on behalf of Glover v. Consolidation Coal 

Co., 19 FMSHRC 1529, 1539 (Sept. 1997); Fort Scott, 19 

FMSHRC at 1518; Thunder Basin Coal Co., 19 FMSHRC 1495, 

1502-03 (Sept. 1997). In the majority of cases heard under the Act, 

records are developed on the section 110(i) criteria and penalties 

are assessed properly and efficiently. Cases in which this does not 

occur, however, have become frequent enough to give us pause. 

We intend that the three decisions we issue today will convey our 

message that it is imperative that this Commission avoid giving 

short shrift to our statutory duty to assess Mine Act penalties under 

section 110(i). 

Hubb Corp., 22 FMSHRC 606, 612 (May 2000).5

 

5

 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). This requirement serves two functions. First, 

(continued...) 

42 FMSHRC Page 185
Despite the decision in Hubb, the Commission continues to find it necessary to remand 

penalty determinations when Judges fail to supply adequate penalty assessments—that is, an 

assessment meeting the requirements of due process and adequately explaining the penalty 

assessment to allow Commission review. E.g. Virginia Slate Co., 24 FMSHRC 507, 514-15 

(June 2002); Sedgman, 28 FMSHRC 322, 342-44 (June 2006); Mining & Property Specialists, 

33 FMSHRC 2961, 2964 (Dec. 2011); Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3104 

(Dec. 2014).6

 That is precisely the situation with this Judge and this case.

Of course, the Commission does not exalt form over substance. It is not possible to 

enunciate a precise formula for recitation of penalty factors that would fit all cases. 

Consequently, as must be obvious, the evaluation of compliance with the requirement for an 

adequate review of all criteria is case-specific. The Commission does not remand assessments 

imposed with less than perfection when the Judge’s explanation is sufficient in the context of the 

totality of the case to meet the requirements of due process and fair and informed review. E.g., 

Spartan Mining Co., 30 FMSHRC 699, 724 (Aug. 2008) (stating that the operator took issue 

only with the two factors of negligence and gravity upon which the Judge based his assessment); 

Knight Hawk Coal, LLC, 38 FMSHRC 2361, 2373 (Sept. 2016) (noting that the Judge made 

findings on five factors and making a finding on the sixth factor that the Commission found did 

not disturb the penalty assessed by the Judge). 

The outcome of this case, therefore, does not depend upon identification of a legal 

standard for making penalty assessments. The standards are well established. Each decision must 

be case-specific, and the Commission’s decision turns on whether the Judge’s exposition of the 

penalty factors permits the Commission to determine that the Judge has fully considered the 

penalty criteria individually and in relationship to one another. 

As set forth below, the Judge’s discussion in this case falls far short of meeting the 

standard necessary for fair review, as required by Commission case law. Therefore, the only

proper course is remand.7 

5

 (...continued) 

the findings provide the operator with notice as to the basis of the penalty assessment. Second, 

the Commission is provided the information necessary to review the Judge’s assessment. See 

Sellersburg, 5 FMSHRC at 292-93. 

6

 The requirement for a sufficient explanation applies to all assessments. However, it is 

notable that the Mine Act utilizes a graduated scheme of enforcement. That graduated approach 

applies to the assessment of penalties—that is, penalties for violations increase toward a statutory 

maximum as they approach severely violative conduct. In considering imposition of a maximum 

(or close to maximum) penalty, it becomes particularly important under a graduated scheme of 

enforcement to completely discuss the full impact of each penalty criterion. 

7

 Commissioner Traynor concurs on Parts A and B of this opinion, but writes separately 

to dissent from Parts C and D. 

42 FMSHRC Page 186
A. The Judge Erred by Failing to Fully Consider the Statutory Penalty Criteria.

In the proceeding before us, the Judge assessed a $68,300 civil penalty and provided only 

a terse statement of the basis for his assessment. 

Having found that the violation identified in Citation No. 

9102704 was established and that the Inspector’s evaluation of the 

gravity and negligence and his finding of unwarrantable failure and 

significant and substantial were demonstrated that no cognizable 

mitigation was advanced, the Court therefore finds, that upon 

application of the statutory criteria, the penalty proposed by the 

Secretary should be applied. [FN 15] 

[FN 15] The other statutory factors were duly considered. From 

the parties’ stipulation, it is noted that the factors of good faith and 

the ability to continue in business did not impact the penalty 

determination. Regarding production, Atkinson informed that the 

mine produces about 1.6 million (tons). Tr. 301. This means the 

Shamrock Mine is a large mine. The violation history is reflected 

in Exhibit P 2 . . . . 

40 FMSHRC at 495 & n.15 (emphasis added). 

From the foregoing, it is obvious that the Judge limited his analysis discussion to only 

two of six statutory factors in the text. In a footnote, he summarily discharged the “other 

statutory factors” as “duly considered.” This abrupt footnote is no demonstration that he 

considered all criteria sufficiently. In addition to the overall short shrift given these statutory 

criteria, the Judge’s decision was totally deficient of any evaluation of “the operator’s history of 

previous violations” and “the demonstrated good faith of the [operator] charged in attempting to 

achieve rapid compliance after notification of a violation.” See 30 U.S.C. § 820(i); 29 C.F.R. 

§ 2700.30(a).

The 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 finding on the possible 

significance of such evidence. The Judge merely references Government Exhibit P-2.8

 

The Judge’s decision is devoid of reasoning as to whether this record of compliance had 

any effect on the penalty given his negligence and gravity findings. Judges must bear in mind 

that they are imposing civil penalties to incentivize compliance rather than criminal penalties to 

punish a crime. An operator’s history of violations may be highly relevant to incentivizing 

8

 Ironically, that 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. 

42 FMSHRC Page 187
compliance. In the absence of circumstances not present here, it is error to ignore the history of 

violations in imposing a penalty merely by noting an exhibit in the record.9

Moreover, the parties expressly argued the importance of the history of violations to the 

proper penalty. See Oral Arg. Tr. 15 (“a very good assessment history, very few . . . .”); Oral 

Arg. Tr. 66 (“a lot of violations for a company”). Thus, the Judge’s error of omission here is 

especially obvious because the significance of the history of violations was a matter of specific 

dispute. This is a “question of fact” that remains unresolved, despite our colleague’s 

protestations to the contrary. Slip op. at 33 & n.5. 

The Judge also erred in stating that the parties had entered stipulations with respect to 

two penalty factors. 40 FMSHRC at 495 n.15 (“[f]rom the parties’ stipulations, it is noted that 

the factors of good faith and ability to continue in business did not impact the penalty 

determination.”). It is clear from the record that they had not entered into such stipulations. The 

parties’ joint stipulations have no reference at all to either good faith abatement or the impact of 

a $68,300 penalty.10 

In fact, the parties argued over the significance of the operator’s response to compliance 

“after notice of violations.” The parties continue to dispute the sufficiency of the operator’s 

efforts and, therefore, the Judge must make such a finding before reassessing a penalty.11 

Accordingly, remand is essential in this case in the interest of justice. On remand, we 

direct the Judge 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, consistent with the requirements of Commission Procedural Rule 30(a) and section 

110(i) of the Mine Act. He must review these 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.12

9

 In Wolf Run Mining Company, 35 FMSHRC 536 (March 2013), the Commission stated 

that consistent with the graduated enforcement scheme of the Act, an operator’s past history of 

significant violations should be considered in considering assessing higher penalties. Id. at 542. 

By parity of reasoning, an operator’s history of few violations is relevant in considering the 

assessment of higher penalties. 

10 Because Solar Sources did not contend that payment of the penalty would affect its 

ability to stay in business, the mistake as it relates to that particular penalty criterion was 

harmless error. In Sellersburg, the Commission held, “In the absence of proof that the imposition 

of authorized penalties would adversely affect its ability to continue in business, it is presumed 

that no such adverse effect would occur.” 5 FMSHRC at 294. 

11 The Secretary argues that Solar Sources did not demonstrate good faith abatement 

efforts. Oral Arg. Tr. 37-38, 57. 

12 The Commission is concerned exclusively with the adjudicative process and does not 

have a basis, at this point, for determining whether or not the amount assessed by the Judge was 

appropriate. 

42 FMSHRC Page 188
B. The Judge Need Not Reconcile the Differences Between His Penalty Analysis and 

the Secretary’s Narrative Findings for a Special Assessment. 

In assessing the $68,300 penalty, the Judge stated that “the special assessment in this 

matter is consistent with the record and the evidence introduced at hearing.” 40 FMSHRC at 495 

(citing Rock N Roll Coal, 38 FMSHRC at 2865). The Judge cited the non-precedential ALJ 

decision Rock N Roll Coal rather than the Commission’s relevant decision, The American Coal 

Company, 38 FMSHRC 1987 (Aug. 2016) (“AmCoal I”). We note, however, that Rock N Roll 

Coal actually contains findings for each of the penalty criteria and an explanation of the 

significance of those findings exerted on that Judge’s penalty calculation. 38 FMSHRC at 2865-

66. Here, the Judge made no such findings. He gave no such explanation. Hence, he did not 

follow Rock N Roll Coal in a proper manner. There is certainly no error in citing a colleague’s 

decision; however, the Judge is bound by Commission precedent and his reliance on a nonprecedential ALJ decision should have detailed and clarified how his own independent judgment 

was informed by the decision in Rock N Roll Coal. 

Solar Sources contends that the Judge erred by finding that the Secretary’s “Narrative 

Findings for Special Assessment” 13 was consistent with the record evidence when, in fact, there 

were discrepancies between the Judge’s findings and the Secretary’s allegations. Specifically, the 

Secretary alleged that the operator knew or should have known of the poor condition of the 

berms because a certified person had performed an on-shift examination prior to the accident. 

Notably, the order alleging an inadequate on-shift examination was vacated by the Judge. 

Furthermore, the Secretary’s narrative alleged that the berms were constructed of slurry while the 

Judge found that, originally, the berms had been constructed of shot rock. 

We find that the Judge’s error was not in failing to reconcile any differences between his 

findings and the Secretary’s pre-hearing allegations, but instead was in failing to exercise his 

own responsibility to conduct an independent and reasoned analysis, using the record evidence.

See AmCoal I, 38 FMSHRC at 1995 (“The Judge’s assessment is made independently and, 

regardless of the Secretary’s proposal, the Judge must support the assessment based on the 

penalty criteria and the record.”) (emphasis added). 

13 The portion of the Secretary’s “Special Assessment Narrative Form” used to derive the 

amount of the special assessment penalty proposal does not appear in this record. It was, 

however, provided to the mine operator in AmCoal I. 38 FMSHRC at 1996. The Secretary bears 

the burden of justifying his penalty proposal under the criteria, and “[w]hen a violation is 

specially assessed that obligation may be considerable.” Id. at 1993. Providing a rationale for a 

special assessment is essential to providing more clarity to the Judge, and to the Commission on 

review, and the Secretary is obliged to provide more than an opaque process and a secret theory 

of the case. See Sellersburg, 5 FMSHRC at 292-93 (explaining that requirement to discuss 

penalty criteria is necessary to provide adequate foundation for review). 

42 FMSHRC Page 189
On remand, the Judge is directed to independently reassess a penalty in accordance with 

AmCoal I. The Judge must then explain the rationale for his penalty assessment using the 

statutory penalty criteria and the record evidence.14 

C. The Judge is Not Required to Reconcile His Reassessed Penalty with the Amount 

Proposed by the Secretary According to his Special Assessment Procedures. 

In remanding this matter for penalty reassessment, we note that the United States Court 

of Appeals for the District of Columbia Circuit mused in the recent case, American Coal 

Company v. FMSHRC, that Commission case law “seems to point in two directions” regarding 

Commission Judges’ use of the Secretary’s penalty proposal as any sort of reference point. 933 

F.3d 723, 728 (D.C. Cir. 2019). In strongly affirming the Commission’s independence in 

determining penalties, the District of Columbia Circuit stated a perception that, for it, seems to 

have been troubling—namely: 

the Commission’s precedent seems to point in two directions. On 

the one hand, an ALJ’s penalty ‘assessment must be independent, 

and the Secretary’s proposal is not a baseline or starting point that 

the Judge should use [as] a guidepost for his/her assessment’ 

American Coal, 38 FMSHRC at 1990. On the other hand, ALJs are 

supposed to provide ‘an explanation of any substantial divergence 

from the penalty proposal of the Secretary.’ 

Id. 

 The court’s apparent impression of an inconsistency in Commission law demands prompt 

clarification. Affected parties, Commission Judges, and courts must understand the fundamental 

importance of the Commission’s penalty directives—especially because the “two directions” 

noted by the court are not separate, divergent paths. To the contrary, each directive is a discrete, 

bedrock principle of the Commission’s jurisprudence that operates with the other to ensure fair, 

equitable, and consistent penalty assessments.15 The rationale for these directives rests upon the 

fundamental distinction between regular and special assessments. 

 Many Commission decisions state, directly or indirectly, that the Secretary’s penalty 

proposal is not a baseline or starting point, while other decisions require Judges to explain any 

substantial divergence from the penalty proposal of the Secretary. Compare AmCoal I, 38 

14 “While the findings and explanations relating to a penalty assessment do not have to be 

exhaustive, they must at least provide the Commission with a basis for determining whether the 

judge complied with the requirement to consider and make findings concerning the section 

110(i) penalty criteria.” Cantera Green, 22 FMSHRC at 621. 

15 The circuit court correctly recognized that the Commission split evenly in its review of 

the Administrative Law Judge’s decision. Accordingly, it found that it would “review the ALJ’s 

legal determinations de novo and factual determinations for substantial evidence.” 933 F.3d at 

726. On this point, no Commission decision was cited by the circuit court and it is unknown the 

extent to which, if at all, the court reviewed the separate opinions of the Commissioners. 

42 FMSHRC Page 190
FMSHRC at 1990 (stating that “the Secretary’s [penalty] proposal is not a baseline or starting 

point that the Judge should use a guidepost for his/her assessment”) with Sellersburg, 5 

FMSHRC at 293 (requiring “a sufficient explanation of the bases underlying the penalties 

assessed by the Commission” for assessments which substantially diverge from MSHA’s 

proposal). 

While, at first, these may appear to be on divergent paths, they work together to preserve 

the credibility of the administrative scheme and avoid the appearance of arbitrariness. In their 

proper context, each of these principles is correct. They are complementary approaches that 

serve the same important objective. 

(1) The Basic Principles

We established basic principles, long ago, for the fair and consistent assessment of 

penalties, which include both “directions” referred to by the circuit court along with a third 

important principle, in a case decided relatively soon after full implementation of the Mine Act. 

Sellersburg, 5 FMSHRC at 290-94. In Sellersburg, the operator challenged an Administrative 

Law Judge’s penalty assessments as excessive and an abuse of discretion. The operator further 

argued that the Judge erred by not following sufficiently the Secretary’s penalty assessment 

regulations. In support of its position, the operator noted the wide divergence between the 

penalties proposed by the Secretary and those assessed by the Judge, as well as the Judge’s 

failure to consider each of the statutory penalty criteria. 

 In considering these challenges, the Commission identified three principles that continue 

to guide Commission penalty jurisprudence: 

1. The Secretary’s penalty proposals do not bind the Commission. The Commission 

 assesses penalties de novo in accord with section 110(i) of the Mine Act, 30 U.S.C. 

 § 820(i). Id. at 291-92. 

2. Judges must make findings of fact for each of the six statutory penalty criteria. Id. 

3. Judges must explain any substantial divergence from the penalty proposal of the 

Secretary regarding regular assessments. Id. at 293. 

 The first two principles follow directly from the plain words of the Mine Act. The court’s 

decision in American Coal is the latest in a long line of decisions that leave no doubt whatsoever 

about the Commission’s authority to set penalties of contested citations and orders after hearing. 

Further, Commission case law, including the present case, reiterates the necessity for findings on 

each of the six penalty factors identified in the Mine Act. See, e.g., Dolese Bros. Co., 16 

FMSHRC 689, 695-96 (Apr. 1994) (remanding to the Judge where he failed to enter findings on 

four of the penalty criteria). 

The third Sellersburg principle does not flow directly from the plain wording of the Mine 

Act. It arises from the Commission’s proper concern for the fair and equitable administration of 

42 FMSHRC Page 191
penalty assessments across a large, diverse industry, whose operators vary greatly in their types, 

sizes, sophistication, and safety performance.16 

 From these and other factors and subcategories, it is clear that the Commission sets 

penalties over an almost limitless number of permutations of penalty factors. Rather than 

promulgating rules or establishing generalized guidelines for the evaluation and weighing of 

penalty factors through case law, the Commission has relied upon the substantial divergence 

principle to establish general uniformity in the assessment of penalties. As explained below, 

however, this third principle cannot be applied to special assessments because it is grounded on 

the general transparency and consistency of MSHA’s process for developing regular assessment

proposals. 

 (2) Regular Assessments 

On May 30, 1978, MSHA published final rules pertaining to the proposed assessment of 

civil penalties under the Mine Act for coal mines and metal and nonmetal mines. 43 Fed. Reg. 

23514, 23515 (May 30, 1978). The rules continued the use of a formula system developed by the 

Mine Enforcement Safety Administration (“MESA”) for imposition of most penalties under the 

Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976) (amended 

1977) (“Coal Act”). The formulaic system results in “regular” penalties. 30 C.F.R. §100.3. 

Regular penalties account for approximately 99 percent of the penalties proposed by MSHA.17

 Under the regular point system, MSHA assigns numerical points to four of the six penalty 

factors—size of operator, frequency of violations, negligence, and gravity. The cumulative total 

of the points determines a penalty through reference to a penalty table. 30 C.F.R. § 100.3(g). 

This regular system achieves a kind of standardized and normative assignment of penalties 

 

16 Operators range in size from family-owned businesses to multinational corporations. 

Moreover, even among similar types of operations of the same general size, mines have varying 

histories of violations. Negligence for a specific violation may fall along the continuum between 

no negligence and willful or intentional misconduct, and the gravity, as characterized by the 

Secretary, may also vary greatly. 

17 In AmCoal I, 38 FMSHRC at 1987, the Secretary submitted a supplemental statement 

in response to questioning at the Commission’s oral argument in that case, stating that “In fiscal 

year 2015, slightly less than one percent of all assessments – 1,069 of 115,483, or .925 percent – 

were special assessments.” Sec’y letter dated May 2, 2016 at 3. 

42 FMSHRC Page 192
across all sizes and kinds of operators and degrees of negligence and gravity.18 The Commission 

recognized this benefit in Sellersburg, holding: 

When based on further information developed in the adjudicative 

proceeding, it is determined that penalties are appropriate which 

substantially diverge from those originally proposed [by the 

Secretary], it behooves the Commission and its judges to provide a 

sufficient explanation of the bases underlying the penalties 

assessed by the Commission. If a sufficient explanation for the 

divergence is not provided, the credibility of the administrative 

scheme providing for the increase or lowering of penalties after 

contest may be jeopardized by an appearance of arbitrariness. 

 Sellersburg, 5 FMSHRC at 293 (emphasis added). 

 MSHA’s regular penalty system represents the agency’s professional judgment on the 

relative importance of the facts of violation and each of the penalty factors and sub-factors. 

Given the normative formula used by MSHA to propose a penalty of record, the regular penalty 

system is useful for proposing, insofar as possible, fair and equal penalties across many operators 

and many penalty factors. When an operator receives a proposed assessment, it has a basis for 

determining how the penalty was calculated. 

This transparency promotes public confidence in the penalty system, and the Commission 

has recognized the need to preserve consistency and transparency in our proceedings, while 

allowing our Judges to make generally binding findings of fact and to apply the law so that each 

case is decided on the particular facts and circumstances in the record. Commission Judges have 

the authority to assess the penalties, but the Commission has determined to provide instructions 

regarding that authority to accommodate the interests of fairness and consistency. 

Thus, when the penalty assessed by the Judge substantially diverges from a proposed, 

regularly assessed penalty, the Commission requires Judges to provide an explanation for the 

18 The regulations recognize the need for fairness in the assessment of penalties 

across the range of operators. Section 100.1 of the regulations provides: 

This part provides the criteria and procedures for proposing civil 

penalties under sections 105 and 110 of the Federal Mine Safety 

and Health Act of 1977 (Mine Act). The purpose of this part is to 

provide a fair and equitable procedure for the application of the 

statutory criteria in determining proposed penalties for violations, 

to maximize the incentives for mine operators to prevent and 

correct hazardous conditions, and to assure the prompt and 

efficient processing and collection of penalties. 

30 C.F.R. § 100.1 (emphasis added). 

42 FMSHRC Page 193
divergence to avoid an appearance of arbitrariness in penalty assessments.19 Judges have 

properly followed the Commission’s directive in literally hundreds of cases over the years since 

Sellersburg was issued in 1983.20

 Recognition of the normative benefits of regular assessments does not diminish the 

Commission’s duty and authority to set penalties independently based upon findings of fact on 

all penalty factors. Rather, the Commission has provided a directive to Judges in order to 

harmonize its exercise with the need for fairness and transparency in penalty assessments. While 

we reaffirm the requirement to explain an assessment that is substantially divergent from a 

proposed regular penalty, the Commission must recognize the differences between regular and 

specially assessed MSHA penalty proposals. 

 (3) Special assessments

 Special assessments require a different analysis than regular penalty proposals. MSHA 

calculates special penalties to substantially increase penalties calculated under the regular point 

system, in order to address agency enforcement priorities. It does so by adding points to the 

negligence and gravity elements, without accounting for other statutory penalty criteria or 

considering the specific facts of the violation. Considering a penalty thus calculated in the same 

manner as a regular assessment is inconsistent with Sellersburg, because the proposed special 

assessment is itself a substantial divergence from a regular penalty. 

 

19 Accordingly, the Commission routinely refers to the role of regular penalty 

assessments in evaluating citations. See Unique Electric, 20 FMSHRC 1119, 1123 & n.4 (Oct. 

1998); Thunder Basin, 19 FMSHRC at 1504; Dolese Bros. Co., 16 FMSHRC at 695 (finding that 

the Judge was required to explain a 60% increase in his civil penalty assessment). See also Dan 

J. Sheehan Co. v. OSHRC, 520 F.2d 1036, 1040-1042 (5th Cir. 1975); Clarkson Construction 

Co. v. OSHRC, 531 F.2d 451, 456 (10th Cir. 1976). 

20 Of course, the circuit court is correct that, from the statutory perspective of the 

language of the Mine Act, the Secretary’s proposed regular penalty is a litigating position. 

American Coal, 933 F.3d at 727. However, as a matter of Commission case law, the Commission 

has recognized that the penalty proposed through the regular penalty assessment procedures 

results from the only existing system designed to provide a measure of uniformity to assessments 

across the multi-factored penalty process. AmCoal I, 38 FMSHRC at 1990-92, 1994-95. As the 

circuit court also recognizes, Congress empowered the Commission to assess penalties of 

contested citations and orders after a due process hearing under the Mine Act. American Coal, 

933 F.3d at 725. Given the Congressional basis for the Commission’s authority, courts 

undoubtedly must defer to reasonable guidelines established by rule or case law by the 

Commission to superintend Administrative Law Judges in the assessment of penalties. 

42 FMSHRC Page 194
(a) The Regulatory Guidance for MSHA 

As promulgated in 1978, section 100.5 (then section 100.4) identified specific categories 

of violations for review for possible special assessment.21 See 30 C.F.R. § 100.4 (1978); 43 Fed. 

Reg. 23517, 23519 (May 30, 1978). In 2007, however, MSHA amended section 100.5 to 

eliminate any identification of categories of violations for possible special assessment. See 72 

Fed. Reg. 13592, 13621-22 (Mar. 22, 2007). As amended, section 100.5 gives MSHA openended authorization for special assessments. The principal operative provision of the current 

section 100.5 is subsection (a) that states only, “MSHA may elect to waive the regular 

assessment under § 100.3 if it determines that conditions warrant a special assessment.” 

Subsection (b) provides that all findings shall be in narrative form. 30 C.F.R. § 100.5. 

 MSHA, then, makes special assessments through a combination of internal discretionary 

decisions and a special assessment formula. Neither of these aspects of special assessment has 

received public notice and comment. Thus, neither the consistency nor transparency of the 

regular penalty process is inherent in the special assessment process.22 

21 The 1978 rule actually stated that special assessments may be appropriate in cases of 

“fatalities and serious injuries, unwarrantable failures to comply with mandatory health and 

safety standards or patterns of violations under section 104 of the Act, the operation of a mine in 

the face of a closure order, the failure to permit an authorized representative of the Secretary of 

Labor to perform an inspection or investigation, discrimination violations under section 105(c) of 

the Act, failure to abate a violation within the prescribed period, violations by individuals, 

violations by designated independent contractors, and in other appropriate cases.” 30 C.F.R. 

§ 100.4 (1978). Prior to enactment of the MINER Act of 2006, that list had been refined to the 

following: 

(1) Violations involving fatalities and serious injuries; 

(2) Unwarrantable failure to comply with mandatory health and 

safety standards; 

(3) Operation of a mine in the face of a closure order; 

(4) Failure to permit an authorized representative of the Secretary 

to perform an inspection or investigation; 

(5) Violations for which individuals are personally liable under 

section 110(c) of the Act; 

(6) Violations involving an imminent danger; 

(7) Discrimination violations under section 105(c) of the Act; and 

(8) Violations involving an extraordinarily high degree of 

negligence or gravity or other unique aggravating circumstances. 

30 C.F.R. § 100.5 (2006). 

22 Recently, however, an Executive Order was issued emphasizing the importance of 

transparency in administrative enforcement actions generally and especially for policies affecting 

enforcement. See Executive Order on Promoting the Rule of Law Through Transparency and 

Fairness in Civil Administrative Enforcement and Adjudication, October 9, 2019. 

42 FMSHRC Page 195
 The formula for special assessments provides for substantial increases in negligence and 

gravity points versus those that would be regularly-assessed, but the agency’s authority to refer a 

penalty for special assessment is not limited to considerations of negligence or gravity. There is 

no penalty increase in the formula based on the size of the operator or frequency of violations. 

Accordingly, if a mine operator has an excessive history of violations, MSHA arbitrarily adds 

points to negligence and gravity rather than frequency to increase the total points for assessment. 

Based upon the addition of points to negligence and gravity, the addition of penalty 

points through special assessment often results in a multiple (quadruple or quintuple) increase in 

the penalty. These enhanced proposed penalties arise only from the independent decisions of 

MSHA officials to heavily penalize a particular violation. 

Accordingly, while the regulatory guidance may provide some assistance to MSHA in 

specially assessing a penalty, it does not provide adequate guidance to a Judge to ultimately set 

the appropriate penalty.

(b) MSHA’S Program Policy Manual Guidance

 

MSHA’s Program Policy Manual (“PPM”) also provides some guidance to the agency on 

proposing special assessments, but it also falls short of proper guidance to a Commission Judge. 

MSHA announced via its PPM that it affirmatively will specially assess a few specific types of 

violations, but the types of violations subject to consideration have already been changed without 

input from the public, and the non-binding guidance in the PPM may be changed again, at any 

time, without notice or comment. III MSHA, U.S. Dep’t of Labor, PPM, Part 100, at 101-02 

(Dec. 2013). 

Separately, the PPM identifies violations that MSHA officials must consider for special 

assessment. III, MSHA, PPM, Part 100, at 101. Together, these categories encompass more than 

60 mandatory standards as well as all violations involving an injury or allegedly flagrant 

violation. The breadth of scope within which the agency exercises its discretion to specially 

assess is enormous and unregulated.23 Coupled with the fact that MSHA assesses less than one 

percent of its penalties under the special assessment program, this vast expanse radically 

increases the danger for arbitrariness, because, obviously, not every violation so considered 

results in a special assessment. Oral Arg. Tr. 60. 

The PPM also provides a summary of the internal procedures used to make special 

assessment decisions—generally, completion of a Special Assessment Recommendation 

(“SAR”) form by a District Manager, transmittal of the SAR to the Office of Assessments, 

Accountability, Special Enforcement and Investigations (“OAASEI”) typically for a final 

decision, but there is no limiting principle that determines which of these considered violations 

will be specially assessed, or how that conclusion is reached. Id. at 102-03. As a result, MSHA 

may issue citations with congruent fact patterns to mines of the same size and violation history, 

but then propose assessments in which the proposed penalties for one operator or citation are 

many multiples higher than the proposed penalty for the other operator or citation. E.g., The 

23 MSHA has asserted that its authority to specially assess a penalty is plenary and 

unreviewable. 

42 FMSHRC Page 196
American Coal Co., 40 FMSHRC 1011, 1043-44 (Aug. 2018) (“Amcoal II”) (sep. op. of Acting 

Chairman Althen and Comm’r Young). 

 There is no structural requirement that MSHA ever account for the basis for its decision 

to specially assess a penalty. The Secretary provides a special assessment narrative that briefly 

explains the factual allegations in support of the specially assessed penalty. However, this 

document does not explain why MSHA singled out this particular citation for special 

assessment.24

Further, the Secretary often claims that records related to the special assessment are 

privileged and thus not available for the respondent or the Judge. See, e.g., Big Ridge, Inc., 34 

FMSHRC 2999 (Nov. 2012) (ALJ). Of course, MSHA has the right to invoke evidentiary 

privileges. However, this secrecy related to special assessments creates impediments to 

responding to MSHA’s case and may adversely affect the Judge’s ability to evaluate the case 

properly. 

(c) Commission Guidance to Judges on Special Assessments 

Thus, the American Coal court’s characterization of the proposed special assessment as a 

“litigation proposal” is entirely apt. Like all litigating positions, favorable consideration of the 

agency’s proposal for a high penalty is subject to the Secretary’s presentation of proof of facts 

warranting a high penalty. The mere fact the Secretary has proposed a high penalty is irrelevant. 

As we have held, and as appellate courts have affirmed, the Judge must make an independent 

assessment based upon the facts and penalty criteria without using the special assessment as any 

sort of baseline or reference point. 

For all these reasons, the rationale of the Sellersburg principle regarding substantial 

divergence cannot be applied to specially proposed penalties. Doing so would perversely 

undermine the basis for Sellersburg’s duty to explain. Indeed, understanding that MSHA seeks a 

far larger penalty than the amount that the regular assessment formula would dictate, the entire 

focus of a Judge’s independent penalty inquiry must be on the factual findings as they relate to 

the penalty criteria, rather than on the amount sought by MSHA.

We have recognized the distinction between regular and special assessments, and today 

we emphasize it. Two principles apply uniquely to special assessments. 

First, the Commission has held that MSHA “bear[s] the ‘burden’ before the Commission 

of providing evidence sufficient in the Judge’s discretionary opinion to support the proposed 

assessment under the penalty criteria. When a violation is specially assessed, that obligation may 

24 MSHA does maintain such records—MSHA Form 7000-32—but it refuses to provide 

those records to respondents. Unfortunately, the narrative MSHA does provide may contain only 

cursory explanations of the basis for a special assessment. See AmCoal II, 40 FMSHRC at 1027 

(Aug. 2018) (“[t]ypically, the narrative findings for special assessments are brief and 

conclusory”). In this case, the narrative was more robust than in other cases thereby illustrating 

one of the difficulties of an arbitrary system in which the degree of information may vary widely 

depending upon the individual judgment of the person preparing the material. 

42 FMSHRC Page 197
be considerable.” AmCoal I, 38 FMSHRC at 1993. In American Coal, 933 F.3d at 727, the court 

stated that MSHA did not bear any “burden” with respect to a penalty and backhanded MSHA’s 

penalty assessment as if it were unimportant—an impotent litigating position. It is necessary to 

understand, therefore, that when the Commission used the term “burden” in AmCoal I, 38 

FMSHRC at 1993, it did not do so in terms of a preponderance of proof standard of review. 

Instead, the Commission meant that, in seeking to sustain the litigating position regarding a 

special assessment—that is, an especially large penalty—the Secretary must present evidence to 

sustain, in the Judge’s discretion, the need for a large penalty. This requirement recognizes that 

MSHA is seeking an extraordinary penalty and must justify its litigation proposal with evidence 

on each of the penalty factors. 

Second, MSHA’s opaque process for deciding to assess specially and MSHA’s 

consideration of only two penalty factors in the assignment of penalty points is not a suitable 

basis for a penalty decision by the Commission. Therefore, when MSHA proposes a special 

assessment, the Judge must base a decision only upon a complete review of the evidence 

pertaining to each of the penalty factors, a weighing of those factors in the context of the facts, 

and a final resolution based only upon such careful and fully explained review. 

No significance attaches to MSHA’s penalty which is specially proposed for litigation 

purposes. The Judge must assess the penalty de novo based only upon the Judge’s findings of 

fact related to each penalty criterion.25 Of course, it is entirely appropriate for a Judge to fully 

consider the agency’s proposal to treat a given violation as especially egregious for enforcement 

purposes. The agency may argue that a violation is exceptional and deserves an enhanced penalty 

by explaining its decision before the Judge and supporting the explanation with evidence. 

Because the Mine Act provides the Commission and its Judges with the ultimate authority to 

assess penalties, a Commission Judge may agree with the agency’s proposed special assessment, 

or may assess a greater or lesser amount that is appropriate in his or her assessment of the 

statutory factors. 

 MSHA’s regulations in section 100.3 are a useful tool in maximizing judicial efficiency 

and ensuring that regular assessments are consistent, fair, and equitable. For that reason, the 

Commission requires Judges to explain significant deviations from proposed regular 

assessments. 

When MSHA proposes a special assessment, however, there must be a full explication of 

the allegations related to each penalty factor. The Judge’s penalty assessment must be 

commensurate only with the actual factual findings after hearing. Should the Judge elect to 

explain a difference from MSHA’s proposed assessment, that is clearly an option. This 

safeguard against arbitrary sanctions is entirely consistent with Sellersburg and with the 

Commission’s historical exercise of its independent statutory authority. 

 

25 In AmCoal II, 40 FMSHRC at 1035-38, then Acting Chairman Althen and 

Commissioner Young addressed the almost inevitable tug of an MSHA penalty proposal as an 

anchor to the Judge’s decision. Judges must avoid the unconscious effect of the special 

assessment and act only based on the penalty criteria. 

42 FMSHRC Page 198
D. The Concerns in the Dissenting Opinions are Misplaced. 

 Finally, we must review, albeit briefly, our colleagues dissenting views regarding the 

directives established in this opinion. Our colleagues respond to this straightforward opinion that 

essentially only reaffirms the right and duty of the Commission to set penalties. Although they 

write separately, they say essentially the same thing and are both misplaced. 

Contrary to the declaration of our colleagues, our instruction to Judges is firmly grounded 

on our majority decision in AmCoal I and is precedential. It goes without saying that the manner 

in which the Commission instructs Judges to assess penalties under section 110(i) of the Mine 

Act is not a matter for dispute between parties to a Commission proceeding. Our charge, as a 

Commission, is to set forth policies, interpretations, and rules, including those governing penalty 

assessments under section 110(i). 

As a corollary to this principle, our colleagues are incorrect in suggesting that we could 

only offer this opinion if the issue of divergence between a Commission assessment and a 

MSHA proposal was raised in a Petition for Discretionary Review. Slip op. at 23-24 & n.1, 36-

37. The principle discussed here involves only a legal issue, and more specifically, a legal issue 

raised by the Commission to assure fairness and transparency in its decisions. We review legal 

issues de novo, and it is obviously necessary for us to apply the correct legal standard in deciding 

cases on review.26 

The correct legal standard, as it applies to special assessments, was articulated by the 

Commission’s majority decision in AmCoal I. Our decision in that case is a natural extension of 

the principles of Sellersburg. In fact, the Commission’s institution of the Sellersburg requirement 

to explain substantial divergences between the Judge’s penalty and an MSHA regularly proposed 

penalty did not arise out of a petition for discretionary review raising the issue of explanation of 

differences. The Commission, there, affirmed its right and duty to assess final penalties. In doing 

so, it also imposed a duty to explain a substantial divergence in the Judge’s assessment from a 

proposal arrived at through the formally instituted, transparent, regular penalty point system 

adopted by MSHA. As we have explained, Sellersburg has functioned as a counter to potentially 

arbitrary outcomes, as was AmCoal I. Here, we refine that instruction consistently with its 

original and ongoing purpose. 

The indecision reflected by a divided Commission created in AmCoal, 40 FMSHRC 

1011, is what the circuit court perceived as incoherence driven by legal principles in tension. As 

our opinion reflects, however, there is no actual tension. Rather, both the Sellersburg and 

AmCoal I precedents are intended to ensure consistent, fair, and principled penalty assessments. 

26 Beyond the practical necessity of applying the correct standard, Solar Sources did in 

fact specifically object to the Judge’s conclusions as to the penalty and his failure to “adequately 

explain the basis for the $68,300 penalty . . . as the Commission directed in American Coal, 38 

FMSHRC 1987 (August 30, 2016), on how penalties, including special assessments, are to be 

calculated.” PDR at 2 (emphasis added). 

42 FMSHRC Page 199
It was incumbent on the Commission to correct the court’s misapprehension of our precedents 

and the operation of the Secretary’s special assessment program. That, we have done.27 

Here, we reaffirm the core principle that Commission Judges have the authority and duty 

to set penalties and that MSHA’s proposed assessments constitute litigating positions. Moreover, 

in this opinion, the Commission clarifies that Judges are not required to explain their divergence 

from a special assessment.28 To be clear, there is, however, absolutely no prohibition on a Judge 

to explain a divergence should the Judge be so inclined. Our colleagues do not dispute that 

MSHA’s special assessments are opaque.29 This obscurity gives MSHA the ability to enhance 

penalties at its sole discretion without ever committing to a rationale upon which that 

determination rests. Further, MSHA has not submitted any substantive aspect of the special 

assessment procedures to public notice and comment and it changed its special assessment 

procedures from a clearly-expressed, publicly-vetted process.30 The Commission has never 

reckoned with this departure from principles of administrative law. 

 

Thus, requiring our Judges to explain divergences from opaque MSHA penalty 

assessments serves neither the goal of transparency and public trust nor the principles of fair and 

objective assessments.31 On the contrary, such a requirement would interject a foundational bias 

toward the enhanced penalty into the consciousness of the trier of fact, whether or not the reason 

for the enhancement has been validated by the trial process. 

We thus agree that the fact that the penalty is specially assessed—standing alone—is 

completely irrelevant. Rather, the Judge must consider the proffered basis for the enhanced 

penalty and the evidence supporting it. The Commission then reviews the Judge’s decision to 

determine whether substantial evidence supports findings of fact that underlie the penalty 

assessment and, in turn, whether the assessment is arbitrary and capricious when based upon 

27 The Commission’s instruction certainly does not create any danger or even 

significant changes to the fair assessment of penalties that our colleagues seem to fear or 

infer in their opinions. 

28 The views of the dissenters are internally irreconcilable. They recognize, even 

emphasize, the independence of our Judges’ penalty decisions but then find we must require 

Judges to take into account or at least explain variances from opaque special assessments. Slip 

op. at 24-26, 37-39. Such a belief is at odds with the status of a Secretary’s special penalty 

proposal as a uniquely unexplained litigating position. 

29 The dissenters do not identify any benefit for requiring an explanation for a 

variance from an assessment that was arbitrary from the outset. The decision to assess 

specially is discretionary and not governed by any mandated rules. In turn, MSHA makes 

the assessment through a system in which facts of the case may have no bearing upon the 

increase in the penalty. 

30 See slip op. at 14-15 and n.21, supra. 

31 Our dissenting colleagues note the motivation for Sellersburg—without any reference 

to language in Sellersburg or any other case to support that speculation. Slip op. at 25-26, 37-39. 

42 FMSHRC Page 200
facts supported by substantial evidence. The views of our colleagues notwithstanding, this is not 

a “new” or “additional” burden of proof on the Secretary (slip op. at 26-27, 37-39); it is the same 

burden he bears on every other issue under the Mine Act and the Administrative Procedure Act,

5 U.S.C. § 500 et seq.32

Our decision today does not make any draconian changes, or indeed changes at all, in the 

assessment process. We only reinforce the need for all penalties to be independently assessed, 

consistent with the Mine Act and our precedents. In order for us to ensure that is done in this 

case, and in future cases, we remind our Judges that they are free from unintended and irrational 

restraint, or anchoring, in their discretionary decision-making. Where the Secretary properly 

explains the basis for a special assessment, the Judge’s independent assessment will be informed 

by the facts of the case, and not a perceived need to justify a variance from an opaque special 

assessment. 

 

32 One dissenting colleague goes so far as to presume that by retaining the Sellersburg

explanation requirement for regular penalty assessments, we find that regular penalty 

assessments are “inherently reasonable.” Slip op. at 38. She misses the point entirely. We do not 

find any penalty to be “inherently reasonable;” we credit regular assessments as the product of a 

transparent process that provides a basis for the Secretary’s litigating position. There is a 

bulwark in that process against arbitrary results, unlike with special assessments. This is the 

entirety of the problem: The rationale for the application of Sellersburg does not apply to special 

assessments, because the Secretary has refused to provide regularity and transparency to that 

process. 

We trust that the equivalency our colleague draws between regular and special 

assessments does not mean that she actually finds special assessments to be inherently 

reasonable, despite the Secretary’s obdurate failure to lift the veil and commit to a thesis for such 

assessments as a matter of policy. Such a position would be contrary to the principle we 

reinforce today: the right and duty of Judges to make independent assessments in every case, 

without being tethered to a policy decision whose foundations may or may not remain viable 

post-hearing. 

42 FMSHRC Page 201
III. 

Conclusion 

In light of the guidance set forth in this Decision, and returning to the citation at issue, 

remand is essential in this case in the interest of justice. Accordingly, we direct the Judge to 

exercise his responsibility to conduct an independent and reasoned analysis, using the record 

evidence. That analysis is to include findings of fact or meaningful explanation on each of the 

statutory penalty criteria, and particularly in this case, to make 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, consistent with the requirements of Commission Procedural Rule 

30(a) and section 110(i) of the Mine Act. The Judge should then reassess a civil penalty in 

accordance with the established Commission precedent of AmCoal I. Accordingly, we vacate the 

Judge’s penalty assessment and remand the case to the Judge so that he may enter a penalty 

assessment consistent with this opinion.33

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ Michael G. Young 

 Michael G. Young, Commissioner 

/s/ William I. Althen 

 William I. Althen, Commissioner 

 

33 Commissioner Traynor concurs with the decision to remand this case to the Judge 

based on Parts A and B only. 

42 FMSHRC Page 202
Commissioner Traynor, concurring with the majority on Parts A & B and dissenting from the 

majority on Parts C & D: 

 I agree with the majority’s conclusions that the Judge erred in failing to fully consider the 

statutory penalty criteria and with their finding that the Judge need not reconcile the differences 

between his penalty analysis and the Secretary’s narrative findings. In fact, had the majority’s 

analysis ended here—where it should have—I would have likely signed their opinion. Yet, for 

the reasons described herein, I regretfully cannot. 

The majority purports to decide issues that were not raised before the Judge in the 

proceeding below, not addressed in the operator’s petition for discretionary review, and not 

briefed to us. Section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. § 823 (d)(2)(A)(iii), requires a 

party to “separately number[] and plainly and concisely state[]” each issue for which review is 

sought and further states that “[i]f granted, review shall be limited to the questions raised by the 

petition.” Commission Procedural Rule 70(g), 29 C.F.R. § 2700.70(g), echoes this restriction. 

Here, the question of whether a Judge needs to adhere to our decision in Sellersburg Stone 

Company, 5 FMSHRC 287 (Mar. 1983), and explain any substantial deviation between the 

Secretary’s special assessment and the Judge’s penalty assessment was not raised in Solar 

Sources’ petition. Nor was there an issue raised of whether a Judge must meet a newly 

announced and “considerable” burden to justify penalty amounts assessed in cases involving 

special assessment proposals. Accordingly, the parties did not have notice or the opportunity to 

be heard before the Commission on the issues implicated in the majority’s attempt to upend 

long-settled legal principles.1

 These issues, which have nothing to do with resolution of the 

issues raised in Solar Sources’ petition, are not properly before the Commission. 

Tacitly acknowledging their opinion exceeds the scope of the PDR, the majority claims 

that it has the right to “review legal issues de novo.” Slip op. at 18. The Mine Act provides a 

mechanism for the Commission to review legal issues or Commission policy sua sponte, but the 

 

1

 The majority claims that Solar Sources specifically addressed these issues in its PDR 

when it alleged that the Judge did not “adequately explain, the basis for the $68,300 penalty . . . 

as the Commission directed in American Coal, 38 FMSHRC 1987 (Aug. 30, 2016)” (“AmCoal 

I”). PDR at 2; slip op. at 19 n.26. They are incorrect. In AmCoal I, the Commission found error 

in a Judge’s de novo penalty assessments and accordingly remanded the citations—originally 

subjected to the Secretary’s special assessment procedures—ordering the Judge to reassess the 

penalties consistent with the opinion. 38 FMSHRC at 1998. Notably, American repeatedly cites 

Sellersburg favorably, for the exact legal proposition that the majority now aims to overturn,

stating explicitly that the Judge is “require[d] [to] explain a substantial divergence from the 

[specially assessed] penalty proposed by the Secretary.” Id. at 1996. In fact, the American

decision noted that Sellersburg requirements “do[] not constrain the independence of the Judge 

to make a final penalty assessment . . . .” Id. Accordingly, the majority’s instructions here are 

certainly not “firmly grounded on our majority decision in AmCoal I and [] precedential.” Slip 

op. at 18. Nor can Solar Sources’ PDR be construed as the majority suggests. 

42 FMSHRC Page 203
majority did not utilize it here. 30 U.S.C. § 823(d)(2)(B).2

 Because the majority has addressed 

legal issues sua sponte, without a prior grant of review, they act ultra vires of the Mine Act. 30 

U.S.C. § 823(d)(2)(B). (“If a party’s petition for discretionary review has been granted, the 

Commission shall not raise or consider additional issues in such review proceedings except in 

compliance with the requirements of this paragraph.”) (emphasis added). 

Though much of what the majority opinion purports to decide exceeds our statutory 

authority and is therefore without precedential value, I write for the benefit of our Judges and the 

public about two particular aspects of the majority’s approach to penalty assessment that are 

inconsistent with over 35 years of precedent and practice. First, the decision in American Coal 

Co. v. FMSHRC, 933 F.3d 723 (D.C. Cir. 2019), is the most recent in a long line of precedents 

prohibiting our Judges from exercising their penalty assessment authority differently depending 

on whether the Secretary proposes penalties under his regular or special assessment regulations. 

Second, equally settled law prohibits our Judges from subordinating their assessment role to the 

point counting system used to compute the Secretary’s proposals or any inflexible standard of 

proof irrelevant and ill-suited to their independent exercise of wide discretion. 

A. Judges Should Continue to Explain Any Substantial Divergence Between a 

Proposed Penalty and Final Assessment Without Regard for How the Secretary 

Proposed the Penalty. 

In American Coal, the D.C. Circuit uncritically observed that our precedent “seems to 

point in two directions” by: 1) requiring that our Judges make an assessment independent from 

the Secretary’s penalty proposal while at the same time 2) explaining any substantial divergence 

from the proposal. 933 F.3d at 728. The majority misreads the opinion, projecting on the court a 

“troubling” perception of “an inconsistency in Commission law” that “demands prompt 

clarification.” Slip op. at 10. Yet nothing in the court’s opinion describes the “two directions” as 

troubling, inconsistent, incompatible, unworkable or in need of change. Ultimately, the court 

endorsed our “two directions” as equally necessary by affirming in that case “all that matters 

here is that the ALJ satisfied both of those standards, provided an independent and reasoned 

basis for the penalty calculation, and supported all relevant factual determinations with 

substantial evidence.” 933 F.3d at 728 (emphasis added). Even in a case involving a proposal for 

a penalty that was specially assessed, the court held it matters that our Judges explain any 

substantial divergence from the government’s proposal. 

In an opinion it frames as a response to the D.C. Circuit, the majority in this unrelated 

case purports to release our Judges from the responsibility of satisfying one of these two 

standards—the substantial divergence explanation—in those cases in which the Secretary 

proposes a special rather than regular assessment. This would create the first ever exception to 

what has for several decades been a universal requirement in all civil penalty cases that our 

2

 “At any time within 30 days after the issuance of a decision of an administrative law 

judge, the Commission may in its discretion . . . order the case before it for review but only upon 

the ground that the decision may be contrary to law or Commission policy, or that a novel 

question of policy has been presented. The Commission shall state in such order the specific 

issue of law, Commission policy, or novel question of policy involved . . . .” 30 U.S.C. 

§ 823(d)(2)(B).

42 FMSHRC Page 204
Judges explain any substantial divergence between the Secretary’s proposal and the final 

assessment. See Sellersburg, 5 FMSHRC at 287. The majority’s rationale for this carve-out is 

couched in a lengthy explanation of how the Secretary’s discretionary decision to propose a 

specially assessed penalty is different than the computation of points under the regular 

assessment proposal process. In short, the majority claims the original rationale for the 

substantial divergence explanation in our Sellersburg decision—avoiding the appearance that 

penalties are arbitrarily raised or lowered after contest—is not present unless the Secretary’s 

proposed penalty is rooted in the regular assessment process point calculations. This conclusion 

flows from the majority’s belief that only explanations of a divergence from a penalty computed 

by the regular point system can preserve “consistency” and “transparency” in our penalty 

proceedings. Slip op. at 13-15. 

In Sellersburg, we were not, as the majority contends, motivated to require an 

explanation of substantial divergence by a desire to foster consistent penalty assessments. Nor 

did we seek to foster “consistency” in penalty assessments or “equal penalties across many 

operators . . . .” Id. at 13. Consistency is not referenced anywhere in the Sellersburg Stone

opinion or in the Mine Act. And it is not a goal our Judges are required by any other source of 

law to pursue.3 See Butz v. Glover Livestock Commission Co., 411 U.S. 182, 186 (1973) 

(rejecting argument that agency must achieve “uniformity of sanctions for similar violations” 

where no such requirement is found in the enabling statute). 

Transparency motivated our Sellersburg decision. There, we introduced the concept of a 

substantial divergence explanation with the observation that in our early penalty assessment 

cases “the Secretary’s proposed penalties are usually of record in a Commission proceeding.” 

5 FMSHRC at 293. We wanted to ensure the Secretary’s recommended penalties would remain a 

matter of record, and a Judge’s assessment and explanation of any divergence readily apparent in 

the text of our decisions. 

Our Sellersburg rule requiring explanation of divergence enables Congress, agency 

officials and the public to examine and evaluate the role of both parties to our bifurcated model. 

We have for decades required written explanations of substantial divergence in cases involving 

both regular and special assessment proposals, in part, because Congress recognized “that the 

purpose of civil penalties, convincing operators to comply with the Act’s requirements, is best 

served when the process by which these penalties are assessed and collected is carried out in 

public, where miners and their representatives, as well as the Congress and other interested 

parties, can fully observe the process.” S. Rep. No. 95-181, at 45 (1977) reprinted in Senate 

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

Health Act of 1977, at 633 (1978). Any reader of a civil penalty decision can easily ascertain the 

penalty amount proposed, and review a Judge’s explanation of why the Commission arrives at a 

final assessment greater or less than the proposed amount. Just because such explanation may not 

be reducible to a mathematical expression does not mean it is without value. The transparency 

benefits of our rule are equally true in special assessment cases and it is difficult to understand 

3

 The appropriate process for assessing penalties is set forth more fully in Section B, 

below, followed by a discussion of the proper standards by which the Commission reviews its 

Judges’ assessments.

42 FMSHRC Page 205
how exempting a subset of our cases from the rule providing these benefits could be justified by 

transparency concerns. 

The majority states they will exempt special assessment cases from our Sellersburg rule 

requiring substantial divergence explanations because “the Commission must recognize the 

differences between regular and specially assessed MSHA penalty proposals.” Slip op. at 14. But 

when we review penalties, any focus on the Secretary’s internal process for proposing penalties 

is misplaced. Asking our Judges to distinguish between regular and special assessments to 

determine whether or not a substantial divergence explanation is needed is not consistent with 

the principle that “[w]hat internal remedial enforcement judgments the Secretary might or might 

not have made in suggesting a penalty amount are beside the point.” American Coal Co., 933 

F.3d at 727; see also Mach Mining LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. Cir. 

2016); U.S. Steel Mining Co., 6 FMSHRC 1148, 1150 (May 1984) (“[I]t is irrelevant to the 

Commission for penalty assessment purposes whether a penalty proposed by the Secretary in a 

particular case was processed under [30 C.F.R. §] 100.3 [regular assessment regulation] . . . or 

[30 C.F.R. §] 100.5 [special assessment regulation.]”). 

B. We Do Not Review a Discretionary Penalty Assessment Decision for Evidentiary 

Support, Whether the Proposal is Regularly or Specially Assessed. 

We have long held that the discretionary decision to assess a penalty amount “must 

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

purpose of the Act.” Cantera Green, 22 FMSHRC 616, 620 (May 2000). And findings on each 

of the penalty criteria must be supported by substantial evidence. But never before the majority’s 

decision in this case have we indicated that we will scrutinize the Judge’s discretionary 

assessment decision itself for “substantial,” “considerable,” or any other type of evidentiary 

support. Never before the majority’s decision have we attempted to apply any burden of proof to 

the assessment decision itself (in addition to the section 110(i) findings), let alone a burden that 

increases when the Secretary proposes a special rather than regularly assessed penalty. 

The majority suggests we apply a seemingly demanding version of substantial evidence 

review to penalty assessment decisions we have long reviewed only for abuse of discretion, 

explaining that in the case of a specially assessed penalty, the Secretary bears a burden to explain 

and justify with substantial evidence that the facts of the case support the proposition that the 

particular violation “is exceptional and deserves an enhanced penalty.” Slip op. at 17-18; see also

id. at 17 (“[I]n seeking to sustain the litigating position regarding a special assessment—that is, 

an especially large penalty—the Secretary must present evidence to sustain, in the Judge’s 

discretion, the need for a large penalty.”). 

In The American Coal Co., 38 FMSHRC 1987, 1993 (Aug. 2016) (“AmCoal I”), we 

opined that the Secretary “bear[s] the burden before the Commission of providing evidence 

sufficient in the Judge’s discretionary opinion to support the proposed assessment under the 

penalty criteria. When a violation is specially assessed, that obligation may be considerable.” In 

the case at hand, the majority seizes on the conditional phrase, “may be considerable,” as support 

for a new proposition—the Commission will scrutinize a Judge’s penalty assessment for 

heightened evidentiary support in cases in which the penalty that was originally proposed was 

42 FMSHRC Page 206
specially assessed. In the majority’s new standard, the word “may” is now absent. And gone with 

that word “may” is the Judge’s wide discretion to independently assess a penalty amount after 

considering the statute’s section 110(i) factors and deterrent purpose. 

The majority purports to make a Judge’s penalty assessment of contested penalties 

reviewable for substantial, even “considerable” evidence. Yet nowhere in AmCoal I did we 

express anything close to an intention to so radically alter the foundational standards governing 

our review: substantial evidence for each of the findings and then abuse of discretion for the 

explanation as to how the penalty amount chosen is supported by the section 110(i) findings and 

the Act’s deterrent purpose. Never before have we applied a substantial evidence, considerable 

evidence, or any other type of evidentiary review to the Judge’s discretionary choice of penalty 

amount. Furthermore, never before has the Commission suggested that the Judge alter his or her 

approach to a penalty assessment depending on how the Secretary’s originally proposed penalty 

was derived. 

When the D.C. Circuit reviewed our decision in The American Coal Co., 40 FMSHRC 

1011 (Aug. 2018) (“AmCoal II”), it explicitly rejected the argument that we must “require the 

Secretary to prove the grounds for his proposed penalty by a preponderance of the evidence” 

explaining that approach “fundamentally misunderstands the ALJ’s task.” American Coal, 933 

F.3d at 726. Similarly, no evidentiary burden—whether substantial, a preponderance, or 

considerable—can be required as justification for the decision to assess any particular penalty 

amount. Such a burden would be inconsistent with the wide discretion we expect our Judges to 

exercise when determining a suitable penalty amount at the conclusion of the independent 

penalty assessment process described in our precedents. 

1. The Judge Makes Evidentiary Findings and then Assesses a Penalty Supported 

by those Findings.

That process begins with a Judge making a finding of fact on each of the section 110(i) 

penalty criteria by examining and weighing evidence material to each criterion. Each finding 

must be backed by substantial evidence. At that point, the Judge must consider the section 110(i) 

findings to assess a penalty amount. The Judge has wide discretion to assess any penalty amount 

within the statutory minimum and maximum. A Judge is “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).4

 “Judges have discretion 

to assign different weight to the various factors, according to the circumstances of the case.” Id. 

at 1979 (quoting Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001)). And a single finding 

on only one or two of the six criteria could justify assessment of the statutory maximum even 

where findings entered on the other criteria would tend to mitigate a penalty, if rationally 

4

 Despite the protests of the majority, a Judge has the discretion to assess a high penalty, 

for reasons independent of or similar to the Secretary’s original rationale. Accordingly, the 

Secretary’s failure to substantiate a particular allegation in his penalty narrative does not abridge 

the Judge’s discretion to assess a penalty. Similarly, the Judge’s discretion cannot be diminished 

by the contents of or omissions in the Secretary’s Program Policy Manual, specific calculations 

in MSHA Form 7000-32, or by the Secretary’s penalty proposal for a different violation at a 

different mine. 

42 FMSHRC Page 207
explained by reference to the section 110(i) findings or deterrence. See Knight Hawk Coal, LLC, 

38 FMSHRC 2361, 2373 (Sept. 2016). For instance, the Commission has held that Judges have 

not abused their discretion for more heavily weighing gravity and negligence than the other 

criteria. See, e.g., Signal Peak Energy, LLC, 37 FMSHRC 470, 485 (Mar. 2015).

5

 

We have consistently held that the Judge must provide an “adequate explanation of how 

these findings contributed to his penalty assessments.” Cantera Green, 22 FMSHRC at 622. 

“While the findings and explanations relating to a penalty assessment do not have to be 

exhaustive, they must at least provide the Commission with a basis for determining whether the 

Judge complied with the requirement to consider and make findings concerning the section 

110(i) penalty criteria.” Id. at 621. Finally, where the amount that has been assessed is 

substantially more or less than the Secretary’s proposed penalty, the Judge must also explain the 

divergence. Sellersburg, 5 FMSHRC at 293. 

2. The Commission Reviews the Judge’s Findings for Substantial Evidence and 

then Reviews the Judge’s Assessment for an Abuse of Discretion.

Our review of a challenged penalty assessment is a two-step process. First, we review 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, we review 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. 

We do not evaluate whether the facts underlying the findings are of the type or quantity 

sufficient to justify some burden that varies according to the penalty amount. Where any 

argument for subjecting discretionary penalty assessment decisions to an evidentiary standard 

“goes wrong is in trying to extend that burden of proof to the Secretary’s suggested penalty 

amount.” American Coal, 933 F.3d at 727. The assessment decision itself, unlike the section 

110(i) findings, is not a factual finding and therefore not in need of any evidentiary support, let 

alone “considerable” evidence, whether it is proposed as regular or special. Sellersburg, 5 

FMSHRC at 294 (“[D]etermination of the penalty that should be assessed for a particular 

violation is an exercise of discretion by the trier of fact.”); cf. Beall Const. Co. v. OSHRC, 507 

F.2d 1041, 1046 (8th Cir. 1974) (“The assessment of penalties by the administrative agency is 

not a factual finding but the exercise of a discretionary grant of power. Our review of such 

penalties is whether there has been an abuse of discretion.” (internal citation omitted)). 

Relatedly, the Secretary is not required to prove facts justifying his decision to propose a special 

rather than regular assessment, or facts justifying any divergence between the special assessment 

5

 The majority’s call for the Commission to review penalty assessments that approach the 

statutory maximum to determine if substantial evidence supports a finding that the underlying 

violation was “exceptional” cannot be reconciled with such discretion. 

42 FMSHRC Page 208
proposal and what the proposal would have been under the formula used to propose regular 

assessments.6

Indeed, the point system the Secretary uses to make regular penalty proposals should not 

in any way operate to limit or dictate the final amount assessed. And Judges deciding penalty 

amounts should decline to create in their minds an imitation of the point system to which they 

might subordinate their obligation to assess penalties that will deter violations of the Act.7 The 

Mine Act sets the minimum and maximum penalties that can be assessed, and no “amount” or 

“type” of evidence is necessary to justify the assessment of a penalty anywhere along the 

spectrum ranging from this statutory minimum to maximum amount, as long as supported 

findings and deterrence are considered. Where along that spectrum a final assessment is located 

does not need to bear any relationship whatsoever to the point system’s “regimented formula 

[that] mathematically converts findings regarding the six statutory factors into predetermined 

dollar values.” American Coal, 933 F.3d at 725. 

Penalty assessments are reviewed only for abuse of discretion. Requiring our Judges to 

justify their discretionary decision to assess any particular penalty amount by reference to some 

standard of proof would not be consistent with abuse of discretion review. Such a requirement 

would encroach on their discretion. Indeed, the D.C. Circuit has expressly held that no more than 

a limited set of things must be addressed in a Judge’s explanation of his or her exercise of 

discretion, and that these things are sufficient, without more, to adequately explain an assessment 

decision: 

The ALJ rationally explained his penalty assessments with 

reference to each of the six statutory factors, and he expressly 

disclaimed any use of the Secretary’s proposed specially assessed 

penalties as a baseline or starting point. Rather than discounting 

the proposed penalties, he arrived at an independent determination 

of a penalty amount that would respond to the seriousness of the 

Company’s violations and would deter future violations. The ALJ 

also contrasted his judgment with that of the Secretary to the extent 

that there were any substantial deviations in his penalty amounts 

that would require an explanation. The ALJ need drill no deeper. 

Id. at 728 (internal citations and punctuation omitted and emphasis added). 

6

 The majority here cannot square dicta in its opinion, including over five pages 

discussing the difference between a regular and specially assessed penalty proposal, with our 

precedential holding that the Secretary’s internal decision to make a regular or special 

assessment is “irrelevant to the Commission for penalty assessment purposes.” U.S. Steel Mining 

Co., 6 FMSHRC 1148, 1150 (May 1984). 

7

 In the same way, a proposed special assessment should not be an “anchor” or “starting 

point” for an assessment.

42 FMSHRC Page 209
The D.C. Circuit in American Coal was not troubled by the “two directions” that have 

guided our penalty assessment process since our decision in Sellersburg. It affirmed them both. 

Id.

Accordingly, I strongly dissent from Parts C and D of the majority opinion, in which the 

majority asserts in dicta that Judges must exercise their discretionary assessment authority 

differently depending on whether the proposed penalty is regular or specially assessed. I also 

disagree with the majority’s characterization, also dicta, of our Judges’ highly discretionary 

penalty assessment process and the standards we apply to review the same. However, I agree 

with the majority in result only as to Parts A and B of their opinion, that the case should be 

remanded for specific findings regarding the operator’s history of violations and demonstrated 

good faith in achieving rapid compliance and for the Judge to assess a civil penalty. 

/s/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 210
Commissioner Jordan, dissenting: 

I. The Judge’s Penalty Assessment Should be Affirmed 

The Mine Safety and Health Administration (“MSHA”) charged Solar Sources with 

violating a safety standard that requires berms at certain locations to prevent vehicles from 

overturning. The Judge found a violation and assessed a penalty of $68,300, the amount of the 

Secretary’s specially assessed penalty proposal. On appeal, the operator challenges only this 

penalty. The majority remands the case, requiring the Judge to explain how the operator’s history 

of violations and its good faith abatement of the violation affected his penalty determination. For 

the reasons stated below, I believe that remand is unnecessary, and would affirm the assessment. 

The citation was issued after an accident occurred in which a dump truck broke through a 

berm and went over an embankment to a slurry pit approximately 47 feet below.1 The truck 

landed upside down. The driver jumped from the truck before it went over the embankment and 

was seriously injured. 

 The Judge found the violation was a result of the operator’s high negligence and 

unwarrantable failure2 and significant and substantial (“S&S”),3 rulings the operator did not 

appeal. The Judge noted the Secretary’s contention that the condition existed for a period of time 

and that the operator had knowledge that berms were a constant problem requiring attention. 40 

FMSHRC 462, 493 (Mar. 2018) (ALJ). In short, this was an extremely serious violation. 

 

Administrative Law Judges are accorded broad discretion in assessing civil penalties 

under the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). A Judge’s 

penalty assessment is reviewed under an abuse of discretion standard. U.S. Steel Corp., 6 

FMSHRC 1423, 1432 (June 1984).4 As there is ample evidence supporting this assessment, I 

find that the Judge did not abuse his discretion. 

Section 110(i) of the Mine Act requires that in assessing civil monetary penalties, the 

Commission consider six criteria: [1] the operator’s history of previous violations, [2] the 

1

 The citation charged a violation of 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.” 

2

 Unwarrantable failure means aggravated conduct, constituting more than ordinary 

negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). 

3

 The term “significant and substantial” derives from section 104(d)(1) of the Mine Act, 

30 U.S.C. § 814(d)(1), which distinguishes as more serious any violation that “could 

significantly and substantially contributed to the cause and effect of a . . . mine safety or health 

hazard.” 

4

 An abuse of discretion may be found where there is no evidence to support the Judge’s 

decision or if the decision is based on an improper understanding of the law. The American Coal 

Co., 38 FMSHRC 1972, 1984 (Aug. 2016). 

42 FMSHRC Page 211
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 person charged in attempting 

to achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i). 

 The Judge’s decision focused on two of these factors, gravity and negligence. In 

explaining his penalty assessment, the Judge stated: 

Having found that the violation identified in Citation No. 

9102704 was established and that the Inspector’s evaluation of the 

gravity and negligence and his finding of unwarrantable failure and 

significant and substantial were demonstrated and that no 

cognizable mitigation was advanced, the Court therefore finds, that 

upon application of the statutory criteria, the penalty proposed by 

the Secretary should be applied. 

40 FMSHRC at 495. He stated that the other section 110(i) penalty factors “were duly 

considered,” and he mentioned each of them in a footnote. Id. at 495 n.15. “To be clear,” he 

noted, “the Court’s penalty determination has been determined by evaluation of the six statutory 

criteria.” Id. at 495. 

Turning to the gravity factor, this violation created an extraordinarily dangerous—and 

potentially fatal—hazard. In his S&S discussion, the Judge concluded that the lack of berms 

contributed to the danger of a vehicle veering off the elevated roadway and rolling, or falling, 

down the incline. Id. at 494. He emphasized that “[t]here is no question that the haul truck went 

through the berm and ended up going over the embankment, landing at the bottom of the slurry 

pit and that the haul truck driver, though receiving significant injuries from the accident, was 

fortunate to escape from his vehicle.” Id. at 492. 

 

 Regarding negligence, the Judge stated (in his discussion of the merits of the 

unwarrantable failure allegation): 

[T]he Secretary asserts that the duration of the inadequate berm 

was: “long enough for the hazard to have been identified and 

recorded in the onshift records;” of such extensiveness to cover the 

width of the slurry dumping area; without any efforts to address 

the hazardous berm’s muddy consistency; and presented an 

obvious and dangerous hazard about which the Respondent should 

have known of its existence. Id. at 23-24. As stated before, and on 

the same bases, and as discussed further infra, the Court agrees 

that this was an unwarrantable failure. 

Id. at 488. Thus, clearly the Judge determined that the negligence level of the operator was high. 

 

The Commission has acknowledged that a Judge need not assign equal weight to each of 

the penalty assessment criteria and that it has previously held that Judges have not abused their 

42 FMSHRC Page 212
discretion by more heavily weighing gravity and negligence than the other penalty criteria. See

Knight Hawk Coal, LLC, 38 FMSHRC 2361, 2373-74 (Sept. 2016); Signal Peak Energy, LLC, 

37 FMSHRC 470, 484-85 (Mar. 2015); Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001). 

Here, the Judge assessed a significant penalty in a case in which he found that a dangerous 

condition (that the operator admitted was a constant problem requiring attention) had existed for 

a period of time. This does not constitute an abuse of discretion. 

 

Moreover, Commission precedent makes clear that remand is not required in this case. In 

Sellersburg Stone Co., 5 FMSHRC 287 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984), for 

example, the Judge’s decision contained discussion and findings on only two of the six statutory 

penalty criteria (negligence and gravity). The decision was “devoid of specific facts and findings 

bearing on the remaining four criteria.” 5 FMSHRC at 292. In that case there was a wide 

divergence between the proposed penalties and the Judge’s assessments. 

 Nonetheless, the Commission stated that a remand for the entry of findings on the criteria 

was unnecessary and would needlessly prolong the proceedings. In the interest of judicial 

economy, it entered the required findings rather than remanding for the Judge to do so, noting 

that there was no controversy between the parties concerning the record evidence bearing on 

each of these criteria. Id. at 293-94. In fact, the Commission acknowledged that, as in the instant 

case, “[t]he uncontroverted nature of the evidence bearing on these criteria may explain why the 

Judge did not make express findings in his decision.” Id. at 294 n.9.5 

 

The Seventh Circuit affirmed this decision, explicitly holding that “the Commission’s 

entering of undisputed record information as findings was proper under the [Mine] Act.” 736 

F.2d at 1153. The court relied on language in the Mine Act stating that “[t]he Commission . . . 

may . . . modify the decision or order of the administrative law judge in conformity with the 

record.” Id. (citing 30 U.S.C. § 823(d)(2)(C)). 

 

The majority’s insistence on remand in this case is antithetical to the Seventh Circuit’s 

conclusion in Sellersburg: 

The Commission must remand a case to the ALJ only if it 

“determines that further evidence is necessary on an issue of fact.” 

Given the Commission’s conclusion that uncontroverted evidence 

 

5

 Regarding the operator’s history of violations, in Sellersburg, the Secretary had entered 

an exhibit into evidence indicating the number of violations charged and penalties for violations 

paid during the relevant two-year period. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 

1983). The Commission determined that therefore the operator had at least a moderate history of 

previous violations. Id. In this case, the Secretary entered a similar exhibit into evidence, Ex. P2, to which the Judge referred when referencing the operator’s violation history. Solar Sources 

has never challenged the accuracy of this information. Although my colleagues assert that the 

Commission cannot make its own findings on this factor, slip op. at 8, I conclude that, given that 

there remains no factual dispute regarding the violation history, the parties’ disagreement as to 

the significance of the uncontroverted evidence is not a reason to remand the case. 

42 FMSHRC Page 213
did not warrant further factual findings, such a remand was not 

required in this case. 

Id. (citation and footnote omitted). 

Similarly, in Knight Hawk, a unanimous Commission affirmed a $70,000 penalty 

assessed by the Judge. The Judge below had discussed her findings related to five of the penalty 

criteria but did not make express findings about history of violations (although she was aware of 

the history). The Commission, relying on Sellersburg, stated that findings may be entered by the 

Commission on review based on undisputed record evidence. In the interest of judicial economy, 

the Commission made the finding on history, ruling that the operator’s safety record weighed in 

favor of a penalty less than $70,000. Nonetheless, it held that the Judge’s determinations 

regarding the other criteria supported her penalty assessment, in particular because the gravity of 

the violation was S&S and undisputed. It noted that the Judge gave significant weight to the 

operator’s negligence, the high degree of danger and the operator’s failure to enforce the safety 

policy at issue. 38 FMSHRC at 2373-74. 

The Commission’s decision in Signal Peak also countenances against a remand here. In 

that case, the operator argued that the Judge did not provide adequate justification to account for 

the difference between the Secretary’s proposed penalties ($51,400) and the penalties which the 

Judge independently assessed ($83,750). The Commission disagreed, and concluded that, except 

to the extent one of them exceeded the statutory maximum, the Judge did not abuse his discretion 

in raising the penalty amounts. 37 FMSHRC at 484-85. 

In Signal Peak, the Judge’s discussion regarding the history of violations mirrored the 

finding at issue here. The Judge stated only: “In terms of the mine’s history of violations, the 

court has taken into account GX 21, the certified Assessed Violation and History Report.” 

34 FMSHRC 1346, 1382-83 (June 2012) (ALJ). Yet the Commission saw no need to remand the 

case for additional analysis of this factor. 

 In addition, in Spartan Mining Co., 30 FMSHRC 699 (Aug. 2008), the operator argued 

that in raising the penalties from the amounts proposed by the Secretary, the Judge erred by 

failing to discuss the required penalty criteria under section 110(i). The Commission noted that 

the operator specifically took issue only with the two factors of negligence and gravity, and thus 

affirmed the Judge’s general discussion of the other four penalty factors as adequate to support 

his penalty determinations. Id. at 723-24. Notably, the Judge’s entire discussion of history of 

violations and abatement consisted of the following: “The history of violations and Spartan’s 

abatement efforts are not a material factor in determining the appropriate penalty liability.” 

29 FMSHRC 465, 478 (June 2007) (ALJ). Again, no remand was required. 

 The majority also remands the case to the Judge to enter findings regarding whether the 

operator demonstrated good faith in attempting to achieve compliance after notification of the 

violation. Given that the sole evidence in the record regarding abatement confirms that all of the 

operator’s efforts were mandated by MSHA, I am hard-pressed to see how this evidence could be 

used to change the amount of the penalty. 

42 FMSHRC Page 214
 Moreover, the Judge discussed the operator’s abatement efforts and their possible effect 

on his penalty determination in his discussion of the merits: 

 [Solar Sources’] Counsel took the position that the remedial 

measures the mine took after the incident should factor in the 

Court’s final penalty assessment as part of its good faith. Tr. 347-

48. The Court does not agree . . . . [While Solar Sources] touted the 

efforts it made post the berm accident to make matters safer for 

dumping, Fields [Steven Fields, the operator’s safety director] 

indicated that the mine had to do it per MSHA requiring it. Tr. 

516-17. 

40 FMSHRC at 487 (emphasis in original).6

 I struggle to see how remanding the case to the Judge to enter a finding on whether the 

operator demonstrated good faith in attempting to achieve compliance will produce anything 

beyond this already sufficient analysis of the issue. 

 The majority’s reliance on Hubb Corporation, 22 FMSHRC 606 (May 2000), and 

Cantera Green, 22 FMSHRC 616 (May 2000), is misplaced. In Hubb, in which the Judge made a 

significant reduction in the penalties assessed from the penalties proposed by the Secretary, the 

Commission’s ruling was based in part on the Judge’s failure to explain the substantial deviation 

between the Secretary’s two proposed penalties and his assessment, which Sellersburg requires. 

Hubb, 22 FMSHRC at 612-13. Of course, that is not relevant here, where the Judge assessed the 

amount proposed by the Secretary. Furthermore, in Hubb, the Judge did not even allude to the 

operator’s abatement efforts, size, or the effect of the penalty on the operator’s ability to continue 

in business. For one of the penalties, the Judge failed to mention the history of violations factor 

at all. For the other, he said merely that he took the operator’s history into account. 20 FMSHRC 

615, 620, 622 (June 1998) (ALJ). Hence, there were a myriad of reasons why remand was 

necessary. 

Cantera Green is also distinguishable. In that case, the Judge assessed significantly lower 

penalties for ten violations despite concluding that the record supported a finding of high 

negligence and high gravity for these violations. He found that the operator’s negligence and 

gravity were as great or event greater than the Secretary alleged, but the amount he assessed for 

the ten violations only ranged from approximately 20 to 70% of the penalties proposed by the 

Secretary. For six of these violations, he offered no explanation for this divergence. Cantera, 

22 FMSHRC at 618-19. 

The Commission expressed concern that the lack of a clear explanation for the assessed 

penalties was particularly troublesome because the penalties deviated substantially from those 

proposed by the Secretary. Remand was also warranted in that case because the Judge erred in 

numerous respects (such as his inconsistent use of the operator’s size factor and a lack of 

6

 The citation indicates that after the plan was submitted to MSHA and approved, MSHA 

considered the violation to be abated. When asked why the operator revised its plan, Fields 

stated: “They [MSHA] made us do it.” Tr. 517. 

42 FMSHRC Page 215
reasoning as to why he assessed a penalty of $400 for nine violations and $1,500 for the 

remaining disputed violation).7 Id. at 622-26. 

I do, however, agree with the majority in rejecting the operator’s argument that the 

Secretary’s special assessment narrative in his penalty proposal is inconsistent with the Judge’s 

ultimate findings. Slip op. at 9. The narrative is no longer relevant once the case is before the 

Commission. As the D.C. Circuit recently stated in American Coal Co. v. FMSHRC, 933 F.3d 

723, 727 (D.C. Cir. 2019), “[w]hat internal remedial enforcement judgments the Secretary might 

or might not have made in suggesting a penalty amount are beside the point.” 

When it passed the Mine Act, Congress was mindful of the need for an efficient penalty 

scheme, in order to induce operator compliance. The legislative history states that “civil 

penalties, once proposed, must be assessed and collected with reasonable promptness and 

efficiency.” S. Rep. No. 95-181, at 43 (1977), reprinted in Senate Subcomm. on Labor, Comm. 

on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 631 

(1978). Remanding this case to the Judge is a needless exercise that will simply delay the 

collection of this penalty. Accordingly, I would affirm the Judge, and respectfully dissent. 

II. The Majority’s Refusal to Apply Sellersburg to Penalties Proposed by Special 

Assessment is Procedurally Improper and Substantively Incorrect 

In a departure from longstanding Commission precedent, the majority instructs our 

Judges to treat penalties proposed in accordance with the Secretary’s special assessment 

differently from the penalties the Secretary proposes via the regular assessment process. 

Reaching out to rule on an issue neither raised nor briefed by the parties, my colleagues conclude 

that Judges need no longer explain why their penalty assessments substantially deviate from a 

special assessment proposed by the Secretary. Their ruling contravenes recent court of appeals 

caselaw in this area. 

A. The Majority’s Ruling Exceeds the Scope of the Petition for Discretionary 

Review in Contravention of the Mine Act 

 The Mine Act is quite specific regarding the limitations imposed on Commission review. 

Section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. § 823(d)(2)(A)(iii), states that “[i]f granted, 

review shall be limited to the questions raised by the petition.” Commission Procedural Rule 

70(g), 29 C.F.R. § 2700.70(g), echoes this restriction. Moreover, Commissioners are not 

expected to consider or rule on issues that were not raised before the Judge below. Section 

113(d)(2)(A)(iii) instructs parties that: “Except for good cause shown, 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.” 30 U.S.C. § 823(d)(2)(A)(iii), 

 

 The Commission has consistently rejected attempts by a party to raise issues beyond the 

scope of the petition for discretionary review. See, e.g., Central Sand & Gravel Co., 23 

7

 In both Hubb and Cantera Green, the Commission did direct the Judge to enter 

qualitative findings regarding the history of violations, but nothing in these opinions indicates 

that the failure to do so would have by itself warranted a remand. 

42 FMSHRC Page 216
FMSHRC 250, 260 (Mar. 2001) (declining to depart from precedent and consider a party’s 

argument not raised in its petition); Connolly-Pacific Co., 36 FMSHRC 1549, 1553 n.7 (June 

2014) (declining to reach the issue of fair notice and due process because it was not raised by the 

operator in its petition); Consolidation Coal Co., 18 FMSHRC 1541, 1544 n. 4 (Sept. 1996) 

(declining to review a fair notice argument because the operator did not raise it in its PDR). 

My colleagues’ disdain for the Secretary’s special assessment process is such that it has 

prompted them to reach beyond these statutory boundaries circumscribing the Commission’s 

review.8 In an effort to limit the effect of a specially assessed violation in proceedings before the 

Commission, the majority would vary the scope of a Judge’s opinion depending on which 

method the Secretary used to compute the proposed penalty. Notably, this issue was not raised 

before the Judge in the proceeding below. Nor was it addressed in the operator’s petition for 

discretionary review or even discussed by the parties in their briefs to us. The majority chooses 

to opine extensively on the deficiencies it believes underlie the Secretary’s decision to specially 

assess certain violations, and to find fault with the manner in which the Secretary computes such 

penalties, but it sees no need to hear from the parties on this issue, including the Secretary, 

whose actions are the subject of their ire. 

Although the majority, in bringing up this issue, has exceeded the Commission’s proper 

scope of review, I feel compelled to respond to some of my colleagues’ most erroneous 

assertions. 

B. The Requirement that a Judge Explain a Substantial Divergence from the 

Secretary’s Proposed Penalty Should Apply to Both Regular and Special 

Assessments 

Looking for additional support for their procedural overreach, my majority colleagues 

rely on the recent decision in American Coal, 933 F.3d 723, for support. Unfortunately, that 

opinion does not provide them with even a fig leaf’s worth of cover. 

 The majority’s effort to distinguish between a Judge’s treatment of regular and special 

penalty proposals contravenes the central principle guiding the D.C. Circuit’s opinion in 

American Coal: that for purposes of assessing a penalty, it is irrelevant whether the Secretary’s 

proposal was calculated under the regular or special assessment regulations. Indeed, the court 

emphasized that: 

[T]he entire regulatory framework distinguishing between socalled “special” and “regular” assessments applies only to guide 

the Secretary. It “do[es] not extend to the independent 

8

 In rationalizing this unprecedented departure from time-honored statutory mandates, the 

majority makes the unremarkable assertion that “it is obviously necessary for us to apply the 

correct legal standard in deciding cases on review.” Slip op. at 19. This is undoubtedly true, but 

pertains only to the legal standards needed to decide cases before us. Here, because the proposed 

and assessed penalties were identical, any opinion on the legal issue of whether the Sellersburg

“substantial deviation” explanation requirement should apply is not only unnecessary but also 

unauthorized by law. 

42 FMSHRC Page 217
Commission,” and it is “not binding in any way in Commission 

proceedings.” . . . . 

 . . . . 

 . . . The only penalty calculation that matters is the 

Commission’s, which is independent of the Secretary’s. 

Id. at 727 (citations omitted). 

Moreover, in affirming the Judge’s penalty assessment, the court noted that: 

[H]e arrived at an independent determination of a penalty amount 

that would respond to the seriousness of the Company’s violations 

and would deter future violations. The ALJ also contrasted his 

judgment with that of the Secretary “[t]o the extent that there were 

any substantial deviations in [his] penalty amounts that would 

require a[n] . . . explanation.” The ALJ need drill no deeper. 

Id. at 728 (citations omitted). Thus, one of the grounds upon which the court in American Coal

affirmed the Judge’s penalty assessment was precisely because he explained why his penalty 

deviated from the Secretary’s proposed special assessment. 

Indeed, in special assessment cases my colleagues have essentially flipped Sellersburg on 

its head. An explanation will be required if the penalty has not diverged sufficiently from the 

special assessment. The Commission decisions in AmCoal illustrate this development. 

 In The American Coal Co., 38 FMSHRC 1987 (Aug. 2016) (“AmCoal I”), cited by our 

colleagues, the Judge assessed a penalty of $43,200. The Secretary’s special assessment penalty 

proposal was $69,600. The Commission majority, concerned that the Judge may have been 

unduly influenced by the Secretary’s special assessment, vacated and remanded the Judge’s 

decision with instructions to the Judge that he explain whether he relied on the special 

assessment as a baseline. Id. at 1997. On remand the Judge stated that he did not rely on the 

Secretary’s proposed special assessment as a starting point, and he reaffirmed the penalties he 

assessed in his initial decision. 38 FMSHRC 2612 (Oct. 2016) (ALJ). A second appeal resulted 

in a 2-2 decision. The American Coal Co., 40 FMSHRC 1011 (Aug. 2018) (“AmCoal II”). 

Despite the Judge’s assurance, the two majority colleagues concluded that the special 

assessments undoubtedly create an “anchoring effect,” id. at 1038, and that the Judge had still 

not provided a reasonable basis for what they considered to be unusually high penalties, 

especially as compared to the regular assessment MSHA could have proposed. Id. at 1036. 

 In contrast, a “regular” penalty proposal is considered by the majority to be inherently 

reasonable. I suspect no eyebrows would be raised by my majority colleagues should a Judge 

decide to impose an amount similar or equal to the amount computed under the Secretary’s 

regular assessment formula. Indeed, if a Judge decides to substantially increase the penalty from 

42 FMSHRC Page 218
the amount proposed by the Secretary in a regular penalty proposal, our colleagues insist 

Sellersburg would require the Judge to explain that divergence.9

Because the higher penalties proposed under the special assessment process are viewed 

by the majority as inherently arbitrary, and based on “a secret theory of the case,” slip op. at 9 

n.13, a Judge who decides to impose a penalty anywhere close to the specially assessed amount

proposed by the Secretary may find his or her opinion subjected to strict scrutiny. The Judge, as

is the Judge in this case, may be accused of “failing to exercise his own responsibility to conduct

an independent and reasoned analysis using the record evidence. See AmCoal I.” Slip op. at 9

(emphasis in original). Indeed the majority admits as much here, as it claims that requiring an

explanation of divergences between MSHA’s special assessment and the penalty assessed by the

Judge “interject[s] a foundational bias toward the enhanced penalty into the consciousness of the

trier of fact, whether or not the reason for the enhancement has been validated by the trial

process.” Id. at 20 (emphasis added). Apparently, therefore, even if the trial evidence would

support an enhanced penalty, my colleagues will be reluctant to affirm it, having viewed the

Judge as being biased towards MSHA’s proposal.

Consequently, I fear our Judges may conclude the only way to avoid numerous remands, 

and demonstrate their independence from what my majority colleagues consider to be the 

Secretary’s arbitrary special assessment, is to assess an amount significantly lower than the 

figure proposed by the Secretary. Moreover, according to my colleagues’ instruction, the Judge 

would not even need to explain the divergence.10

C. Conclusion

For the foregoing reasons, I respectfully dissent from the opinion of the majority. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

9 An explanation would also be required if his or her assessment was substantially lower 

than the Secretary’s proposed regular assessment. 

10 I recognize that theoretically a Judge could independently decide to assess a penalty 

significantly higher than the special assessment proposed by the Secretary, and consistent with 

my colleagues approach, no explanation would be required in that event either. 

42 FMSHRC Page 219

ADMINISTRATIVE LAW JUDGE DECISIONS
42 FMSHRC Page 220
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

March 3, 2020 

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION 

ORDER GRANTING SECRETARY’S MOTION FOR SUMMARY DECISION 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Lewis 

On December 20, 2019, The Secretary of Labor (“Secretary”) and K C Transport 

(“Respondent”) filed with the undersigned cross-motions for partial summary decision in WEVA 

2019-458.1 The parties settled 18 of the 20 citations included in this docket prior to the motions 

for summary decision.2 The two remaining citations at issue in the motions for summary decision 

are Citation Nos. 9222038 and 9222040, both for alleged violations of 30 C.F.R. § 77.404(c).3

1

 The parties were offered the opportunity to file Reply Briefs and they both did so on 

January 10, 2020. 

2

 A Decision Approving Partial Settlement was issued on December 19, 2019. 

3

 The full text of the Regulation is as follows: 

§ 77.404 Machinery and equipment; operation and maintenance.

(a) 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. 

(b) Machinery and equipment shall be operated only by persons trained in

the use of and authorized to operate such machinery or equipment. 

(c) Repairs or maintenance shall not be performed on machinery until the

power is off and the machinery is blocked against motion, except where 

machinery motion is necessary to make adjustments. 

(d) Machinery shall not be lubricated while in motion where a hazard

exists, unless equipped with extended fittings or cups. 

30 C.F.R. § 77.404. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

K C TRANSPORT, INC., 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2019-458 

A.C. No. 46-02444-487883 A8938

Mine: Elk Creek Plant 

42 FMSHRC Page 221
Both citations were issued for conditions of trucks owned by Respondent that were in the 

parking area of K C Transport’s truck maintenance facility in Emmett, West Virginia (the 

“Emmett facility” or “maintenance facility”) at the time the citations were issued. The 

Respondent is challenging Mine Act jurisdiction over the Emmett facility and the trucks parked 

therein. The parties have stipulated that should this Court find that MSHA had jurisdiction over 

the trucks and location, the cited conditions would constitute violations of 30 C.F.R. § 77.404(c), 

that both violations were abated in good faith, that the gravity findings are accurate, and that the 

negligence for each citation should be modified from moderate to low. The parties further 

stipulated that the appropriate penalty amount for Citation No. 9222038 would be $3,908.00 and 

the appropriate penalty amount for Citation No. 9222040 would be $4,343.00. Accordingly, the 

only matter before this Court is a jurisdictional question. 

For the following reasons, I grant the Secretary’s Motion for Summary Decision and 

deny the Respondent’s Motion for Summary Decision. 

Undisputed Facts 

The parties in this case have worked diligently in creating a detailed list of joint 

stipulations.4 They are as follows: 

1. The Administrative Law Judge and the Federal Mine Safety and Health 

Review Commission have jurisdiction to hear and decide civil penalty 

proceedings pursuant to Section 105 of the Federal Mine Safety and Health 

Act of 1977. 

2. On March 11, 2019, MSHA Coal Mine Inspector John M Smith was 

conducting inspection activities at the Elk Creek Prep Plant, Mine ID 46-

02444. 

3. The Elk Creek Prep Plant is owned and operated by Ramaco Resources, LLC. 

(“Ramaco Resources”). 

4. After completing his activities at the Elk Creek Prep Plant on March 11, 2019, 

CMI Smith traveled more than a mile up the hollow along the haul-road and 

then turned off the haul-road at Right Hand Fork Road and followed Right 

Hand Fork Road across a creek about 1000 feet to a location where K C 

Transport had constructed a parking area with two maintenance shipping 

containers. K C Transport purchased the gravel and stone for the parking lot 

and constructed the parking area. K C Transport also has commercial 

insurance to cover this facility. 

5. Inspector Smith traveled up the haul-road and Right Hand Fork Road because 

he was looking for trucks to issue terminations for previously issued citations. 

When he reached K.C. Transport’s maintenance lot, he observed the trucks 

cited in Citation Nos. 9222038 and 9222040. 

4

 Joint Stipulations will be designated by JS ¶ followed by the stipulation number. 

42 FMSHRC Page 222
6. At the time of the citations, K C Transport was in the process of constructing a 

new maintenance shop at that location. The construction materials for a 

planned approximately 60’ x 70’ metal building for the new maintenance shop 

had arrived at the site but were staged on pallets and the metal building had 

not yet been constructed. The parking area for the planned maintenance shop 

had been constructed and K C was using two shipping containers and two 

service trucks for its maintenance needs. 

7. K C Transport is an independent trucking company which provides hauling 

services to various businesses, including coal hauling, earth hauling and 

gravel hauling. 

8. K C Transport provides coal hauling services to various coal mine operators, 

including, but not limited to Ramaco Resources. 

9. K C Transport operates truck maintenance and storage facilities at five (5) 

locations, including one at Bluefield West Virginia, one at Taz[e]well, 

Virginia, two at Princeton, West Virginia, one at Man, West Virginia and the 

one at issue in this proceeding in Emmett, West Virginia. 

10. The new K C Transport maintenance area is located on Right Hand Fork 

Road, which is a road off the haulage road, which runs past the Elk Creek 

Plant operated by Ramaco Resources. It is located approximately 1000 feet 

from the haulage road. 

11. The K C Transport maintenance facility is more than a mile up the hollow 

from the Elk Creek Plant. The Elk Creek Preparation Plant is the nearest coal 

extraction/preparation facility to K C Transport’s maintenance facility. 

12. There is a gate at the entrance to the K C Transport facility on Right Hand 

Fork Road and there is no other way into the hollow where it is located. At the 

time Citation Nos. 9222038 and 9222040 were issued, the gate was in need of 

repair and was not operational. KC Transport usually operates this 

maintenance facility on a 24-hour, 6 day a week basis. Right Hand Fork Road 

dead ends on the other side of the KC Transport facility. The road into the K 

C Transport facility is not a coal haulage road but does branch off from a 

haulage road. 

13. K C Transport shares the parking area for its maintenance facility with a 

logging company. Ramaco Resources has no personnel or equipment at the 

facility. 

14. K C Transport operates both on-road and off-road trucks out of this facility. 

The off-road trucks provide haulage for five (5) nearby Ramaco Resources’ 

mines. The on-road trucks provide earth haulage services for AEP, gravel 

haulage services to other customers and coal haulage services for customers 

other than Ramaco Resources. 

42 FMSHRC Page 223
15. KC Transport asserts that about 60% of the services from this K C facility are

to the five (5) nearby Ramaco Resource mines, including the 3 deep mines, a

strip mine and a highwall mine. The other 40% of K C Transport’s work from

this location is to provide services for companies other than Ramaco

Resources, including American Electric Power (“AEP”) and other coal

operators. For example, for the past 4-5 months, K C Transport has been

working on a large earth moving project for AEP and the trucks working on

this project are parked and maintained at the Emmett shop. Although the

Secretary has no knowledge of these facts, the Secretary does not dispute the

company’s assertions.

16. This facility provides a convenient centralized maintenance facility in Logan

County for KC Transport.

17. Representatives of Ramaco told K C Transport they could use the area where

the trucks referenced in Citation Nos. 9222038 and 9222040 were located for

a maintenance facility and assured K C Transport that this area was not on

permitted, bonded mine property, so Ramaco would not be operating there.

The Secretary has no evidence that K C Transports’ facility is on permitted,

bonded mine property. Ramaco Resources has no plans to operate a coal mine

at the location where K C Transport maintains its maintenance area/shop. K C

Transport uses the property for purposes of maintaining a portion of its truck

fleet, including those trucks servicing the Ramaco Resources mines and

customers other than Ramaco Resources.

18. The haul trucks cited in Citation Nos. 9222038 and 9222040 were owned by

K C Transport and were located at KC Transport’s Emmett, West Virginia

maintenance facility when cited. The haul trucks referenced in Citation Nos.

9222038 and 9222040 were regularly used to haul coal from the five Ramaco

mines to the Elk Creek prep plant at the time of the citations.

19. At the time that CMI Smith inspected the haul trucks referenced in Citation

Nos. 9222038 and 9222040, the trucks were not hauling coal, were not on a

haul-road and were parked at K C Transport’s maintenance area for

maintenance work to be performed on the trucks.

20. On March 11, 2019, K C Transport’s maintenance/shop area, where the trucks

referenced in Citation Nos. 9222038 and 9222040 were located, was property

that was not permitted or bonded by the state of West Virginia. See

Respondent’s Exhibit A (map).

21. Until the Citation Nos. 9222038 and 9222040 were issued, MSHA never

sought to enter or inspect K C Transport’s Emmett maintenance shop or

parking area at any time, from the time K C Transport constructed the parking

lot to the time the citations were issued. MSHA has not attempted to enter or

inspect this area or the trucks while at this location, since the citations.

42 FMSHRC Page 224
22. On one occasion, on April 3, 2018, MSHA did cite a work trailer and muddy 

parking area that K.C. Transport had adjacent to where the haulage road 

intersects with Right Hand Fork Road. (Citation Nos. 9174394 and 9174395). 

However, MSHA vacated the citations for the work trailer and muddy parking 

lot. After this incident, K C Transport elected to construct the new facility 

approximately 1000 feet away from the haulage road up Right Hand Fork 

Road. 

23. When Citation Nos. 9222038 and 9222040 were issued, MSHA did not 

attempt to inspect the shipping containers, service trucks or any other trucks at 

the location, nor did MSHA inspect the logging trucks which were located at 

K C Transport’s maintenance area. 

24. To get to KC transport’s Emmett facility, it is necessary to pass along the 

Ramaco Resources, LLC’s Elk Creek Plant haul-road until reaching the Right 

Hand Fork Road hollow where the facility is located. Then it is necessary to 

cross a creek and drive 1000’ up Right Hand Fork Road to the facility. 

25. KC Transport’s maintenance facility where these trucks were inspected is 

located more than a mile from the Elk Creek Plant, approximately 4-5 miles 

from three (3) deep mines operated by Ramaco Resources, LLC and six (6) 

miles from a strip mines and highwall mines operated by Ramaco Resources. 

Thus, the closest location where coal is mined or prepared is more than a mile 

from this facility. 

26. All of the Ramaco mines are accessed via the haul-road. That haul-road is a 

public road for some distance. However, before reaching the Elk Creek Plant, 

there is a gate limiting public access to the haul-road beyond that location. 

The gate is manned and only authorized persons are permitted beyond that 

point. The haul-road beyond the gate is maintained by Ramaco Resources and 

is no longer a public road. KC Transport’s maintenance area is also accessed 

only by traveling through the gate and up the haul-road to the turn-off at Right 

Hand Fork Rd, although Right Hand Fork Road is not part of the haul-road. 

27. At various times, the cited trucks have hauled coal from each of the Ramaco 

mines to the Elk Creek Plant. The cited trucks were not licensed to haul 

products over public roads at the time the citations were issued, but they have 

been in the past and they may be in the future. 

28. On or about March 11, 2019, the trucks referenced in Citation Nos. 9222038 

and 9222040 were only being operated on private land, including haul-roads 

operated by Ramaco Resources. There were other trucks parked at that same 

location which were used by K C Transport to haul coal and materials other 

than coal and for customers other than Ramaco. 

29. The cited trucks are inspected regularly by MSHA when they are at the five 

(5) Ramaco Resources LLC mines and at the Elk Creek prep plant and along 

42 FMSHRC Page 225
the haul-road. They had never previously been inspected at K C Transport’s 

maintenance facility/parking area. 

30. K C Transport operates about 35 trucks from the Emmett, West Virginia, 

Maintenance Facility. 

31. The proposed penalty amounts that have been assessed for the violations at 

issue pursuant to 30 U.S.C. Section 820(a) will not affect the ability of K C 

Transport to remain in business. 

32. MSHA Coal Mine Inspector John M Smith was acting in his official capacity 

and as an authorized representatives of the Secretary of Labor when Citation 

Nos. 9222038 and 9222040 involved in this proceeding were issued. 

33. True copies of each of the citations that are at issue in this proceeding along 

with all continuation forms and modifications, were served on K C Transport 

or its agent as required by the Act. 

34. Each of the violations involved in this matter were abated in good faith. 

35. Government Exhibit 1 is an authentic copy of Citation No. 9222038, with all 

modifications and abatements, and may be admitted into evidence for the 

purpose of establishing its issuance and not for the purpose of establishing the 

accuracy of any statements asserted therein. 

36. Government Exhibit 2 is an authentic copy of Citation No. 9222040,5

 with all 

modifications and abatements, and may be admitted into evidence for the 

purpose of establishing its issuance and not for the purpose of establishing the 

accuracy of any statements asserted therein. 

37. Respondent’s Exhibit A is a map of the area. Neither party contests its 

authenticity and it may be admitted into evidence for the purpose of 

demonstrating the layout of the area and the permitted, bonded areas for the 

Court as well as the location of K C Transport’s facility in relation to the Elk 

Creek Plant. 

38. With respect to Citation Nos. 9222038 and 9222040, K C Transport contests 

that MSHA had jurisdiction over the trucks referenced in the citations, while 

located at KC Transport’s Emmett, WV maintenance facility. K C Transport 

argues that both citations should be vacated for lack of jurisdiction at this 

location. 

39. With respect to Citation Nos. 9222038 and 9222040, should the administrative 

law judge find that MSHA did have jurisdiction over the trucks, while at K C 

Transport’s maintenance facility, K C Transport concedes that the conditions 

then present would violate 77.404(c) if the trucks had been subject to 

5

 The parties erroneously listed this citation as 9222038. 

42 FMSHRC Page 226
jurisdiction. With respect to Citation Nos. 9222038 and 9222040, should the 

administrative law judge affirm the finding that 77.404(c) was violated, the 

parties have agreed that the gravity findings set forth in the citations shall be 

affirmed. 

40. With respect to Citation Nos. 9222038 and 9222040, should the administrative 

law judge find jurisdiction and affirm the finding that 77.404(c) was violated, 

the negligence for each citation shall be modified from moderate to low. 

41. With respect to Citation No. 9222038, should the administrative law judge 

find jurisdiction and affirm the finding that 77.404(c) was violated, the parties 

agree that the appropriate penalty amount is $3,908.00. 

42. With respect to Citation No. 9222040, should the administrative law judge 

find jurisdiction and affirm the finding that 77.404(c) was violated, the parties 

agree that the appropriate penalty amount is $4,343.00. 

43. For purposes of Section 110(i) of the Act, the proposed penalty amounts are 

appropriate given the operator’s history of violations and the size of the 

operator. 

44. Government Exhibit 3 is a photograph depicting how the truck referenced in 

Citation No. 9222038 appeared at the time of inspection. 

45. Government Exhibit 4 is a photograph depicting how the truck referenced in 

Citation No. 9222040 appeared at the time of inspection. 

Secretary Motion for Partial Summary Decision, 3-12.6

 Respondent’s Motion for Summary 

Decision, 1-3; Secretary’s Motion for Summary Decision, 4-5. In addition to the stipulated facts, 

the parties each submitted exhibits. 

Summary Decision Standard 

The Court may grant summary decision where the “entire record...shows: (1) That there 

is no genuine issue as to any material fact; and (2) That the moving party is entitled to summary 

decision as a matter of law.” 29 C.F.R. § 2700.67(b); see also UMWA, Local 2368 v. Jim Walter 

Res., Inc., 24 FMSHRC 797, 799 (July 2002); Energy West Mining, 17 FMSHRC 1313, 1316 

(Aug. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986), which interpreted 

Fed.R.Civ.P. 56). The Commission has analogized its Rule 67 to Federal Rule of Civil Procedure 

6

 References to the Secretary of Labor’s exhibits are designated as “SX.” References to 

Respondent’s exhibits are designated “RX.” References to the Secretary’s Motion for Partial 

Summary Decision are designated “SB” followed by the page number. References to the 

Secretary’s Reply Brief are designated “SRB” followed by the page number. References to the 

Respondent’s Memorandum of Law in Support of Motion for Summary Decision are designated 

“RB” followed by the page number. References to Respondent’s Reply Brief are designated 

“RRB” followed by the page number. 

42 FMSHRC Page 227
56, which authorizes summary judgments upon a proper showing of a lack of a genuine, triable 

issue of material fact. Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007). A 

material fact is “a fact that is significant or essential to the issue or matter at hand.” Black's Law 

Dictionary (9th ed. 2009, fact). “There is a genuine issue of material fact if the nonmoving party 

has produced evidence such that a reasonable factfinder could return a verdict in its favor.” 

Greenberg v. Bellsouth Telecommunications, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (citation 

omitted). The court must evaluate the evidence “in the light most favorable to ... the party 

opposing the motion.” Hanson Aggregates, 29 FMSHRC at 9. Any inferences drawn “from the 

underlying facts contained in [the] materials [supporting the motion] must be viewed in the light 

most favorable to the party opposing the motion.” Id. Though the moving party bears the initial 

burden of informing the court of the basis for its motion, it is not required to negate the 

nonmoving party’s claims. Celotex, 477 U.S. at 323. “When the moving party has carried its 

burden under Rule 56(c), its opponent must do more than simply show that there is some 

metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a 

rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Scott v. 

Harris, 550 U.S. 372, 380 (2007) (citation omitted). 

Analysis 

This case concerns the limits of MSHA jurisdiction, and like many jurisdictional cases, it 

raises difficult, often novel issues, driven by the precise facts of the case. As Judge Manning has 

eloquently stated, “Jurisdictional issues under the Mine Act are often factually complex. The 

Commission and various federal circuit courts have wrestled with these issues... Whether 

MSHA has jurisdiction under the specific facts at issue here will be one of the key issues in these 

cases.” Cox Transportation Corp., 22 FMSHRC 568, 569–70 (April 5, 2000) (ALJ). The case is 

made even more difficult because even though both parties are arguing about jurisdiction, their 

arguments are often not directed at each other. 

K C Transport is an independent trucking business that provides hauling services to 

various businesses, including coal and gravel mines. JS ¶¶ 7, 8. It owns and operates five 

maintenance and storage facilities in Virginia and West Virginia. JS ¶ 9. At issue here are trucks 

that were located in the Emmett, West Virginia maintenance facility (hereinafter referred to as 

the “maintenance facility”). JS ¶¶ 4-6. The maintenance facility provides off-road trucks for 

haulage for five nearby Ramaco Resources mines and on-road trucks for earth haulage services 

for American Electric Power (“AEP”), as well as trucks for gravel and coal haulage for other 

customers. JS ¶ 14. Approximately 60% of the services from the maintenance facility are for the 

five nearby Ramaco Resources mines, including three deep mines, a strip mine, and a highwall 

mine. JS ¶ 15. The other 40% of K C Transport’s work from this facility provides services for 

AEP and other coal operators. JS ¶ 15. At the time of the citations, K C Transport was in the 

process of constructing a new maintenance shop at this location. JS ¶ 6. 

In order to get to the maintenance facility, one travels along the Ramaco Resources Elk 

Creek Plant haul-road until reaching the Right Hand Fork Road, following that road for 

approximately 1,000 feet, until reaching the facility. JS ¶¶ 4, 10, 24. The haul-road “is a public 

road for some distance.” JS ¶ 26. The maintenance facility is located more than a mile from the 

Elk Creek Plant, approximately four to five miles from three deep mines operated by Ramaco 

42 FMSHRC Page 228
Resources, and six miles from strip mines and highwall mines operated by Ramaco. Therefore, 

the closest location where coal is mined or prepared is more than a mile from the maintenance 

facility. JS ¶ 25. 

Here, an MSHA inspector at the Elk Creek Prep Plant traveled more than a mile up the 

hollow along the haul-road, then turned at the Right Hand Fork Road and traveled along it for 

approximately 1,000 feet, crossed a creek, and arrived at the maintenance facility. JS ¶ 4. Once 

he arrived, he cited two trucks that were undergoing maintenance at the off-site K C Transport 

maintenance facility for violations of 30 C.F.R. § 77.404(c).7 JS ¶ 5; SX-1; SX-2. The mandatory 

standard provides that “repairs or maintenance shall not be performed on machinery until the 

power is off and the machinery is blocked against motion, except where machinery motion is 

necessary to make adjustments.” 30 C.F.R. § 77.404(c). At the time the trucks were cited, the 

trucks were not hauling coal or on a haul-road; rather, they were parked at the maintenance 

facility for maintenance work. JS ¶ 19. The cited trucks have hauled coal from each of the 

Ramaco mines to the Elk Creek Plant. JS ¶ 27. The parties agree as to the gravity, negligence, 

and penalty amounts if this Court finds jurisdiction over the trucks here. JS ¶ 39-43. 

Contentions of the Parties 

A difficult aspect of this case is that the parties do not seem to be on the same page as to 

what issue is before the Court, with the Secretary arguing for jurisdiction over the trucks and the 

Respondent arguing against jurisdiction over the maintenance facility. The Secretary states in its 

opening brief, “The parties agree that the only issue in dispute concerning the citations is 

whether the trucks are subject to MSHA coverage.”8 SB at 1. Throughout its brief, the 

Secretary’s arguments are almost entirely in support of the trucks, rather than the facility, being 

under MSHA’s jurisdiction. The Secretary clarifies that “whether the maintenance area is a mine 

7

 Citation No. 9222038 states: 

The red Mack tandem coal truck Co# 120 is jacked up with the wheels and 

tires off both back axles and is not blocked to prevent motion. The rear of the 

truck is jacked up by using blocking under the back end of the bed and using the 

motion of the bed when raised to lift the back wheels off the ground. Work is 

being preformed [sic] on the brakes located on the back axles of the truck. 

Standard 77.404(c) was cited 1 time in two years at mine 4602444 (0 to the 

operator, 1 to a contractor). 

GX-1. Citation No. 9222040 states: 

The bed on the Mack Co#5 coal truck is in the raised position and is not 

blocked against motion. A miner is observed standing on the frame of the truck 

under the raised unblocked bed. This citation was factor that contributed to the 

issuance of Imminent Danger Order No. 9222039 dated 3/11/2019. Therefore, no 

abatement time was set. Standard 77.404(c) was cited 2 times in two years at mine 

4602444 (2 to contractor 77.404(c)). 

SX-2. 

8

 As will be discussed, infra, the parties did not in fact agree on this being the sole issue. 

42 FMSHRC Page 229
subject to MSHA coverage need not be decided in this case to determine whether MSHA 

coverage applied to the subject trucks.” SRB at 1. 

In contrast, the Respondent states that “all that remains for the Court to decide is the 

purely legal issue of whether MSHA had jurisdiction over K C Transport’s Emmett facility.” RB 

at 6. The Respondent argues that “because K C Transport’s Emmett facility is not a ‘coal or other 

mine,’ as defined in the Federal Mine Safety and Health Act of 1977 (‘Mine Act’), the Court 

should find that MSHA was without jurisdiction over the facility and that Citation Nos. 9222038 

and 9222040 should be vacated.” RB at 1. The Respondent’s brief vacillates between arguing 

against this position that the Secretary does not take and arguing that MSHA cannot assert 

jurisdiction over the trucks without jurisdiction over the maintenance facility. RB at 8. 

 The Secretary argues that the definition of a “mine” was intended to be read broadly, and 

that the trucks referenced in the citations are equipment that were used in the extraction and 

preparation of coal and therefore subject to Mine Act coverage. SB at 14. The Secretary makes 

clear that its argument is that the trucks, not the maintenance facility or any structures on the site, 

are under MSHA jurisdiction. SRB at 1. The Secretary argues that though the Act is clear, if this 

Court finds ambiguity, the Secretary should be accorded Chevron deference. SB at 15-16. If this 

Court does not extend MSHA jurisdiction to the trucks, the Secretary asserts that it would create 

“a bifurcated coverage scheme [that] would be impractical, if not impracticable, and would lead 

to confusion on the part of miners and the operator itself as to what standards were applicable at 

any given time.” Id. at 19. The Secretary refers to this bifurcated coverage between MSHA and 

OSHA as “an absurd result.” SRB at 3. 

The Respondent argues that off-site facilities, such as the maintenance facility here, are 

not under MSHA jurisdiction. RB at 6-7. It further argues that location is key to understanding 

whether MSHA has jurisdiction over equipment, and that MSHA cannot simply attach 

jurisdiction to a piece of mobile equipment and follow that equipment “wherever it goes.” RB at 

2. It argues that MSHA can cite the trucks at issue while they are at any of the Ramaco mines or 

Elk Creek preparation plant, but not when they are located in an area that is not under MSHA’s 

jurisdiction. 

Because the parties’ briefs raise both the issue of whether the maintenance facility is a 

mine and whether the trucks are mines, this Court will consider both questions. Based on the 

following analysis, this Court rejects the Secretary’s argument that each of these trucks 

constituted a “mine” under the Act no matter where they are located. However, this Court also 

rejects the Respondent’s argument that the maintenance facility was not a “mine” under the Act. 

Rather, this Court finds that the maintenance facility was a “mine” under Section 3(h)(1)(C), and 

because the trucks were used in mining and parked at the facility, they constituted “equipment” 

under the same section. However, MSHA’s jurisdiction over the trucks is not limitless; though it 

is clear that MSHA had jurisdiction in the instant case, it would likely lack such jurisdiction if 

the trucks were at a non-mining site performing non-mining activities. 

 

42 FMSHRC Page 230
Case Disposition 

The first inquiry here must be “whether Congress has directly spoken to the precise 

question at issue.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). “If the intent of 

Congress is clear, that is the end of the matter; for the court, as well as the agency, 

must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-

843. “In ascertaining the plain meaning of the statute, courts utilize traditional tools of 

construction, including an examination of the ‘particular statutory language at issue, as well as 

the language and design of the statute as a whole,’ to determine whether Congress had an 

intention on the specific question at issue. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 

(1988); Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal Employment Project v. 

Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989).” MSHA v. Jim Walter Resources, Inc., 22 FMSHRC 

21 (Jan. 31, 2000). If it is found that Congress has not addressed the question at issue, “the court 

does not simply impose its own construction on the statute... Rather, if the statute is silent or 

ambiguous with respect to the specific issue, the question for the court is whether the agency's 

answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 842-843. 

Examining the Mine Act, as well as relevant legislative history, I find that Congress has 

directly spoken to the precise question at issue. Though the definition of a “mine” under the 

Mine Act is broad and was intended to be read expansively, it was not intended to be limitless. 

The Secretary’s argument that MSHA has jurisdiction over a truck that was used to haul coal, no 

matter where that truck is located, expands MSHA’s jurisdiction to every road, parking lot, 

garage, and facility in the country. Mobile equipment such as trucks would essentially become 

rolling mines under the Secretary’s interpretation. Under the Secretary’s interpretation, if the 

trucks at issue here were hundreds of miles from the mine and were undergoing maintenance at a 

private mechanic, MSHA would have jurisdiction over those trucks. If the trucks were parked at 

a diner while the drivers ate, MSHA would have jurisdiction. If the trucks were hauling lumber 

for a lumberyard, MSHA would have jurisdiction. Beyond the absurdity of MSHA having 

geographically and functionally limitless jurisdiction over the trucks, there would also be the 

problem that any person working on the truck or driving it at any time might be considered a 

miner under Section 3(g) (“‘miner’ means any individual working in a coal or other mine.” 30 

U.S.C. 802(g).) 

“In enacting the statute, Congress was plainly aware that the mining industry is among 

the most hazardous in the country and that the poor health and safety record of this industry has 

significant deleterious effects on interstate commerce.” Donovan v. Dewey, 452 U.S. 594, 602 

(1981). As a result, Congress took care to put in place a strict regulatory scheme to protect the 

health and safety of miners at a mine. However, it carefully described what constituted a mine, 

creating three general categories that were geographically and functionally centered. Congress’s 

definition does not include trucks in whatever location they may be and whatever they may be 

doing. However, the Mine Act clearly defines a mine in a manner that includes, under the facts 

of this case, both the maintenance facility and the equipment (or trucks) therein. While MSHA 

cannot simply attach jurisdiction to the trucks and follow them wherever they may drive, it can 

42 FMSHRC Page 231
assert jurisdiction over the maintenance facility and all the equipment at the facility that is used 

for mining.9

 Section 4 of the Mine Act makes clear that “Each coal or other mine, the products of 

which enter commerce, or the operations or products of which affect commerce, and each 

operator of such mine, and every miner in such mine shall be subject to the provisions of this 

chapter.” 30 U.S.C. § 803. The Act further provides in Section 3(h)(1) three categories of 

definitions for what constitutes a “coal or other mine” as: 

(A) an area of land from which minerals are extracted in nonliquid form or, if in 

liquid form, are extracted with workers underground, (B) private ways and roads 

appurtenant to such area, and (C) lands, excavations, underground passageways, 

shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, 

tools, or other property including impoundments, retention dams, and tailings 

ponds, on the surface or underground, used in, or to be used in, or resulting from, 

the work of extracting such minerals from their natural deposits in nonliquid 

form, or if in liquid form, with workers underground, or used in, or to be used in, 

the milling of such minerals, or the work of preparing coal or other minerals, and 

includes custom coal preparation facilities. 

30 U.S.C. § 802(h)(1). Because the controversy in this case concerns whether either the 

maintenance facility and/or the trucks could constitute a “mine,” it is clear that subsection (A) 

concerning land, and subsection (B) concerning private ways and roads, are not at issue.10

Specifically, it is the portion of subsection (C) that mentions “structures, facilities, equipment, 

machines, tools...used in, or to be used in, or resulting from, the work of extracting such 

minerals from their natural deposits....or used in, or to be used in, the milling of such minerals, 

or the work of preparing coal or other minerals,” that the Secretary argues provides jurisdiction 

over the trucks. SB at 13. 

When analyzing the definition of “mine” under the Act, one must not be “governed by 

ordinary English usage,” but rather by the broad definition and intent that Congress set forth. 

Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1551 (D.C. Cir. 1984). The Commission has 

repeatedly emphasized that “The definition of a ‘coal or other mine’ in section 3(h) of 

the Mine Act is broad, sweeping and expansive.” MSHA v. KenAmerican Resources, Inc., 42 

9

 It should be noted that if MSHA asserts jurisdiction over the maintenance facility, 

trucks and other equipment contained on the site, it must conduct inspections “of the mine in its 

entirety at least two times a year.” 30 U.S.C. § 813(a). In the instant case, the MSHA inspector 

only inspected the trucks, and “did not inspect the shipping containers, service trucks or any 

other truck at the location.” JS ¶ 23. It is not entirely clear from the record whether all this 

equipment was mining-related, but if so, MSHA would be required to conduct such 

comprehensive inspections. 

10 In National Cement Co. of Ca. Inc., the Secretary took the position that Section 

3(h)(1)(B) covers roads, but not vehicles on those roads. 573 F.3d 788, 794-796 (D.C. Cir. 

2009). 

42 FMSHRC Page 232
FMSHRC 1, 6 note 12 (Jan. 16, 2020); Jim Walter Resources, 22 FMSHRC at 24; MSHA v. 

Justis Supply & Machine Shop, 22 FMSHRC 1292, 1296 (Nov. 03, 2000). This description was 

based on the congressional intent of the Mine Act. The Senate Report accompanying the Mine 

Act states that “it is the Committee’s intention that what is considered to be a mine and to be 

regulated under this Act be given the broadest possibl[e] interpretation.” Donovan v. Carolina 

Stalite Co., 734 F.2d 1547, 1554-55 (D.C. Cir. 1984) (quoting S. Rep. No. 461, 95th Cong., 1st 

Sess. 37 (1977), U.S. Code Cong. & Admin. News 1977, 3401, 3414). “Close jurisdictional 

questions are to ‘be resolved in favor of inclusion of a facility within the coverage of the Act.’ Id. 

 Following this directive to interpret the definition of a mine broadly, ALJs, the 

Commission, and Federal Courts of Appeal have found a broad variety of lands, roads, 

structures, facilities, and equipment to constitute a mine. Combined these provide a general 

framework for the breadth and limits of MSHA jurisdiction, as well as the appropriate analysis to 

determine jurisdiction. 

In Marshall v. Stoudt’s Ferry Preparation Co., the Third Circuit held that a preparation 

plant that separated low-grade fuel from sand and gravel dredged from a riverbed was a mine. 

602 F.2d 589 (3rd Cir. 1979). Analyzing the Act’s use of the words, “structure” and “facility,” the 

Court stated that “although it may seem incongruous to apply the label ‘mine’ to the kind of 

plant operated by Stoudt's Ferry, the statute makes clear that the concept that was to be conveyed 

by the word is much more encompassing than the usual meaning attributed to it[. T]he word 

means what the statute says it means.” Id. at 592. Similarly, In Harman Min. Corp. v. FMSHRC, 

the Fourth Circuit held that a plant’s “car dropping” facility, where railroad cars were loaded 

with coal, was a mine. 671 F.2d 794 (4th Cir. 1981). The Court held that the broad definition of 

“mine” included “all of the facilities used at a coal preparation plant.” Id. at 796. In Donovan v. 

Carolina Stalite Co., the D.C. Circuit held that a slate gravel processing facility that was 

immediately adjacent to a quarry, but was not engaged in direct slate extraction was a mine 

because it fit within Section (C)’s inclusion of “structures.” 734 F.2d 1547 (D.C. Cir. 1984). 

In National Cement Co. of Ca. Inc., the D.C. Circuit held that the Secretary’s 

interpretation of Section 3(h)(1) was reasonable when it argued that Mine Act jurisdiction 

extended to a private road leading to the plant. 573 F.3d 788 (D.C. Cir. 2009). In this case, the 

Secretary explained the interplay between the three subsections of Section 3(h)(1)(B), which the 

Court accepted as reasonable. The Secretary interpreted the word “area” in Subsection (A) as 

“all-encompassing because virtually everything in an extraction area ... is necessarily related to 

[mining] activity.” Id. at 794. The Secretary interpreted Subsection (B) to cover mining roads, 

but not the vehicles traveling on those roads. Id. Lastly, the Secretary interpreted Subsection (C) 

to cover mining related vehicles traveling on mining roads. Id. at 795. “Subsections (B) and (C) 

can be read to work in tandem.” Id. 

In the seminal case, MSHA v. Jim Walter Resources, Inc., the Commission held that a 

central supply shop used to repair and maintain electrical and mechanical equipment at nearby 

42 FMSHRC Page 233
mines was a mine under the Act. 22 FMSHRC 21 (Jan. 2000).11 The Commission reasoned that 

the language of the Mine Act was clear, stating: 

The stipulated record is equally clear in establishing that the Central Supply Shop 

is a dedicated off-site facility of a (multiple) mine operator where employees 

receive, stock, maintain, and deliver equipment, tools, and supplies used at JWR’s 

coal extraction sites, preparation plants, and Central Supply Shop, including, inter 

alia, rock dust, line curtains, hard hats, machine parts, and conveyor belts. 

Consequently, there is Mine Act jurisdiction because a “““mine” includes 

“facilities” and “equipment ... used in or to be used in” JWR’s mining operations 

or coal preparation facilities. 

Id. At 25. In dicta, the Commission cited to the W.J. Bokus Industries for the proposition that 

“whether a mine operator’s equipment is covered by the Mine Act is not determined by its 

location but rather by its function -- that is, whether it is used in extracting or preparing coal.” Id.

at Note 11. 

In MSHA v. W.J. Bokus Industries, Inc., the Commission found that gas cylinders kept in 

a garage adjacent to an asphalt plant and beside an office used by the mine were under MSHA 

jurisdiction. 16 FMSHRC 704 (April 1994). The garage was regularly used by miners on miningrelated tasks. Id. at 708. In W.J. Bokus, it was unclear whether the ALJ found the garage itself to 

be under MSHA jurisdiction, but the Secretary’s position appeared to be that the equipment in 

the garage was under MSHA jurisdiction because the garage was under MSHA jurisdiction 

(“The Secretary assert[ed] that the judge ‘accepted that MSHA had jurisdiction over the garage.’ 

He infers that the judge would not have examined jurisdiction over items in the garage unless he 

assumed that MSHA had jurisdiction over the garage itself.” 16 FMSHRC at 707, FN 9). 

However, in reversing the ALJ, the Commission made clear that “we need not reach the issue 

raised by the Secretary, that the garage was a ‘structure’ or ‘facility’ used in mining and, 

therefore, a ‘mine’ within the meaning of section 3(h)(1) of the Mine Act.” Id. at 708. 

In MSHA v. Justis Supply & Machine Shop, the Commission relied on Jim Walter 

Resources to conclude that an off-site dragline assembly site was a mine under the Act. 22 

FMSHRC 1292 (Nov. 2000). The Commission found that the dragline was equipment “to be 

used in” mining coal, and the site and employees at the site were devoted to building the dragline 

that would be used at the mine. Therefore, the dragline assembly site was a mine under the Act. 

11 Similarly, in MSHA v. U.S. Steel Mining Co., the Commission held that an off-site 

central repair shop, which had a separate Mine ID, and “exists and functions to repair and 

maintain electrical and mechanical equipment used in or to be used in USSM's underground and 

surface coal mines and its coal cleaning plant” constituted a separate “surface coal mine” under 

the Act. 10 FMSHRC 146, 149 (Feb. 1988). Also, in MSHA v. W.F. Saunders & Sons, ALJ 

Melick held that a preparation plant’s truck shop and storeroom, which was primarily used to 

store and repair trucks used in mining, was a mine under the Act.1 FMSHRC 2130 (Dec. 28, 

1979) (ALJ). 

42 FMSHRC Page 234
In MSHA v. State of Alaska, Dept. of Transp., the Commission held that a SAG Screener, 

a mobile piece of equipment that excavated material at pits along a gravel road and which had its 

own MSHA Mine ID, was a mine under the Act. 36 FMSHRC 2642 (Oct. 2014). The 

Commission examined Subsections (A) and (C) in conjunction and held that even though the 

dedicated right-of-way may not fall under the definition of “private ways and roads” in 

Subsection (B), it was a piece of equipment used in a mining area. 

In MSHA v. Austin Powder, ALJ Andrews rejected the Respondent’s arguments that 

because an off-site storage facility was “not employed in” mining at the quarry, it was not a 

“mine.” 37 FMSHRC 1337, 1349 (June 8, 2015). He found that the storage facility was used to 

store explosives and related materials used in mining, and was therefore a “facility” under the 

Act. Id. at 1352. Similarly, In MSHA v. Youngquist Brothers Rock, Inc., ALJ Gill found that 

MSHA had jurisdiction to cite a truck that may have been on a section of the mine property 

where a restaurant was located. 36 FMSHRC 2492 (Sept. 19, 2014) (ALJ). Judge Gill’s analysis 

focused on the location of the truck when it was cited and he found jurisdiction specifically 

because it was on an area that fell under the definition of a “mine.” Further relevant to the instant 

case, in Youngquist MSHA’s position was that if the truck been outside the mine gates, MSHA 

would not have had jurisdiction over it.12 Id. at 2496. In MSHA v. Jeppesen Gravel, ALJ Melick 

held that a Caterpillar front end loader was under the Mine Act’s jurisdiction when it was being 

used to load gravel in a private way or road appurtenant to the area where the gravel was 

extracted. 32 FMSHRC 1749 (Nov. 18, 2010) (ALJ). In MSHA v. Northern Illinois Service Co., 

ALJ Gill held that MSHA had jurisdiction over a service truck and its contents when that truck 

was on mine premises, even if it was also used at non-mine locations. 36 FMSHRC 2811 (Nov. 

10, 2014) (ALJ). 

More recently, ALJ Simonton held that a parking lot and office that were located on mine 

property and adjacent to the plant’s active extraction sites was a mine under the Act. MSHA v. 

Rain for Rent, 40 FMSHRC 1267, 1271 (Aug. 22, 2018). The Judge emphasized that the 

“parking lot is on Natividad Plant property, adjacent to active extraction sites, and used for minerelated purposes.” Id. at 1272. In finding jurisdiction, Judge Simonton concluded that the “office 

and parking lot are thus geographically and functionally related to the mining process at 

Natividad Plant and are subject to MSHA jurisdiction under the Act.” Id. 

In MSHA v. Maxxim Rebuild Co., the Commission held that an off-site maintenance shop 

that was used primarily to maintain, repair, and fabricate equipment used in the mining process 

was a mine under the Act. 38 FMSHRC 605 (April 2016). However, this decision was reversed 

by the Sixth Circuit, in a sweeping decision that rejected Jim Walter Resources and much of the 

Commission’s reasoning on jurisdiction. Maxxim Rebuild Co. v. FMSHRC, 848 F.3d 737, 740 

(6th Cir. 2017). In looking at the three subsections in the definition of a “mine,” the Court 

emphasized, “Location, location, location: All three definitions are place connected and place 

12 MSHA has stated this position in several cases. In MSHA v. Drillex, Inc., the inspector 

“further confirmed that his enforcement jurisdiction over the respondent is limited to 

any trucks actually found on quarry or mine properties, and that in the instant case, he inspected 

the truck after it was driven onto the mine site in question.” 9 FMSHRC 1972, 1975 (Nov. 24, 

1987). 

42 FMSHRC Page 235
driven.” Id. at 742. The Sixth Circuit held that MSHA jurisdiction “extends only to such facilities 

and equipment if they are in or adjacent to—in essence part of—a working mine.”13 Id. at 740. 

Since the maintenance shop was not attached to or adjacent to a working mine, it did not fall 

under the Act’s definition of a mine. Id. at 742. With regards to equipment, the Court held that 

such equipment’s use in mining is not dispositive of MSHA jurisdiction. “It does not cover 

mining ‘equipment’ or for that matter mining ‘machines, tools, or other property’ wherever they 

may be found or made.” Id. at 740.14 In reaching its conclusion, the Court stated that for the same 

reason it was rejecting the Commission’s decision in Maxxim Rebuild, it rejected the 

Commission’s decision in Jim Walter Resources. Id. at 744. Throughout the decision, the Court 

expressed dismay that the Secretary’s position provided no natural limits. It emphasized that 

“The Secretary’s interpretation also has no stopping point,” Id. at 743, and that the definition’s 

“locational focus” provides such a limit. Id. at 742. 

This is not the only instance of a judge expressing that MSHA’s jurisdiction, while broad, 

must have limits. In Bush & Burchett, Inc. v. Reich, the Sixth Circuit rejected the argument that 

any road appurtenant to a mine was within MSHA’s jurisdiction, stating: 

Not only does the statute not compel such a reading, but also such a reading is 

contrary to common sense. Without some limitation on the meaning of “roads 

appurtenant to,” MSHA jurisdiction could conceivably extend to unfathomable 

lengths since any road appurtenant to a mine that connects to the outside world 

would necessarily run into yet other roads, thus becoming one contiguous road. 

Because of the potential reach of MSHA jurisdiction if the definition in § 

802(h)(1)(B) is left unfettered, “private ways and roads” cannot simply mean “any 

13 Similarly, in MSHA v. Pickett Mining Group, ALJ Rae found that MSHA lacked 

jurisdiction over a Ford tractor. 36 FMSHRC 2444 (Sept. 8, 2014) (ALJ). Judge Rae’s analysis 

looked at the location of the tractor and its use. She found that there was no evidence that the 

tractor has been or will be used in mining activities, and that at the time of citation the tractor 

was not located at any location that could be deemed part of an extraction area. 

14 While the Respondent uses the Sixth Circuit position to advance its argument, the 

Secretary uses the Commission decision to advance its argument. RB at 10-12; SB at 14. The 

Secretary argues that not only is the Sixth Circuit’s reversal of the Commission in Maxxim 

Rebuild not binding precedent in this case, which arises out of the Fourth Circuit, but that “the 

lower unanimous decision by the Commission affirming MSHA coverage is the applicable 

precedent for this case.” SRB at 2. This Court questions the Secretary’s argument that a Circuit 

Court reversal (without remand) only disturbs the Commission’s decision in the applicable 

Circuit. Nonetheless, whether the Commission’s decision still governs ultimately has little 

bearing on the instant decision. This is due to the fact that the Commission’s Maxxim Rebuild

decision does not stand alone for the proposition that off-site facilities and equipment are under 

MSHA jurisdiction. Rather, it is but one of many cases over decades of jurisprudence analyzing 

Mine Act jurisdiction. 

42 FMSHRC Page 236
road.” Otherwise, there could conceivably be no limit to MSHA jurisdiction, a 

result Congress clearly did not intend. 

117 F.3d 932, 937 (6th Cir. 1997). Similarly, Dilip K. Paul v. P.B – K.B.B., Inc., the Commission 

held that an engineering office that was responsible for designing an exploratory shaft, as well as 

providing personnel, equipment, and materials, was not a mine under the Act. 7 FMSHRC 1784 

(Nov. 21, 1985). The Commission stated that “while we have recognized that the definition of 

‘coal or other mine’ provided in section 3(h) of the Mine Act is expansive and is to be interpreted 

broadly, the inclusive nature of the Act’s coverage is not without bounds.” Id. at 1787 (citations 

omitted).15

Analyzing this jurisdictional map that arises through a review of the outer bounds of the 

Mine Act’s definition of a “mine,” the facility and equipment at issue here falls squarely within 

the definition. The off-site maintenance facility and trucks at issue here are much like the central 

supply shop at issue in Jim Walter Resources, the gas cylinders at issue in W.J. Bokus, the offsite dragline assembly site at issue in Justis Supply & Machine Shop, the off-site Screener at 

issue in State of Alaska Department of Transportation, the off-site storage facility at issue in 

Austin Powder, and other cases discussed supra. The Respondent is correct that the location of 

the trucks and the maintenance facility matter, and that the Secretary’s idea of the trucks being 

rolling mines would lead to an absurdity. 

However, in this instance, the maintenance and trucks were located four to five miles 

from Ramaco’s three deep mines and more than a mile from the Elk Creek Plant. JS ¶ 25. In Jim 

Walter Resources, the central shop was not on the property of any one of the coal extraction 

sites, but rather one mile from the closest site, six miles from two of the sites, and 25 miles from 

the farthest site. 22 FMSHRC at 22. In U.S. Steel Mining Co., the shop at issue was located 

approximately eight and a half miles from one mine, five miles from another mine, and a half 

mile from the cleaning plant. 10 FMSHRC at 147. The location of K C Transport’s maintenance 

facility is not remote from the extraction and processing sites. Indeed, its proximity leads to the 

second question concerning the maintenance facility and trucks’ functions. 

K C Transport asserted that approximately 60% of the services from the maintenance 

facility are to the five nearby Ramaco Resource mines, and the other 40% is split between other 

companies, including other coal operators. JS ¶ 15. These services include operating on-road and 

off-road trucks used in coal, gravel, and earth haulage. JS ¶ 14. The two cited trucks at issue here 

have been used at various times to haul coal from each of the Ramaco mines to the Elk Creek 

Plant. JS ¶ 27. The trucks used to haul the coal from the mine to the processing facility fit well 

within the Mine Act’s definition of equipment used in the work of preparing coal. The 

transportation of coal from those mines to that preparation plant is an integral part of the mining 

and preparation process. Furthermore, the maintenance of the trucks at the facility is essential to 

15 In MSHA v. Ammon Enterprises, ALJ Zielinski discussed in dicta the question of 

whether MSHA would have jurisdiction over trucks loading mined materials that were stockpiled 

and separated by a screen, calling it a “gray area.” 2008 WL 4190445 at Note 9 (July 10, 2008) 

(ALJ). He further stated that if the mining operations had been closed, “that the loading 

of trucks from the stockpiles would not be considered within MSHA's jurisdiction.” Id.

42 FMSHRC Page 237
the coal hauling and preparation process. This interpretation is in line with the Commission’s 

reasoning in W.J. Bokus, where the Commission found compressed gas cylinders, a stove, and a 

grinder to be equipment used in mining. 16 FMSHRC at 707-709. The Commission reasoned 

that miners worked in the garage where the gas cylinders were kept on mining-related tasks, the 

grinder had been used to maintain mining equipment, and the stove warmed the garage where the 

miners worked. Id. 

I find the possibility of the “bifurcated coverage scheme” that the Secretary warns of to 

be not quite as absurd as the Secretary states. In fact, it is already in existence many times over in 

most aspects of mining and other industries. There are various interagency agreements and 

memoranda of understanding between OSHA and MSHA precisely because jurisdiction often 

shifts between the agencies. See eg State of Alaska, Dept. of Transportation, 36 FMSHRC 2642; 

W.J. Bokus Industries, 16 FMSHRC 704. Despite the Secretary’s dire warnings of a bifurcated 

coverage scheme covering the trucks when they are on mines and/or engaged in mining-related 

activities, and when they are not on mines engaged in activity unrelated to mining, this Court is 

confident that the Department of Labor can adequately determine which agency and statute 

provides coverage.16 

Therefore, this Court finds that MSHA had jurisdiction over the trucks at issue as well as 

the maintenance facility. Accordingly, under the prior agreement of the parties, Citation No. 

9222038 is affirmed, but modified to “low” negligence with a penalty amount of $3,908.00. 

Citation No. 9222040 is affirmed, but modified to “low” negligence with a penalty amount of 

$4,343.00. 

ORDER 

It is ORDERED that Citation Nos. 9222038 and 9222040 be modified to “low” 

negligence, and the Respondent, K C Transport, Inc., is ORDERED to pay the Secretary of 

Labor the sum of $8,251.00 within 30 days of this order. 17

 /s/ John Kent Lewis 

 John Kent Lewis 

 Administrative Law Judge 

16 Judge Manning described the various statutory jurisdictions controlled by the Secretary 

of Labor thusly: “The Secretary takes what is often called a ‘nooks and crannies’ approach when 

interpreting OSHA jurisdiction. OSHA fills in the nooks and crannies that other safety statutes 

do not cover.” Cox Transportation Corp., 22 FMSHRC at 580. 

17 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390 

42 FMSHRC Page 238
Distribution: 

Robert S. Wilson, Esq., U.S. Dept. of Labor, 201 12th St. South, Suite 401, Arlington, VA 

22202-5450 

Stephen S. Adkins, CLR, MSHA, 4499 Appalachian Highway, Pineville, WV 24874 

James P. McHugh, Esq. & Christopher D. Pence, Esq., Hardy Pence PLLC, 10 Hale Street, 4th

Floor, P.O. Box 2548, Charleston, WV 25329 

42 FMSHRC Page 239
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th ST. SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

March 26, 2020 

DECISION AND ORDER 

Appearances: Sonya P. Shao, U.S. Department of Labor, Office of the Solicitor, 350 S. 

Figueroa Street, Suite 370, Los Angeles, CA 90071 

Perry P. Poff, Donell, Melgoza & Scates LLP, 3300 Sunset Boulevard, 

Suite 110, Rocklin, CA 95677 

Before: Judge Simonton 

I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration, against Bragg Crane 

Service (“Bragg” or “Respondent”), pursuant to the Federal Mine Safety and Health Act of 1977 

(Mine Act), 30 U.S.C. § 801.1 This case involves one Section 104(a) citation alleging a violation 

of 30 C.F.R. § 56.16009. The Secretary proposed a penalty of $2,615.00. The citation was 

designated as significant and substantial (S&S), highly likely to result in a fatal injury, and 

involving high negligence on the part of the Respondent. 

The parties presented testimony and documentary evidence at a hearing held in Reno, 

Nevada on October 23, 2019. MSHA Inspector Kimberly Hakala testified for the Secretary. 

Bragg mechanic/oiler Kyle McPartland, crane operator Zachary Cramer, and branch manager 

Dean Stone testified for Respondent. After fully considering the testimony and evidence 

presented at hearing and the parties’ post-hearing briefs, I modify Citation No. 9374373 as set 

forth below. I assess a penalty of $200.00.

1 In this decision, the joint stipulations, transcript, Secretary’s exhibits, and Respondent’s 

exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. S–#,” and “Ex. R–#,” respectively. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

BRAGG CRANE SERVICE, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. WEST 2019-0303 

A.C. No. 26-00803-487971 6KB

Mine: Spanish Springs Pit #6 

42 FMSHRC Page 240
II. STIPULATIONS OF FACT

At hearing, the parties agreed to the following stipulations of fact included in their prehearing 

submissions: 

1. Respondent was at all times relevant to this matter an independent contractor performing

services or construction at Spanish Springs Pit #6.

2. The subject mine is a “mine” as that term is defined in Section 3(h) of the Mine Act, 30

U.S.C. § 802(h).

3. At all times relevant to this case, the products of the subject mine entered commerce, or

the operations or products thereof affected commerce, within the meaning and scope of

Section 4 of the Mine Act, 30 U.S.C. § 803.

4. Bragg Crane Service is subject to the jurisdiction of the Mine Act, 30 U.S.C. § 801, et

seq.

5. These proceedings are subject to the jurisdiction of the Federal Mine Safety and Health

Review Commission and its designated Administrative Law Judges pursuant to Sections

105 and 113 of the Mine Act, 30 U.S.C. §§ 815, 823.

6. 30 C.F.R. § 56.16009 is a mandatory health or safety standard as that term is defined in

Section 3(1) of the Mine Act, 30 U.S.C. § 802(1).

7. The citation contained in Exhibit A attached to the Petition for Assessment of a Penalty

for this docket is an authentic copy of the citation at issue in this proceeding.

8. The individual whose name appears in Block 22 of the citation at issue in these

proceedings was acting in her official capacity as an authorized representative of the

Secretary when the citation was issued.

9. The exhibits offered by the parties are authentic, but no stipulation was made as to their

relevance or the truth of the matters asserted therein.

Joint Prehearing Statement at 3; See Tr. 7.

42 FMSHRC Page 241
III. SUMMARY OF TESTIMONY 

a. The Secretary 

MSHA Inspector Kimberly Hakala2 testified for the Secretary. She stated that on 

December 10, 2018, she went to Spanish Springs Pit #6 to conduct a regular inspection. Tr. 14. 

Once she arrived, she learned that Bragg was on site that day to pick a hopper away from the 

primary plant. Tr. 15. She testified that Martin Marietta’s plant manager, Abram Woodward, 

accompanied her while she observed the pick, and that he took photos. Tr. 17. 

The hopper was lifted off of the plant, rotated, and placed on the ground. Tr. 18, 21, 24, 

64–65. Hakala witnessed the entire job from an elevated catwalk, approximately 60–80 feet 

away from where the load was ultimately placed. Tr. 44–45, 69–70; see Tr. 17; Ex. S–7, p. 2. 

Hakala testified that two tag lines were attached to the load, and that one of the lines was initially 

held by a man on an elevated catwalk. Tr. 19, see Ex. S–7, p. 2. She stated that the man moved 

along the catwalk while holding the tag line and then threw the tag line to the ground to be 

retrieved by another miner. Tr. 19. Then, according to Hakala, a Bragg employee and a Martin 

Marietta employee who were both on the ground “moved in”—the Martin Marietta miner to 

retrieve the tag line and the Bragg miner to observe where the hopper was in relation to the plant 

structure. Tr. 19–20. 

Hakala testified that when the two miners moved in towards the tag line, the hopper was 

positioned directly above them. Tr. 20. She issued a verbal imminent danger order3

 to Woodward 

based on her observation that the miners were standing beneath the load and were in danger of 

being struck by it. Tr. 21. Hakala stated that Woodward shouted down to the miners, they moved 

out from under the load, and “within moments both of them came back in.” Tr. 22–23. After 

Hakala told Woodward again to remove the miners from the area, he shouted to them a second 

time and they thereafter stayed out from underneath the suspended load. Tr. 23. Hakala 

explained that she believed the miners went back in the second time in order to retrieve the tag 

line again, since they had dropped it the first time they were told to move away from the load. Tr. 

23. 

Hakala further testified that after the hopper was placed on the ground, she and 

Woodward made their way down to the ground level to have a safety briefing with the miners, 

where she explained why she issued the imminent danger order. Tr. 24, 53. She stated at hearing 

that McPartland, the Bragg employee on the ground during the pick who identified himself as the 

“leadman,” told her during this safety briefing that he was not directly under the load but was 

two feet to the side of it, within the “fall zone” of the hopper. Tr. 24–26, 56. 

 

2

 Kimberly Hakala has been an MSHA inspector for nearly eight years. Tr. 12. She 

previously worked for approximately 10 years in various roles at her family’s gypsum limestone 

operation. Tr. 13. 

3

 This 107(a) order, Order No. 9374371, was issued to Martin Marietta, not Bragg Crane 

Service. It was withdrawn by the Secretary at hearing. 

42 FMSHRC Page 242
b. The Respondent

Bragg mechanic/oiler Kyle McPartland,4

 crane operator Zachary Cramer,5 and branch 

manager Dean Stone6 testified for Respondent. McPartland was the signalman for this job, and 

asserted at hearing that he has no supervisory responsibility in his position. Tr. 96, 114. He 

testified that after the Bragg employees arrived at the mine site on December 10, 2018, they 

received site-specific training and were then escorted to where the hopper was located to set up 

the crane and had a safety meeting with the Martin Marietta employees involved in the job. Tr. 

99–100. McPartland said that the dimensions of the fall zone—the area where the hopper might 

end up in the event it fell or tipped over—were not discussed in exact terms. Tr. 133. Once the 

rigging was set up and the miners were getting ready to pick the hopper, Inspector Hakala 

arrived and asked a few questions. Tr. 102. 

McPartland stated that the lift began upon his signal, while he was located on an elevated 

catwalk observing the boom angle of the crane. Tr. 105–06. He and one Martin Marietta miner 

then went down to the ground level to observe the hopper’s location as it was moving into place. 

Tr. 107–08; see Ex. S–7, p. 2. By his estimate, Hakala was 80 to 90 feet away from him at this 

point in the pick. Tr. 108. 

According to McPartland, the tag line held by the miner who stayed up on the catwalk 

was never dropped. Tr. 109. McPartland stated that the miner was preparing to throw the line 

down to the Martin Marietta miner on the ground right before Woodward yelled at him not to 

throw it. Tr. 109. The load was brought in closer and rotated accordingly—without either tag line 

ever being dropped—and then lowered onto the ground. Tr. 108–09, 140–41. 

McPartland testified that Hakala talked to him individually once the load was on the 

ground. Tr. 115. According to him, she never questioned him about how close he was to the load 

or whether he would have been struck by the load if it fell. Tr. 115. McPartland stated that he 

remembered his conversation with Hakala to be limited to questions about his name and his role 

in the company and about her opinion that more tag lines should have been used. Tr. 116. 

McPartland asserted that he moved away as the hopper was moving closer to him, and 

that no miner ever entered an area where he would have been struck by the load. Tr. 116, 149. 

He stated that the closest he was to the load as it was lowered was 10 feet away. Tr. 117. 

4

 Kyle McPartland has worked for Bragg as a mechanic/oiler for 11 years. Tr. 95–96. 

5

 Zachary Cramer has worked as a crane operator for Bragg since January 2016 and has 

been a crane operator since August 2015. Tr. 156–58. Prior to becoming a crane operator, he 

worked as a certified rigger and signalman for three years. Tr. 160. 

6

 Dean Stone worked for Bragg Crane from 1977 to 1995 as a crane operator. Tr. 202. 

After a hiatus from the industry, he returned to Bragg in 2009 and has been a branch manager 

since. Tr. 203. 

42 FMSHRC Page 243
Zachary Cramer operated the crane during the inspection at issue. According to Cramer, 

it was Martin Marietta—not Bragg—that decided to use two tag lines to control the load. Tr. 

164–65. He testified that at one point, he heard someone yell “stop, don’t throw the tag line 

down” as the Martin Marietta crew member on the catwalk holding the tag line was coiling up 

the line and apparently preparing to throw it down. Tr. 170. He stated that the miner never threw 

the line down and held onto it until the hopper was on the ground. Tr. 170. 

Cramer testified that a fall zone of 10 feet was identified prior to the pick, and that 

everyone involved in the job was told to stay 10 feet clear of the hopper. Tr. 173–74. He stated 

that he never saw anyone enter the fall zone, and that no one was ever in danger of being crushed 

by the hopper. Tr. 168, 172. He said that if he had seen someone in the fall zone, he would have 

stopped operation of the crane immediately. Tr. 168. Cramer also testified that though he heard 

Inspector Hakala was on site that day, he never saw or spoke to her. Tr. 163. 

IV. PARTY ARGUMENTS 

a. Secretary’s Argument 

The Secretary argues that Respondent violated 30 C.F.R. § 56.16009 when employee 

Kyle McPartland failed to stay clear of a suspended load. Secretary’s Post-Hearing Brief (Sec’y 

Br.) at 6–7. The Secretary alleges that the miner on the catwalk behind the hopper threw the tag 

line he was holding down to the Martin Marietta maintenance worker on the ground. Id. at 3. 

Following this, the Martin Marietta miner moved in to retrieve the tag line, and McPartland 

moved in to observe the hopper. Id.; Tr. 19, 46. Inspector Hakala observed the miners directly 

under the suspended load, and issued a verbal imminent danger order to plant manager Abram 

Woodward, who shouted down to the miners to get out from under the load. Tr. 20–21; Sec’y Br. 

at 3. The Secretary argues that both miners then went back into the fall zone and Hakala issued a 

second verbal order for them to move out from under the load. Id. After the second warning, they 

stayed out from under the load. Sec’y Br. at 3; Tr. 22–23. 

The Secretary argues that Hakala then came down to the ground level and spoke with the 

miners as a group. Tr. 60–61; Sec’y Br. at 3–4. During that discussion, McPartland admitted to 

being two feet to the side of the hopper’s vertical fall line. Tr. 24; Sec’y Br. at 4. The Secretary 

contends that the violation should remain designated as high negligence and that any injury 

resulting from the violation would be fatal. Sec’y Br. at 7–8. 

a. Respondent’s Argument 

Respondent contends that the citation should be vacated because miners were neither 

directly under the load nor in the load’s fall zone at any time during the pick. Respondent’s PostHearing Brief (Resp. Br.) at 13. Respondent alleges that the miners involved in the pick 

operation stayed a safe distance from the hopper and moved away as the load moved. Id. at 13; 

Tr. 168–69. If anyone had gone under the load or into the fall zone, McPartland or Cramer would 

have stopped work. Resp. Br. at 12, 13; Tr. 117, 168. 

42 FMSHRC Page 244
Alternatively, Respondent argues that if a violation occurred, “there was no reasonable 

likelihood that the crane’s rigging would fail, or that any employee was otherwise in jeopardy of 

being injured by the load.” Id. at 14. Respondent therefore asserts that there was no likelihood of 

injury and no negligence. Id. at 15. 

V. DISPOSITION 

a. Fact of Violation 

Inspector Hakala alleged in Citation No. 9374373 that Respondent violated 30 C.F.R. § 

56.16009: 

Two miners were observed under an approximate 40,000 pound suspended load 

while attempting to remove the hopper from the Primary Plant. One miner was 

directing the load and the other miner was trying to grab the suspension line from 

a third miner who was above the load. The hopper was suspended approximately 

20–25 feet above the miners. This condition exposes miners to fatal type injuries 

in the event of an accident. A verbal imminent danger order was issued to the 

mine's Plant Manager. Order # 9374371 was issued in conjunction with this 

citation and citation #9374372. 

Ex. S–3. 

The standard provides that “[p]ersons shall stay clear of suspended loads.” 30 C.F.R. § 

56.16009. Hakala determined that the violation was highly likely to result in injury, that the 

injury could reasonably be expected to be fatal, and that the violation was significant and 

substantial (S&S) and affected two people. Ex. S–3. She determined the violation was the result 

of high negligence. Id. 

It is undisputed that § 56.16009 requires miners to not only stay out from directly under 

suspended loads, but to also stay clear of the area that could be affected if a load were to fall. 

Sec’y Br. at 6; Resp. Br. at 10–12; see Anaconda Co., 3 FMSHRC 299, 301 (Feb. 1981) 

(considering substantively identical rule later recodified at § 56.16009 per Recodification of 

Safety and Health Standards for Metal and Nonmetal Mines, 50 Fed. Reg. 4048-01 (Jan. 29, 

1985)). The regulation aims “to prevent persons from being hit by such loads through barring 

persons from locating within a hanging load’s possible arc or radius.” Haines & Kibblehouse, 

Inc., 30 FMSHRC 504, 517 (June 2008) (ALJ). 

42 FMSHRC Page 245
The Commission has long held that “[i]n an enforcement action before the Commission, 

the Secretary bears the burden of proving any alleged violation.” Jim Walter Res., Inc., 9 

FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 1992). The 

Commission has described the Secretary’s burden as: 

The burden of showing something by a “preponderance of the evidence,” the most 

common standard in the civil law, simply requires the trier of fact “to believe that 

the existence of a fact is more probable than its nonexistence.” 

RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas 

Co., 11 FMSHRC 2148, 2152 (Nov. 1989). For the reasons that follow, I find that the Secretary 

has presented sufficient evidence to show that McPartland went into the fall zone in violation of 

§ 56.16009. However, I find that he did not go directly under the suspended load.

During this inspection, Bragg’s crane lifted a 40,000 pound hopper from Martin 

Marietta’s primary plant and lowered it onto the ground as depicted in Exhibit 7, page 3. While 

observing the job, Hakala stood on an elevated catwalk near where the hopper was located before 

it was lifted off of the plant. Tr. 43; Ex. S–7, p. 2, 3. Consequently, the load moved away from 

her as it was lowered onto the ground. By both Hakala’s and McPartland’s estimates, Hakala was 

approximately 80 feet away from the miners when she allegedly observed them walk into the fall 

zone of the suspended load. Tr. 44, 108. Therefore, in addition to her less-than-ideal vantage 

point, she was a significant distance from the miners on the ground. 

At hearing, Hakala testified numerous times that the miners appeared to go directly under 

the suspended hopper. Tr. 20, 21, 47, 69. However, she was inconsistent when asked about 

particular details of the violation. When asked during cross-examination whether McPartland 

was in any danger at the time the critical photo in Exhibit 7, page 2 was taken, she said that “it’s 

possible if this thing were to tip that he would be really close to that fall zone where he’s at right 

now.” Tr. 45–46 (emphasis added). When later questioned by the court about the same photo, 

Hakala said that the entire area inside of the pictured yellow bollards—within which McPartland 

is standing in the photo—was within the fall zone of the hopper with the hopper in its 

photographed location. Tr. 85–86. On re-cross, Hakala was again asked if anyone was in the fall 

zone at the time the photo was taken. Tr. 91. She responded that “he’s in a position where he 

could be as it continues to move.” Tr. 92 (emphasis added). It is unclear whether Hakala believed 

McPartland was really close to the fall zone, definitely in the fall zone, or possibly in the fall 

zone at the time the photo was taken. Moreover, she evaded and ultimately failed to answer 

Respondent’s question about how high the load was at the precise time the violation occurred, 

instead only repeating her estimation of the height of the load at the beginning of the pick. Tr. 

81–82. 

Given the above inconsistencies in Hakala’s testimony and her sub-optimal viewpoint 

during the inspection, I find that the Secretary has failed to show by a preponderance of the 

evidence that McPartland was ever directly under the suspended load. 

Crucially, the Secretary failed both at hearing and in his post-hearing brief to articulate 

the specific parameters of the fall zone in this case. I ascertain nevertheless that the fall zone of 

42 FMSHRC Page 246
the suspended hopper was 10 feet around the load, particularly because Cramer, Bragg’s crane 

operator, testified that “a fall zone was identified” and that people were told to stay 10 feet clear 

of the load. Tr. 174. 

In its correspondence to MSHA four days after the inspection, Bragg stated that “no 

employee was ever less than 6 to 10 feet from the vertical fall line of the suspended hopper.” 

Ex. R–A, p. 1 (emphasis added). However, according to Hakala’s notes, written as she 

interviewed the miners following the pick, McPartland asserted that the miners were never 

directly under the load but were approximately two feet from the vertical fall line. Ex. S–4, p. 1; 

Tr. 26–28. Though the exact distance between McPartland and the vertical fall line at the 

moment of violation may be indeterminate, I find that sufficient evidence supports the finding 

that he violated 30 C.F.R. § 56.16009 by entering the established fall zone of 10 feet. 

Accordingly, the fact of violation is affirmed. 

b. Gravity

A violation is significant and substantial (S&S), “if based upon the particular facts 

surrounding the violation there exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In order to uphold a citation as S&S, the Commission has held that the Secretary of Labor 

must prove: 1) the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 

1, 3–4 (Jan. 1984). 

The Commission has held that the second element of the Mathies test addresses the extent 

to which a violation contributes to a particular hazard. Newtown Energy, Inc., 38 FMSHRC 

2033, 2037 (Aug. 2016). Analysis under the second step should thus include the identification of 

the hazard created by the violation and a determination of the likelihood of the occurrence of the 

hazard that the cited standard is intended to prevent. Id. at 2038. At the third step, the Secretary 

must prove there was a reasonable likelihood that the hazard contributed to by the violation will 

cause an injury, not a reasonable likelihood that the violation, itself, will cause injury. West 

Ridge Resources, Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser Eng'g, Inc., 32 

FMSHRC 1257, 1280–81 (Oct. 2010. Evaluation of the four factors is made assuming continued 

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

Hakala explained at hearing that she designated this citation as S&S because “it was 

reasonable to believe that there was an injury of a fatal type that would occur.” Tr. 36. She 

testified that she designated the citation as highly likely because “it was highly likely that they 

could be crushed by this load should it fall.” Tr. 34 (emphasis added). 

42 FMSHRC Page 247
I have already determined that Bragg violated § 56.16009, a mandatory safety standard, 

because McPartland entered the fall zone of the suspended hopper. The safety hazard posed by 

the violation is that the suspended load could injure a miner on the ground if it were to fall. I 

find, however, that it is unlikely this hazard would occur. Though an injury would be of a fatal 

nature if the load were to fall, Hakala’s determination that such an event was highly likely is 

incorrect. Bragg prepared carefully and took the precautions necessary to ensure that the hopper 

would be lifted and relocated without incident. See Tr.120–28; see also Ex. R–A. The load was 

unlikely to fall. 

Worth noting here, mine operator Martin Marietta Materials, Inc. was issued a nearly 

identical citation for this violation. The citation was settled in Docket No. WEST 2019-0228. In 

his settlement motion in that case, the Secretary stated that “[p]ersons were clear of (not under) 

the load.” Mot. For Settlement at 3, Martin Marietta Materials Inc., WEST 2019-0228. The 

Secretary requested that the court modify the gravity designations to reflect that injury was 

unlikely and that the violation was not S&S. The court accepted the Secretary’s explanations for 

the modifications and approved the settlement. Decision Approving Settlement, Martin Marietta 

Materials Inc., WEST 2019-0228. Because the representations made in that related operator case 

differ from the Secretary’s position in the present case, the Court instructed the parties to address 

whether the doctrine of judicial estoppel affects this proceeding.7

 Unpublished Order dated Nov. 

12, 2019. After briefing the issue of judicial estoppel, the Secretary affirmatively chose not to 

brief how this violation was S&S or highly likely to result in a fatality. Sec’y Br. at 5–6. Without 

invoking judicial estoppel, I find that the settlement reached in WEST 2019-0228 nevertheless 

lends notable support to the notion that this violation was unlikely to result in injury and was not 

S&S. 

Because injury was unlikely, the third factor of the Mathies test is not met. I find that the 

this violation was unlikely to result in injury, that the injury could reasonably be expected to be 

fatal, that two people were affected, and that the violation was not S&S. 

c. Negligence

Under the Mine Act, operators are held to a high standard of care, and “must be on the 

alert for conditions and practices in the mine that affect the safety or health of miners and to take 

steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d). 

MSHA’s regulations define reckless disregard as conduct which exhibits the absence of the 

slightest degree of care, high negligence as actual or constructive knowledge of the violative 

condition without mitigating circumstances; moderate negligence as actual or constructive 

knowledge of the violative condition with mitigating circumstances; and low negligence as 

actual or constructive knowledge of the violative condition with considerable mitigating 

circumstances. 30 C.F.R. § 100.3: Table X. 

7

 Discussed by the Supreme Court in New Hampshire v. Maine, the doctrine of judicial 

estoppel prevents parties from taking a certain position in a legal proceeding and then assuming a 

contrary position in a later proceeding. 532 U.S. 742, 749–50 (2001). Because the respondents 

are different in these cases, I will not invoke the doctrine. However, I have taken judicial notice 

of the representations made and settlement reached in the corresponding operator case. 

42 FMSHRC Page 248
Inspector Hakala designated the citation as high negligence, explaining at hearing that 

McPartland, as the “individual in charge, had direct knowledge and he was involved in the 

imminent danger and the violation itself.” Tr. 35. I find that the Secretary failed to credibly 

establish that McPartland was in charge. McPartland credibly testified that he did not have any 

supervisory responsibility. Tr. 96. 

I find that Bragg’s negligence is low. McPartland should not have entered the fall zone, 

but based on the testimony and evidence presented in this case, it is clear to me that to the extent 

he entered the fall zone, his presence there was momentary. Furthermore, Bragg took 

comprehensive safety precautions ahead of and during the pick. For instance, the miners 

involved in the job all took part in a safety meeting prior to the pick. Tr. 100–01. In its 

configuration that day, the crane was authorized to lift a load much heavier than the hopper. Ex. 

R–A, p. 7, see Resp. Br. at 6–7. The rigging utilized was also rated for far more weight than was 

being lifted. Resp. Br. at 7. 

Given the considerable mitigating circumstances, I reduce Bragg’s negligence from high 

to low. 

VI. PENALTY

It is well established that Commission administrative law judges have the authority to 

assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5 

FMSHRC 287, 291 (Mar. 1983). The Act requires that in assessing civil monetary penalties, the 

Commission ALJ shall consider the six statutory penalty criteria: 

(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 person charged in attempting to achieve rapid compliance after notification of

a violation.

30 U.S.C. § 820(i). 

42 FMSHRC Page 249
The Secretary proposed a regularly assessed penalty of $2,615.00. Bragg has no 

history of previous violations. Bragg did not present evidence regarding its size or argue 

that the size of the penalty was disproportionate. Further, Bragg did not contend at 

hearing or in its submissions in this case that the penalty amount would affect the 

company’s ability to continue in business. As discussed in greater detail above, I find this 

violation to be non-S&S and unlikely to result in a fatal injury. I reduce Bragg’s 

negligence from high to low in light of the significant mitigating circumstances. No 

evidence was presented on good faith in compliance. In light of these considerations, I 

assess a penalty of $200.00. 

VII. ORDER

Respondent is hereby ORDERED to pay the Secretary of Labor the total sum of 

$200.00 within 30 days of this order.8

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (Email9) 

Sonya P. Shao, U.S. Department of Labor, Office of the Solicitor, shao.sonya.p@dol.gov 

Perry P. Poff, Donell, Melgoza & Scates LLP, perry@oshalaw.net 

8

 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

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

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

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

9

 For the foreseeable future, Federal Mine Safety and Health Review Commission 

(FMSHRC) notices, decisions, and orders will be sent only through electronic mail. Because 

FMSHRC will not be monitoring incoming physical mail or faxes, parties are encouraged to 

submit all filings through the agency’s electronic filing system. If you are not able to file through 

our electronic filing system, please send an email copy and we will file it for you. 

42 FMSHRC Page 250
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9954 

March 27, 2020 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. PENN 2018-0243 

Petitioner A.C. No. 36-07230-467980

v. Docket No. PENN 2018-0255 

A.C. No. 36-07230-470217

CONSOL PENNSYLVANIA COAL CO., 

LLC,

Respondent Bailey Mine

DECISION 

Appearances: Matthew R. Epstein, Esq., Office of the Solicitor, U.S. Department of 

Labor, Philadelphia, Pennsylvania, for Petitioner; 

James McHugh, Esq., Hardy Pence PLLC, Charleston, West Virginia, for 

Respondent. 

Before: Judge Bulluck 

These cases are before me upon Petitions for Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”), on behalf of the Mine Safety and Health Administration 

(“MSHA”), against Consol Pennsylvania Coal Company, LLC (“Consol”), pursuant to section 

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

The Secretary seeks a total penalty of $11,067.00 for ten violations of his mandatory safety 

standards.1

A hearing was held in Pittsburgh, Pennsylvania. The following issues are before me: (1) 

whether the violations were attributable to the level of gravity alleged; (2) whether the violations 

were attributable to the degree of negligence alleged; and (3) the appropriate penalty. The 

parties’ Post-hearing Briefs and Consol’s Reply Brief are of record. 

For the reasons set forth below, I AFFIRM two citations, as issued, and three citations, 

as modified; and assess penalties against Respondent.

1

 The parties reached a settlement on five of the ten contested citations. The total civil 

penalty proposed for the remaining five citations adjudicated in this proceeding is $7,409.00. 

42 FMSHRC Page 251
I. Joint Stipulations 

 The parties have stipulated as follows: 

1. Respondent is an operator, as defined in section 3(d) of the Mine Act, at the mine where 

the citations were issued. 

2. Bailey Mine is a mine, as defined in section 3(h) of the Mine Act. 

3. The operations of Respondent at Bailey Mine are subject to the jurisdiction of the Mine 

Act. 

4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission and its designated Administrative Law Judge, pursuant to Mine Act 

sections 105 and 113. 

5. Bailey Mine is owned by Respondent. 

6. Payment of the proposed penalties will not affect Respondent’s ability to remain in 

business. 

7. The individual whose name appears in Block 22 of each citation in contest was acting in 

an official capacity and as an authorized representative of the Secretary of Labor when 

the citations were issued. 

8. The citations were properly issued and served by a duly authorized representative of the 

Secretary upon an agent of Respondent at the date, time, and place stated in each citation, 

as required by the Act. 

9. Exhibit A to each of the above-captioned dockets contains authentic copies of the 

citations at issue. 

10. Respondent stipulates to the authenticity and admissibility of the R–17 certified mine 

history forms (P–9). 

Tr. 14-16. 

II. Factual Background 

Consol owns and operates the Bailey Mine, an underground coal mine in Wind Ridge, 

Greene County, Pennsylvania. On May 17, 2018, Walter Young, an MSHA inspector and 

ventilation specialist, conducted an E02 methane spot inspection of the mine, accompanied by 

his supervisor Jeremy Williams, Consol respirable dust coordinator John Opfar, and Consol 

safety inspector Cody Rogers. Tr. 270-72. Young cited Consol for two worn high pressure 

shield hoses on the 6-J longwall working section; and wet accumulations of combustible 

materials at the 6-J working section conveyor belt storage unit. Exs. P–5, P–6. 

42 FMSHRC Page 252
On June 28, 2018, Inspectors Young and Williams returned to the mine for another 

methane spot inspection, accompanied by Consol safety inspectors James Jones and Matt 

Cunningham. Tr. 58-60. Young observed several conditions for which he cited Consol: an 

inadequately ventilated charging battery in the No. 3 crosscut, between the No. 3 belt and No. 2 

track entries; an energized ISE box on the pump car in the No. 2 track entry with the outby door 

ajar and disconnected external control levers; and an unsupported area of mine roof between the 

last longwall shield and the 5-L tailgate travelway. Exs. P–2, P–3, P–4. 

III. Findings of Fact and Conclusions of Law

1. Citation No. 9077362

A. Fact of Violation

Inspector Young issued 104(a) Citation No. 9077362 on May 17, 2018, alleging an 

“S&S” violation of section 75.1725(a) that was “reasonably likely” to cause an injury that could 

reasonably be expected to result in “lost workdays or restricted duty,” and was caused by 

Consol’s “moderate” negligence.2

 The “Condition or Practice” is described as follows: 

The Mine Operator failed to maintain the high pressure shield to 

shield hoses on the 6-J Longwall Working Section (039-0 MMU), 

inby the number 10.5 crosscut in safe operating condition at the 

following locations: 

1. Between the numbers 62 and 63 shields. The outer jacket of the

hose was worn off for an area measuring 2 inches long by 3 inches

wide exposing the inner wire braiding to damage. The inner

braiding was rusted and deteriorating from oxidation and rubbing

on the pontoons of the shields when they were advanced.

2. Between the numbers 64 and 65 shields. The outer jacket of the

hose was worn off for an area measuring 24 inches long by 3

inches wide exposing the inner wire braiding to damage. Broken

strands were present. The inner braiding was rusted and

deteriorating from oxidation and rubbing on the pontoons of the

shields when they were advanced. The Operator immediately

removed the shields from service until the condition could be

corrected. Both outer protective hose sleeves were damaged at the

cited locations.

2

 30 C.F.R. § 75.1725(a) provides that “[m]obile 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.”

42 FMSHRC Page 253
Standard 75.1725(a) was cited 16 times in two years at mine 

3607230 (16 to the operator, 0 to a contractor). 

Ex. P–5. The citation was terminated on May 17, when both damaged high pressure hoses were 

replaced. Ex. P–5. Consol has conceded the violation, but contests the S&S designation and the 

degree of negligence ascribed to the violation. Resp’t Br. at 18. 

B. Gravity 

In Mathies Coal Co., the Commission set forth four criteria that the Secretary must 

establish in order to prove that a violation is S&S under National Gypsum: 1) the underlying 

violation of a mandatory safety standard; 2) a discrete safety hazard - - that is, a measure of 

danger to safety - - contributed to by the violation; 3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and 4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, 

Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 

F.2d 99, 103-04 (5th Cir. 1988) (approving Mathies criteria), aff’g 9 FMSHRC 2015, 2021 (Dec. 

1987). Resolution of whether a violation is S&S must be based “on the particular facts 

surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988); Youghiogheny 

& Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987). 

The Commission has explained that the second Mathies criterion requires the judge to 

define the hazard to which the violation contributes, and then determine “whether, based upon 

the particular facts surrounding the violation, there exists a reasonable likelihood of the 

occurrence of the hazard against which the mandatory safety standard is directed.” Newtown 

Energy, Inc., 38 FMSHRC 2033, 2038 (Aug. 2016); see ICG Illinois, LLC, 38 FMSHRC 2473, 

2475-76 (Oct. 2016). When evaluating the third Mathies criterion, the judge is to assume that 

the hazard identified in step two has been realized, and then consider whether the hazard would 

be reasonably likely to result in injury in the context of “continued normal mining operations.” 

Newtown Energy, 38 FMSHRC at 2045 (citing Knox Creek Coal Corp., 811 F.3d 148, 161-62 

(4th Cir. 2016); Peabody Midwest Mining, LLC, 762 F.3d 611, 616 (7th Cir. 2014); Buck Creek, 

52 F.3d at 135)); U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The Secretary 

need not prove a reasonable likelihood that the violation, itself, will cause injury. Musser Eng’g, 

Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). 

The Secretary maintains that the violation was S&S because the damaged hoses created a 

risk of highly pressurized fluid leaks and, because the hoses were facing the pan line, they “could 

break loose entirely and whip through the air” in an area where miners travel. Sec’y Br. at 6-7. 

Additionally, the Secretary argues that the pressure tests on the damaged hoses offered by 

Consol should be discounted because they do not account for continued degradation and repeated 

pressurization during the normal course of mining. Sec’y Br. at 5-7. Consol makes the counter 

argument that despite the damage, the pressure testing performed at Fairmont Supply Company 

(“Fairmont”) demonstrated that the hoses could withstand pressure far exceeding that to which 

they were subjected during normal mining. Resp’t Br. at 18-21. Consol also contends that if one 

or both hoses were to fail, it would be highly unlikely for a miner to be in close proximity to 

42 FMSHRC Page 254
either because of Consol’s automated system for moving the longwall shields. Resp’t Br. at 19-

20. 

Inspector Young testified that he identified damaged high pressure hoses between the 

numbers 62 and 63, and 64 and 65 shields, with braiding visible through the outer jackets and 

oxidation on the exposed steel braiding. Tr. 273, 289, 299-300, 334. Young explained that the 

hoses use hydraulic fluid to pressurize the shield system, and that the cited hoses carry 2,500 psi 

of static pressure and approximately 5,000 psi of operating pressure when the shields are 

advancing. Tr. 274-75, 293, 304. He noted that there was slack in the hoses, which caused 

rubbing on the longwall pontoons. Tr. 292-93, 307. He testified that high pressure leaks at 

4,000 psi can pierce human flesh and that if a “hose blows off” and swings, it could kill miners 

traveling or working along the pan line. Tr. 299. Young explained that the longwall shields are 

moved manually when there are bad roof conditions, and that miners can override the computer 

program ensuring that they are two shields away from an advancing shield. Tr. 310-14, 321-323. 

Additionally, Young acknowledged that, under some circumstances, oxidation can occur quickly, 

that it usually turns steel a dark color, and that the outer jacket of the cited hoses is black. 

Tr. 309, 334, 340. Finally, he stated that the only way to determine the extent of damage to a 

hose is to send it out for testing, and that MSHA did not test the cited hoses. Tr. 308, 334. 

Consol respirable dust coordinator John Opfar explained that the longwall operation is 

supported by over 200 shields, each equipped with three hoses. Tr. 545-46, 591. He testified 

that, typically, the longwall shields are advanced automatically, and that they only begin to 

advance once the shearer has passed and is approximately 10 shields further along the working 

face. Tr. 588-90. Additionally, he explained that when conditions require that shields be moved 

manually, miners can only advance a shield using a computer program that operates two shields 

away from the advancing shield; this keeps miners approximately 11 feet from the advancing 

shield and the highly pressurized hoses. Tr. 588-90. Opfar acknowledged that when the 

longwall shields advance, the hoses can pull and rub, and he identified the location of the 

deterioration as facing the shields. Tr. 587. 

Consol conference officer Robert Gross testified that the cited hoses carried 

approximately 5,000 psi when pressurized to advance the longwall shields. Tr. 625, 642, 654, 

666. He stated that Consol had the hoses proof and burst pressure tested at Fairmont’s facility.3

Tr. 633, 644-45. He also stated that both hoses passed the proof pressure test, that neither hose

burst, and that the burst test established that one could withstand 19,000 psi without leakage,

while the other began to leak at 17,000 psi. Tr. 645-47, 652-55. Finally, Gross explained that,

despite the damage to the outer jackets, both hoses had internal layers of intact braiding.

Tr. 649-50.

Todd Clyde, the distribution center manager at Fairmont, testified that the company 

assembled and sold the cited hoses to Consol. Tr. 672-73, 685. He also stated that Consol had 

3

 Gross and Fairmont employee Todd Clyde explained that the proof pressure testing 

procedure doubles the maximum pressure determined by the manufacturer for 30 seconds to 

ensure that hoses are in safe operating condition; burst pressure testing pressurizes hoses to four 

times the pressure that they would undergo during normal mining conditions. Tr. 643, 674. 

42 FMSHRC Page 255
the hoses tested at Fairmont, and that the testing methods at its facility are accepted by hose 

manufacturers. Tr. 672, 682. 

The fact of violation has been conceded. Regarding the second Mathies criterion, 

continued operation of the damaged hoses contributed to their failure, i.e., highly pressurized 

fluid leakage and uncontrollable detachment from the shields. 

The Secretary seeks to discredit Consol’s pressure testing, contending that it does not 

take into account wear and tear from continued friction and pressure changes occurring during 

the normal course of mining. Sec’y Br. at 6-7. The Commission has explained that, in 

evaluating the contribution of a violation to the cause and effect of a hazard, “it is assumed that 

normal mining operations will continue.” Mach Mining, LLC, 40 FMSHRC 1, 4 (Jan. 2018) 

(citing U.S. Steel, 6 FMSHRC at 1574-75); see also U.S. Steel Mining Co., 7 FMSHRC 1125, 

1130 (Aug. 1985). Accordingly, continued stress on the hoses and highly pressurized fluid 

leakage must be considered when evaluating the risk of hose failure, alongside evidence of their 

condition at the time that they were cited by Young. While the record establishes that many 

layers of braiding remained intact and that the hoses could withstand pressure far greater than 

that utilized to move the shields, continued operations subjected them to rubbing the pontoons as 

the longwall advanced. While the test results indicated the unlikelihood of the hoses failing at 

the time that Young observed the damage, given the extent of exposed braiding and oxidation, 

along with wear and tear in the context of continued mining, I find it reasonably likely that these 

hoses would fail. Accordingly, the second step of Mathies is met. 

Regarding the third step of Mathies, Consol argues that miners would not have been 

exposed to the hazard arising from the damaged hoses. The record indicates that shield hoses are 

only pressurized to 5,000 psi when the longwall advances and, under normal circumstances, 

automated longwall advances do not require miners to be located in the immediate area. 

However, under adverse roof conditions, when Consol elects to advance the longwall manually, 

it utilizes a computer program that precludes advancement unless miners are 11 feet away from 

the pressurized hoses that are advancing the shield. Other than the Secretary’s bare contention 

that miners can override the manual system, the Secretary does not rebut or reckon with this 

evidence in any meaningful way. Moreover, the Secretary has not identified any scenario in 

which a miner would be exposed to the hazard created by the failed highly pressurized hoses. 

Accordingly, the Secretary has failed to establish a reasonable likelihood of injury and, therefore, 

this violation was not S&S.4

 

4

 The Secretary’s cite to Mountain Coal, in support of his contention that the violation 

was reasonably likely to result in an injury, cuts the other way. See Sec’y Br. at 5-7 (citing 

Mountain Coal Co., LLC, 31 FMSHRC 1220, 1238 (Oct. 2009) (ALJ) (the judge’s non-S&S 

finding was based, in part, on the cited hoses being located behind the shields where miners did 

not regularly travel)). Similarly, the non-S&S finding in this matter is premised upon the 

Secretary’s failure to place miners in close proximity to the pressurized hoses under either 

computer program, automated or manual. 

42 FMSHRC Page 256
C. Negligence 

The Secretary contends that Consol was moderately negligent in committing the 

violation. Sec’y Br. at 7. Consol argues that its negligence should be low because there were 

hundreds of hoses used to operate the longwall, and the condition was difficult to identify. 

Resp’t Br. at 21. The evidence establishes that the damage was on the non-visible back side of 

the hoses facing the shields, and that the oxidation on the inner steel braiding and the hoses’ 

outer jackets were similar in color; therefore, their cited condition was not readily observable 

from the travelway. Additionally, only two out of approximately 600 hoses were cited. Finally, 

the Secretary did not establish how long the condition had existed. I find these factors mitigating 

and, accordingly, that Consol’s negligence was low in violating this standard. 

2. Citation No. 9077364 

A. Fact of Violation 

Inspector Young issued 104(a) Citation No. 9077364 on May 17, 2018, alleging an 

“S&S” violation of section 75.400 that was “reasonably likely” to cause an injury that could 

reasonably be expected to result in “lost workdays or restricted duty,” and was caused by 

Consol’s “moderate” negligence.5

 The “Condition or Practice” is described as follows: 

Damp to wet accumulations of combustible materials consisting of 

loose coal, coal fines and coal dust, black in color, were permitted 

to accumulate under the rear of the 6-J Working Section Conveyor 

Belt Storage Unit and 0.5 crosscut. These accumulations measured 

13 feet long by 6 feet wide by 2 to mostly 12 inches in depth. 

These accumulations were in contact with the return side of the 

bottom conveyor belt and the stationary roller (outby roller). 

These accumulations were packed and worn smooth from the 

conveyor belt being operated overtop of them. The accumulations 

were built up to the point were [sic] the conveyor belt was almost 

rubbing the tight side of the take-ups [sic] frame. 

The Operator removed the Conveyor Belt from service 

immediately after the issuance of this citation until the condition 

could be corrected. 

 

5

 30 CFR § 75.400 provides that “[c]oal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be 

permitted to accumulate in active workings, or on diesel-powered and electric equipment 

therein.”

42 FMSHRC Page 257
Standard 75.400 was cited 109 times in two years at mine 3607230 

(109 to the operator, 0 to a contactor). 

Ex. P–6. The citation was terminated on May 17, after the operator removed the accumulations 

from the area. Ex. P–6. Consol has conceded the violation, but contests the S&S designation 

and the degree of negligence ascribed to the violation. Resp’t Br. at 22. 

B. Gravity 

The Secretary argues that the citation was S&S, and that the hazard is a “mine fire from 

the combination of heat from the belt and combustible coal.” Sec’y Br. at 8. Consol maintains 

that an ignition was unlikely to occur because of the wet conditions in the area, the mixed nature 

of the accumulations, and the presence of water sprays, an overhead fire suppression system, a 

CO monitor, a fire resistant belt, and a nearby attendant. Resp’t Br. at 22-23. 

Inspector Young testified that he observed accumulations underneath the 6-J working 

section conveyor belt storage unit that extended 6 feet in width, 2 to 12 inches in depth, and 12 

feet in length. Tr. 347. He stated that the accumulations were in contact with the belt and rollers 

in several places, noting that multiple rollers were under pressure, that accumulations were 

underneath the take-up structure, and that the belt had polished the accumulations. Tr. 347, 353, 

374. He also noted that none of the rollers were damaged, and that the belt was not in contact 

with the take-up structure. Tr. 347, 353, 373-74. Young testified that he observed chunks of 

coal within the wet mixture of dirt, rocks, and other debris, and that the accumulations were not 

rock dusted. Tr. 347, 350, 364-65, 385. In his opinion, the quantity indicated that the 

accumulations had existed for two to three shifts, and that it would have taken time for the belt to 

have polished them. Tr. 347, 351-52. He noted that the outside guarding was clean, which he 

believed to be another indication that a spill had not occurred recently. Tr. 393-94. In Young’s 

opinion, continued mining operations could dry out the accumulations and cause a fire, and the 

accumulations had almost built up enough to cause the belt to rub against the frame of the takeup structure. Tr. 350-51, 374-75. Finally, Young explained that the mine was subject to a fiveday spot inspection cycle for methane, and that he did not cite Consol for elevated levels of 

methane that day. Tr. 58-59, 258. 

Consol respirable dust coordinator John Opfar testified that the belt was in contact with 

the accumulations, that the belt was functioning at least intermittently at the time that the 

accumulations were cited, and that there was coal in the accumulations. Tr. 561-62, 564-65. He 

explained that spillage can occur when the belt is turned off and on. Tr. 564. He noted that the 

accumulations were wet and contained a mixture of materials. Tr. 561. He also testified about 

the fire prevention equipment employed by the mine, which includes an overhead fire 

suppression system, a CO monitor, fire resistant belts, and sprinklers. Tr. 553-54, 561-67. Opfar 

also noted that an attendant was stationed near the accumulations, and that he could have 

addressed any smoldering or fire. Tr. 561-62, 565-567. 

The fact of violation has been conceded. Regarding the second Mathies criterion, the 

discrete safety hazard against which section 75.400 is directed is fire or explosion contributed to 

by accumulations of combustible materials. 

42 FMSHRC Page 258
In cases involving combustible accumulations, the Commission has clarified that when 

considering the second and third steps of the Mathies analysis, “the likelihood of an injury 

resulting depends on the existence of a ‘confluence of factors’ that could trigger the ignition or 

explosion.” Mach Mining, 40 FMSHRC at 3-4 (citing McCoy Elkhorn Coal Corp., 36 FMSHRC 

1987, 1992 (Aug. 2014)). “Factors include any potential ignition sources, the presence or 

potential for presence of methane, float coal dust accumulations, loose coal or other ignitable 

substance, and the types of equipment operating in the area.” Id. at 4; see also Utah Power & 

Light Co., Mining Div., 12 FMSHRC 965, 971 (May 1990); Texasgulf, 10 FMSHRC at 501-03. 

Belt rollers contacting accumulations can be potential ignition sources even if the belt is not 

rubbing against any structure and there are no broken rollers. See id. at 4-6; see also Knox Creek 

Coal Corp., 36 FMSHRC 1128, 1139-42 (May 2014). Additionally, equipment operating in coal 

accumulations constitutes an ignition source for S&S purposes, even absent any defects in the 

equipment. See Buck Creek, 52 F.3d at 135. Finally, it is well established that a fire in an 

underground coal mine poses a significant risk of injury to miners. Id. at 135-36; Black 

Diamond Coal Mining Co., 7 FMSHRC 1117, 1120 (Aug. 1985). 

Consol argues that the wetness of the accumulations made it unlikely for a fire to occur. 

Resp’t Br. at 22-23. However, the Commission has long explained that “wet coal accumulations 

pose a significant danger in underground coal mines” because they can dry out through frictional 

contact with the belt or rollers, and propagate a fire or explosion. Mach Mining, 40 FMSHRC at 

4-6 (citing Consolidation Coal Co., 35 FMSHRC 2326, 2329-30 (Aug. 2013); Black Diamond, 7 

FMSHRC at 1120-21). 

Consol next contends that the presence of an overhead fire suppression system, a CO 

monitor, sprinklers, and fire resistant belts reduce the likelihood of the hazard causing an injury. 

Resp’t Br. at 22-23. However, it is well settled that these safety measures are not valid 

considerations in determining whether a violation is S&S. Buck Creek, 52 F.3d at 135-36 (the 

court rejected the operator's contention that other fire prevention safety measures mitigated the 

S&S nature of an accumulation); see also Sec’y of Labor v. Consolidation Coal Co., 895 F.3d 

113, 118 (D.C. Cir. 2018); Knox Creek, 811 F.3d at 162; Cumberland Coal Res., LP, 717 F.3d 

1020, 1028-29 (D.C. Cir. 2013), aff’g 33 FMSHRC 2357 (Oct. 2011); Brody Mining, LLC, 37 

FMSHRC 1687, 1691 (Aug. 2015). Furthermore, as the Commission has recognized, adopting 

the position that redundant safety measures provide a defense to an S&S finding “would lead to 

the anomalous result that every protection would have to be nonfunctional before a[n] S&S 

finding could be made.” Cumberland Coal Res., LP, 33 FMSHRC 2357, 2369 (Oct. 2011). 

Consol also maintains that a fire was unlikely because the accumulations were a mixture 

of combustible and noncombustible materials. Resp’t Br. at 22. On this point, I credit Young’s 

testimony, based on his experience and observation of the coal in the accumulations, that there 

was sufficient coal to provide a fuel source. 

Finally, Consol advances the argument that the nearby attendant could prevent an ignition 

from occurring or clean up any accumulations. Resp’t Reply Br. at 5. However, the 

Commission requires that an S&S determination be made at the time that a citation is issued, 

“without any assumptions as to abatement,” and in the context of “continued normal mining 

operations.” Paramont Coal Co., 37 FMSHRC 981, 985 (May 2015); U.S. Steel, 6 FMSHRC at 

42 FMSHRC Page 259
1574. In the present case, the evidence establishes that the accumulations had accrued over a 

few shifts because of the quantity, that they had been polished by the belt, and that there was no 

spillage on the guarding; in that timespan, no one, including the attendant, had addressed them. 

It follows, therefore, that the attendant had no effect on the likelihood of a fire or explosion 

occurring. 

The cases cited by Consol in support of a non-S&S designation are premised upon facts 

that are distinguishable from the facts at hand. See Resp’t Br. at 22-23. In Brody Mining, LLC, 

the judge found a non-S&S violation where the accumulations were loose and not compacted, 

they were wet with water rather than hydraulic oil, there was no evidence of heat coming from 

the belt, and redundant safety measures made ignition unlikely. 33 FMSHRC 1329, 1382, 1384-

85 (May 2011) (ALJ). Here, the accumulations were packed and polished by the belt to the point 

that they had become smooth, indicating that there had been significant contact and friction with 

the belt. In Mach Mining, LLC, the judge found that the accumulations could have accrued in a 

relatively short time, that approximately half of the material was noncombustible rock, and that 

the roller contacting the accumulations was no longer in use. 33 FMSHRC 763, 773 (Mar. 2011) 

(ALJ).6

 In this case, by contrast, the cited accumulations were present significantly longer than a 

shift, the mixture was black and contained chunks of coal, and the accumulations were in contact 

with functioning rollers. 

The evidence establishes that there were numerous points of contact between the 

accumulations and the belt, and there were multiple rollers under pressure, all of which created 

points of friction.7 Moreover, there were chunks of coal in the accumulations, and the belt had 

polished them. Furthermore, despite no evidence of excessive methane levels on the section at 

the time that Young cited the accumulations, the fact that Bailey is subject to a five-day spot 

inspection cycle for methane heightened the potential for an ignition in the context of continued 

normal mining.8

 Finally, at least one miner, the attendant, would have been in close proximity to 

a fire. Based on these facts, I find that the coal accumulations contributed to the reasonable 

likelihood of a fire, a hazard that would be reasonably likely to result in an injury. Accordingly, 

the second and third Mathies criteria have been satisfied. 

As the Seventh Circuit expressed in Buck Creek, a finding that “a fire burning in an 

underground coal mine would present a serious risk of smoke and gas inhalation” is a common 

sense conclusion. 52 F.3d at 135-36; see also Black Diamond, 7 FMSHRC at 1120 (recognizing 

6

 In both cases, the judges’ reliance on redundant safety measures was misplaced and, to 

the extent that their non-S&S findings were based on the wetness of the accumulations, such 

reasoning has been rejected by the Commission. See Cumberland Coal, 717 F.3d at 1028-29; 

Mach Mining, 40 FMSHRC at 4. 

7

 I also note that, had this condition continued unabated, there was a heightened 

likelihood of the belt coming into contact with the take-up structure, creating another source of 

friction and increasing the potential for an ignition. 

8

 The Commission has recognized that methane liberation can compound the likelihood 

of ignition in accumulation cases. Mach Mining, 40 FMSHRC at 4.

42 FMSHRC Page 260
that “ignitions and explosions are major causes of death and injury to miners”). Based on the 

facts in this case and the relevant precedent, I find a reasonable likelihood that any injury arising 

from a mine fire would be of a reasonably serious nature, satisfying the fourth Mathies criterion. 

Accordingly, I find that this violation was S&S. 

C. Negligence 

The Secretary asserts that Consol was moderately negligent in committing the violation 

because the accumulations were not caused by spillage, and had been building up for two to 

three shifts. Sec’y Br. at 8. Consol argues that its negligence should be low because the 

accumulations were hard to identify, they could have accrued between examinations, and they 

could have been caused by the belt being turned off and on. Resp’t Br. at 23. The evidence 

establishes that the accumulations had existed for at least two shifts and had not been caused by a 

sudden event, and that no action had been taken to remove them. Based on these facts, I find that 

Consol was moderately negligent in violating the standard. 

3. Citation No. 9077374 

A. Fact of Violation 

Inspector Young issued 104(a) Citation No. 9077374 on June 28, 2018, alleging an 

“S&S” violation of section 75.340(a)(1)(i) that was “reasonably likely” to cause an injury that 

could reasonably be expected to result in “lost workdays or restricted duty,” and was caused by 

Consol’s “moderate” negligence.9

 The “Condition or Practice” is described as follows: 

The battery scoop charging station located in the 5-L Longwall 

Working Section (008-0 MMU) between the numbers 1 and 2 

entries at the number 3 crosscut was ventilated with intake air that 

was not coursed into a return air course or to the surface and was 

being used to ventilate working places. When smoked with a 

chemical smoke tube the air being used to ventilate the scoop 

batteries was being coursed inby to the 5-L Longwall Working 

Section’s last open crosscut (4 crosscut). This smoke tube reading 

was taken at the track entry side of the battery being charged, 18 

feet inby the ribline of the track entry (number 2 entry). 

Standard 75.340(a)(1)(i) was cited 11 times in two years at mine 

3607230 (11 to the operator, 0 to a contractor). 

Ex. P–2. The citation was terminated on June 28, when the ventilation was corrected by hanging 

a piece of line brattice across the opening to the crosscut and enlarging the hole in the stopping. 

9

 30 C.F.R. § 75.340(a)(1)(i) provides, in relevant part that “battery charging stations . . . 

shall be housed in noncombustible structures . . . . When a noncombustible structure or area is 

used, these installations shall be . . . [v]entilated with intake air that is coursed into a return air 

course or to the surface and that is not used to ventilate working places.” 

42 FMSHRC Page 261
Ex. P–2. Consol has conceded the violation, but contests the S&S designation, the number of 

persons affected, and the degree of negligence ascribed to the violation. Resp’t Br. at 7, 23. 

B. Gravity 

The Secretary contends that this violation was S&S because the improper ventilation 

would expose miners to toxic fumes and smoke from the battery charging station, and urges the 

assumption of an emergency, i.e., a battery fire, in the Mathies analysis. Sec’y Br. at 9-10 (citing 

Cumberland Coal, 717 F.3d at 1028-29). Alternatively, the Secretary asserts that, even if a fire 

were not assumed, the conditions in the mine on the day in question would render the ventilation 

dangerous to miners. Sec’y Br. at 10. 

Consol maintains that it would be inappropriate to assume an emergency in the Mathies

analysis because section 75.340(a)(1)(i) is not an emergency standard. Resp’t Reply Br. at 5-6 

(citing Cumberland Coal, 717 F.3d at 1028-29; ICG Illinois, 38 FMSHRC at 2473). Moreover, 

Consol contends that determining whether a fire was likely to occur is an essential part of the 

S&S analysis and that, given the good condition of the cited battery, a fire was unlikely. 

Resp’t Br. at 7-9. Additionally, Consol explains that, even if a fire were to occur, miners’ 

exposure would be limited because intake air coming from the primary escapeway would dilute 

any smoke or contamination coming from the No. 2 track entry before it reached the working 

face. Resp’t Br. at 8, 23-24. 

Inspector Young testified that he encountered a noticeable increase in temperature near 

the No. 3 crosscut, and found that the heat was coming from a battery charging in the crosscut 

and the connected charger. Tr. 60-61, 70-71. He testified that the battery was located near the 

stopping in the crosscut, that there was no ventilation curtain at the charging station, and that 

there was a disconnected charger also sitting in the crosscut. Tr. 60-61, 64, 82-83, 90, 94, 130. 

The battery in the No. 3 crosscut was connected to a charger mounted on the train in the No. 2 

track entry, and Young explained that MSHA does not cite chargers that are mounted on trains. 

Tr. 65, 70, 91-92. He opined that charging batteries are dangerous because if they catch fire, 

they can create toxic smoke and carbon monoxide. Tr. 64, 141. Young stated that he released 

multiple smoke tubes 13, 15, and 18 feet from the ribline of the track entry to determine whether 

the area was properly ventilated. Tr. 63-64, 68, 125, 127. He explained that when he took a 

smoke test at the 18 foot mark at the front edge of the battery, some smoke went through the 

stopping in the crosscut to the return belt entry and some went toward the ribline, continuing up 

the track entry toward the face. Tr. 116, 122, 124-25, 127, 130. When he released smoke at the 

15 foot mark, he observed the smoke swirling; at the 13 foot mark, he observed the smoke 

traveling toward the face. Tr. 127. Young then explained that, in the event of contamination 

coming from the battery, once intake air from the No. 1 primary escapeway met the 

contaminated air in the No. 2 track entry, some of the combined air would be siphoned off at the 

last open crosscut into the return belt entry, but there would be no way to quantify the amount of 

contamination ventilating the face. Tr. 76, 80-81, 116. He noted that in assessing the gravity of 

the violation, he took into account other ventilation in the mine and the potential for dilution of 

any contaminated air, and he acknowledged that Consol employs a fire suppression system, CO 

monitors, and a fire resistant curtain over the battery. Tr. 117-18, 131, 154. 

42 FMSHRC Page 262
Consol safety inspector Justin Jones testified that he observed Young perform the smoke 

test over the battery, and that the smoke remained stagnant; however, he also stated that the 

smoke split and some traveled toward the face when Young performed smoke tests closer to the 

ribline. Tr. 417-19, 430. He explained that any air traveling toward the face would get diluted 

by intake air coming from the primary escapeway, that some of the contaminated air would get 

siphoned off, and that there was no damage to the charger or the battery at the time of inspection. 

Tr. 418, 422-23, 425. Finally, he noted that miners are equipped with self-contained self-rescue 

devices (“SCSR”), and that Consol utilizes fire suppression systems, CO monitors, and a fire 

resistant curtain over the battery. Tr. 418-19. 

The fact of violation has been conceded. Regarding the second Mathies criterion, the 

discrete safety hazard that section 75.340(a)(1)(i) is intended to prevent is “delivery of smoke or 

other products of combustion to the working place by the intake air current.” 57 Fed. Reg. 

20868-01, 20888 (May 15, 1992). 

Addressing the Secretary’s position as to the second Mathies criterion, the Commission 

and the D.C. Circuit have applied Cumberland Coal to standards that only become relevant in 

emergency situations, such as lifelines, escapeways, and refuge chambers. See e.g., Cumberland 

Coal, 717 F.3d at 1026-28; ICG Illinois, 38 FMSHRC at 2476; Small Mine Dev., 37 FMSHRC 

1892, 1900-01 (Sept. 2015); Black Beauty Coal Co., 36 FMSHRC 1121, 1123 (May 2014); 

Spartan Mining Co., 35 FMSHRC 3505, 3508-09 (Dec. 2013). The standard at issue, section 

75.340(a)(1)(i), is not within the ambit of the situations that would render it an emergency 

standard. Therefore, at this juncture, the particular facts attendant this violation are analyzed to 

determine the reasonable likelihood of smoke and other products of combustion reaching the 

working face, irrespective of any emergency. 

In support of its contention that the charging battery posed no risk of fire because it was 

not found to be defective, Consol cites several cases for the proposition that the S&S designation 

is primarily premised upon the likelihood of a battery fire occurring. Resp’t Br. at 8 (citing 

Rebco Coal, Inc., 36 FMSHRC 181, 186 (Jan. 2014) (ALJ); Roxcoal, Inc., 33 FMSHRC 2303, 

2313 (Sept. 2011) (ALJ); Zeigler Coal Co., 14 FMSHRC 203, 219 (Jan. 1992) (ALJ); Mathies 

Coal Co., 4 FMSHRC 2222, 2234-35 (Dec. 1982) (ALJ)). These cases, involving similar 

violations but different facts, are of limited value. In Roxcoal, in finding that a battery fire was 

unlikely and that the violation was non-S&S, the judge noted that any contaminated air in the 

travelway would be coursed quickly to the return. 33 FMSHRC at 2313. There is no such 

indication in the present case. In Zeigler Coal and Rebco Coal, the inspectors did not designate 

the violations S&S, and the judges did not make findings on S&S. See 14 FMSHRC at 219; 36 

FMSHRC at 186. In Mathies Coal, the cited battery charging equipment was not in use, whereas 

here, the battery was being charged. See 4 FMSHRC at 2234-35. 

Additionally, MSHA has explained that section 75.340 requirements are designed “to 

protect miners if a fire originates at underground transformer stations, battery charging stations, 

substations, rectifiers and water pumps.” 57 Fed. Reg. at 20888 (emphasis added). MSHA has 

also explained that the requirements are “necessary to safely operate [battery] chargers, 

regardless of the location” because charging batteries liberate hydrogen, and “[t]here is a 

42 FMSHRC Page 263
demonstrated history of fires caused by battery chargers.” 61 Fed. Reg. 9764-01, 9786 (Mar. 11, 

1996).10 

In the present case, the evidence establishes that the air at the charging battery in the No. 

3 crosscut split, some ventilating through the stopping into the return belt entry, and some 

migrating inby the track entry and mixing with intake air from the primary escapeway before 

coursing the working face. Accordingly, the second Mathies requirement has been satisfied. 

Regarding the third Mathies criterion, Consol’s contention, that its overhead fire 

suppression system, CO monitors, fire resistant curtain, and SCSRs for its miners would reduce 

the likelihood of injury, is clearly contrary to long held precedent. The Commission and Federal 

Courts of Appeals have explained that redundant safety measures are not valid considerations in 

determining whether an injury is reasonably likely to occur. See e.g., Knox Creek, 811 F.3d at 

162; Cumberland Coal, 717 F.3d at 1029; Brody Mining, 37 FMSHRC at 1691. 

While the evidence establishes that contaminated air originating in the No. 3 crosscut and 

traveling inby the track entry was diluted by intake air from the primary escapeway, and that 

some of the combined air was siphoned off at the last open crosscut and ventilated into the return 

belt entry, an unknown quantity of residual contaminants reached the working face and, in the 

event of a fire at the charging battery, smoke and other products of combustion would be 

reasonably likely to reach the entire crew, resulting in serious respiratory and other injuries. 

Accordingly, I find that the third and fourth Mathies criteria have been satisfied, and that this 

violation was S&S. 

C. Negligence 

The Secretary contends that Consol was moderately negligent in violating the standard 

because the heat emanating from the battery and charger was obvious. Sec’y Br. at 10. Consol 

argues that its negligence was low because there were no defects found on the battery or the 

charger, and the Secretary did not establish how long the condition had existed. Resp’t Br. at 11. 

The evidence establishes that the charging battery and charger were generating noticeable heat. 

Additionally, the hole in the stopping was insufficient for adequate ventilation of the charging 

battery into the return belt entry, and there was no other ventilation control at that location. 

Based on these facts, I find that the Consol was moderately negligent in violating the standard. 

4. Citation No. 9077375 

A. Fact of Violation 

Inspector Young issued 104(a) Citation No. 9077375 on June 28, 2018, alleging an 

“S&S” violation of section 75.512 that was “reasonably likely” to cause an injury that could 

10 Consol acknowledges that charging batteries liberate hydrogen. Resp’t Reply Br. at 6 

(citing Lion Mining Co., 16 FMSHRC 921, 923-24 (Apr. 1994) (ALJ); Nats Creek Mining Co., 

17 FMSHRC 115, 129-30 (Feb. 1995) (ALJ); Bethenergy Mines, Inc., 11 FMSHRC 1999, 2002-

06 (Oct. 1989) (ALJ)). 

42 FMSHRC Page 264
reasonably be expected to be “fatal,” and was caused by Consol’s “moderate” negligence.11 The 

“Condition or Practice” is described as follows: 

The energized 480 A.C. Volt control panel containing the VFD#1 

and VBD#2 breakers on the ISE Pump Car located in the number 2 

entry, just outby 3 crosscut, in the 5-L Longwall Working Section 

(008-0 MMU) was not frequently examined, tested, and properly 

maintained by a qualified person to assure safe operating 

condition. When inspected the outby door was not closed and after 

further investigation neither of the breaker control levers on the 

outside of this panel were not [sic] operational. The metal 

extensions that fit between the actual machine breaker and the 

exterior breaker control reset handles were not connected. Due to 

this condition, a person would have to reset these breakers 

manually by inserting the bare metal square stock and using a tool 

to turn/reset the breakers, exposing them to contacting the 

energized components inside the control box. 

Ex. P–3. The citation was terminated on June 28, after the breaker control levers were properly 

reinstalled and the control panel door was closed securely. Ex. P–3. Consol has conceded the 

violation, but contests the S&S designation and the reasonably expected injury, and the degree of 

negligence ascribed to the violation. Resp’t Br. at 12, 24. 

B. Gravity 

The Secretary maintains that the violation was S&S because the open door on the ISE 

pump circuit breaker (“ISE box”) exposed miners to 480 volts of electricity as they passed 

through the area. Sec’y Br. at 10. Furthermore, the Secretary contends that miners and 

electricians could have been electrocuted if they had attempted troubleshooting at the ISE box. 

Sec’y Br. at 10-12. 

Consol argues that the alleged hazard was not reasonably likely to occur because miners 

did not travel on the tight side of the track entry where the ISE box was accessed. Resp’t Br. at 

12. Additionally, Consol contends that unqualified miners would be unlikely to operate the 

breakers because such behavior is contrary to their training, mechanics and electricians are 

on-site to perform electrical tasks, the conditions requiring resetting the breakers were not 

present at the time in question and, were de-energizing the panel necessary, qualified miners 

could do so at the load center rather than the control panel. Resp’t Br. at 14-15. Finally, Consol 

maintains that the reasonably expected injury should be reduced from “fatal” to “lost workdays 

or restricted duty” because only electricians wearing protective gloves would be expected to 

encounter the hazard while troubleshooting, the power could be turned off prior to 

11 30 C.F.R. § 75.512 provides, in relevant part, that “[a]ll electric equipment shall be 

frequently examined, tested, and properly maintained by a qualified person to assure safe 

operating conditions. When a potentially dangerous condition is found on electric equipment, 

such equipment shall be removed from service until such condition is corrected.” 

42 FMSHRC Page 265
troubleshooting, and the Secretary “failed to produce any evidence demonstrating the 

relationship between volts and amps[,] and the number of amps required to make 480 volts 

lethal.” Resp’t Br. at 24-25. 

Inspector Young testified that he observed the outby door open approximately three 

inches on the ISE box, and that the breaker control levers were disconnected; he found one of the 

control lever connector rods lying on the bottom of the box, six inches from the energized 

components, and the other lying a couple of feet away from the ISE box in another car. Tr. 166-

67, 174, 190-91, 194. He opined that vibrations from the pump could have opened the door, but 

that at least one of the disconnected control rods had been removed intentionally. Tr. 204-05. 

He explained that contact with the live components would cause fatal injuries because the ISE 

box is energized by 480 volts of electricity from the load center, which is used, in part, to power 

the ISE pump, that the pump was most likely plugged into a 600 or 800 amp breaker inside the 

box, and that contacting even 480 volts at half an amp would be fatal. Tr. 168-69, 185-86, 201-

02. Young asserted that the ISE box was in a “high traffic area,” that miners traveled on both 

sides of the equipment, and that they could accidentally contact the live control panel by 

tripping. Tr. 167-68, 188, 192. According to him, despite miner training and availability of 

qualified mechanics and electricians, unqualified miners could have attempted troubleshooting at 

the box which, without the control rods, would expose them to the energized components. 

Tr. 167-68, 173-74, 183, 194-95, 197-203. He also acknowledged that only electricians, wearing 

protective gloves, are permitted to troubleshoot at the ISE box when energized, that the power to 

the box could have been shut down at the load center, and that there were no conditions on the 

day in question that required resetting the breakers. Tr. 167-69, 175, 194-96. 

Consol safety inspector Justin Jones testified that one of the control panel doors was open 

only a few inches, and that miners do not travel on the tight side of the track entry where the ISE 

box was located because the hydraulic lines running along that side make travel “inconvenient.” 

Tr. 469, 473-74, 483-84. However, he testified that even if a miner were to fall where the box 

was located, it would likely close the door to the box. Tr. 483. Jones explained that in the event 

that the breakers required resetting, a mechanic or electrician with protective gear could access 

the ISE box control panel or turn off the power to the box at the load center for the longwall 

train, and that miners are trained not to troubleshoot electrical equipment. Tr. 474, 477, 490-92. 

The fact of violation has been conceded. Regarding the second Mathies criterion, the 

discrete safety hazard against which section 75.512 is directed is serious electric shock or 

electrocution. 

The cases relied upon by the Secretary to establish that the violation was S&S are 

distinguishable. In Big Ridge, the judge affirmed an S&S finding where a 480-volt power cable 

was damaged in three places, and there was substantial evidence that miners were active in the 

area. See Sec’y Br. at 12 (citing Big Ridge, Inc., 36 FMSHRC 999, 1021-24 (Apr. 2014) (ALJ)). 

In the instant matter, by contrast, the door on the ISE box was open three inches at best, and the 

box was located in an infrequently traveled area, significantly reducing the likelihood of 

accidental contact with the energized components. In McElroy Coal, the judge affirmed an S&S 

finding where a power center could have electrocuted miners not in direct contact with the live 

components, because the electricity could “track” to objects, such as steel-toed boots, in close 

42 FMSHRC Page 266
proximity to the exposed power source, and there was evidence that clothing, lunch pails, and 

other items were stored on top of the power center. See Sec’y Br. at 12 (citing McElroy Coal 

Corp., 30 FMSHRC 45, 57-58 (Jan. 2008) (ALJ)). Here, the evidence indicates that the danger 

was confined to the energized components inside the ISE box. 

Consol cites to Zapata Coal, in which the judge found a non-S&S violation where covers 

on three electrified 480-volt breaker boxes were open two to three inches and not properly 

secured, because exposure to the hazard was minimal and injury was unlikely. See Resp’t Br. at 

12 (citing Zapata Coal Corp., 6 FMSHRC 2639, 2646-47 (Nov. 1984) (ALJ)). This case 

presents similar facts. It is uncontested that one of the doors accessing the energized control 

panel inside the ISE box was open a few inches, that the box was located on the tight side of the 

track, and that travel on that side was inconvenient. The Secretary has failed to establish that 

unqualified miners would be traveling the tight side with any frequency, or that they would reset 

the breakers in the box. Moreover, the Secretary has not rebutted evidence that qualified 

mechanics and electricians troubleshoot electrical equipment, or that qualified miners could shut 

down power to the ISE box at the load center. Consequently, I find that accidental contact with 

the energized components was unlikely. Therefore, the Secretary has failed to establish the 

second Mathies criterion, and this violation was not S&S. 

Regarding the injury that would reasonably be expected, Consol contends that by failing 

to demonstrate the relationship between voltage and amperage, the Secretary has not established 

that 480 volts of electricity would be lethal. Consol does not challenge that the ISE box was 

energized with 480 volts from the load center, or that the power for the ISE pump ran through 

the box. Furthermore, Consol does not rebut that, in all likelihood, the pump was connected to a 

600 or 800 amp breaker, or that contacting 480 volts at even half an amp would be fatal. 

Consequently, the only evidence on this point stands. Therefore, in the unlikely event that an 

unqualified miner were to contact the energized components, the reasonably expected injury 

would be fatal. 

C. Negligence 

The Secretary argues that Consol was moderately negligent in committing the violation 

because weekly examinations were required, the condition was obvious, and the state of the 

control rods indicated improper handling of the equipment. Sec’y Br. at 12. Consol contends 

that low negligence is appropriate because the latches on the door could have come loose 

inadvertently, the box was located in a non-obvious location, there was no evidence that the door 

was open at the time of the last examination and it was not reported, and Consol was not cited for 

an inadequate examination. Resp’t Br. at 15. Balancing the evidence that the door was only ajar 

rather than wide open, and that the condition was not readily observable and of unknown 

duration, against the evidence of equipment mishandling indicated by one of the disconnected 

breaker control levers being found in another car, I find that Consol was moderately negligent in 

violating the standard. 

42 FMSHRC Page 267
5. Citation No. 9077376 

A. Fact of Violation 

Inspector Young issued 104(a) Citation No. 9077376 on June 28, 2018, alleging an 

“S&S” violation of section 75.202(a) that was “reasonably likely” to cause an injury that could 

reasonably be expected to result in “lost workdays or restricted duty,” and was caused by 

Consol’s “moderate” negligence.12 The “Condition or Practice” is described as follows: 

The mine roof in areas where persons work or travel was not 

adequately supported or otherwise controlled to protect persons 

from hazards related to falls of the mine roof, between the last 

tailgate shield (#273 at spad number 11+11) and the 5-L Tailgate 

Travel way on the 5-L Longwall Working Section. The 

unsupported area measured 5.5 feet wide by 18.5 feet long and 

would not allow face personnel to safely access the tailgate 

travelway in the event of an emergency. 

Standard 75.202(a) was cited 13 times in two years at mine 

3607230 (13 to the operator, 0 to a contractor). 

Ex. P–4. The citation was terminated on June 28, after the mine roof was supported with posts, 

making the tailgate safely accessible. Ex. P–4. Consol has conceded the violation, but contests 

the S&S designation and the degree of negligence ascribed to the violation. Resp’t Br. at 15-17. 

B. Gravity 

The Secretary, arguing that the violation was “almost per se” reasonably likely to cause 

an injury, contends that the violation was S&S because “there were signs of pressure in the roof 

and actual material falling off the roof.” Sec’y Br. at 12-13. He contends that the foreman 

would be exposed to the hazard because he is required to pass through the cited area to take air 

readings every four hours. Sec’y Br. at 12-13. The Secretary also asserts that some miners 

might travel to the face through the tailgate, and that an emergency might force the entire crew to 

evacuate through the tailgate. Sec’y Br. at 12-13. On the other hand, Consol argues that it 

would be unlikely for a miner to be in the cited area at the precise time of a rock fall and that, 

outside of emergency situations, only a foreman would travel in the area. Resp’t Br. at 16-17. 

Inspector Young testified that the area of unsupported roof was roughly 5.5 feet wide and 

18.5 feet long between the end of the longwall and the tailgate, and that the condition likely 

arose from the longwall getting “off sights.” Tr. 212-13, 234. He stated that he observed 

unconsolidated pieces hanging and large chunks of material falling from the roof in that area. 

Tr. 210. Young opined that miners could travel through the cited area to reach the working face, 

12 30 C.F.R. § 75.202(a) provides that “[t]he roof, face and ribs of areas where persons 

work or travel shall be supported or otherwise controlled to protect persons from hazards related 

to falls of the roof, face or ribs and coal or rock bursts.” 

42 FMSHRC Page 268
or could be required to escape through the tailgate in an emergency. Tr. 215-16, 257. He 

explained that because the mine has two escapeways located on the headgate side, the mine is 

required to maintain a passable travelway to the tailgate and that, under normal conditions, the 

section foreman would cross from the longwall into the tailgate to take air readings. Tr. 235, 

259-61. He also testified that it takes two hours for the longwall to complete a round trip, and he 

was of the opinion that whether the longwall advancing would terminate the condition is 

speculative; he admitted, however, that the cited condition can arise unexpectedly, and come and 

go as longwalls advance. Tr. 246, 249, 253-54, 256. 

Consol safety inspector Justin Jones testified that the foreman would take an air reading 

in the area between the end of the longwall and the tailgate every four hours. Tr. 406, 514-15. 

He explained that the advancing longwall would have resolved the roof condition within the hour 

because, when the longwall shearer completed its next pass, it would have “knocked out” the 

cited area and the shields would have advanced. Tr. 515. He testified that under normal 

circumstances, miners would not travel to and from the longwall face through the tailgate, but 

acknowledged that in the case of an emergency, escape through the tailgate might be necessary. 

Tr. 514, 520. He noted that there had not been an emergency requiring usage of the tailgate as an 

escapeway during his six years working at the mine. Tr. 520. In his opinion, the roof appeared 

“in fine condition to pass under.” Tr. 530. Additionally, he noted that miners had been setting 

posts in the tailgate earlier in the shift. Tr. 510-11; Ex. R–20. 

The fact of violation has been conceded. Considering the second step of Mathies, the 

roof was unsupported and fairly large chunks were already falling when the inspector came upon 

the area. The discrete safety hazard contemplated by this standard is roof falls in areas where 

persons work or travel. Accordingly, the second Mathies step is met. 

Consol identifies cases in which judges made non-S&S findings based upon 

considerations of the likelihood of hazards occurring, i.e., roof falls, in conjunction with the 

unlikelihood of miners being at those precise locations when the hazards occurred, in concluding 

that injuries were unlikely. Resp’t Br. at 16; Resp’t Reply Br. at 9 (citing Peabody Midwest 

Mining LLC, 35 FMSHRC 2419 (Aug. 2013) (ALJ); Freedom Energy, Mining Co., 32 FMSHRC 

1809, 1829 (Dec. 2010) (ALJ); Ohio Cty. Coal Co., 31 FMSHRC 1486, 1489 (Dec. 2009) 

(ALJ)). However, the Commission has indicated that when considering the likelihood of injury 

under the third Mathies criterion, the hazard is assumed to have occurred. Newtown Energy, 38 

FMSHRC at 2038. 

The Secretary does not refute Consol’s contention that the hazard would have been 

resolved within the hour. The evidence establishes that it would have taken roughly an hour for 

the longwall shearer to compete the second half of its roundtrip at the time in question, and that 

the cited condition can arise unexpectedly and is not unusual; it can come and go. Accordingly, I 

find that the longwall’s advance would have cut away and corrected the unsupported roof by 

12:30 that afternoon. 

 The Secretary’s assertion that miners could travel through the tailgate to reach the 

working face is contradicted by evidence that miners would only travel through the tailgate if 

there were an emergency that rendered the primary escapeways unusable. Moreover, the 

42 FMSHRC Page 269
Secretary has failed to establish any emergency conditions present during the longwall cycle that 

was underway. Additionally, while miners setting timbers in the tailgate earlier in the shift were 

nearby, the Secretary has not shown that they worked in the unsupported area between the end of 

the longwall and the tailgate, or that they traveled through it while the condition existed. Ex. 

R–20; Tr. 510-11. The evidence establishes that the assistant foreman took a methane reading in 

the tailgate at 9:20 in the morning. See Ex. R–5 at 4; Ex. P–4. It follows that the next reading 

would have occurred sometime around 1:20 that afternoon, well after the hazard would have 

been cut away and the longwall advanced. Despite the evidence of falling rock from the 

unsupported roof at the time of inspection, I find that the Secretary has failed to establish that 

anyone would have been exposed to the hazard between the longwall and the tailgate during its 

duration. Consequently, I find that the hazard was unlikely to result in an injury. Therefore, the 

Secretary has failed to establish the third Mathies criterion, and this violation was not S&S. 

C. Negligence 

The Secretary contends that Consol was moderately negligent in violating the standard 

because miners were working in the area and failed to address the condition. Sec’y Br. at 13. 

Consol contends that its negligence was low because this condition can arise in the ordinary 

course of longwall mining, and the condition was not reported. Resp’t Br. at 17. There is no 

evidence that miners were working or traveling directly under the unsupported roof, or that 

Consol was aware of the hazard before the inspector identified it. Moreover, the evidence 

establishes that unstable roof conditions can arise unexpectedly as the longwall operates. I find 

that these factors mitigate the negligence and, therefore, that Consol’s negligence was low in 

violating this standard. 

IV. Penalties 

While the Secretary has proposed a total civil penalty of $11,067.00, the judge must 

independently determine the appropriate assessment by proper consideration of the six penalty 

criteria set forth in section 110(i) of the Mine Act, 30 U.S.C. § 820(i). See Sellersburg Co., 5 

FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984). 

Applying the penalty criteria, and based on a review of MSHA’s online records, I find 

that Consol is a large operator. The record also indicates that Consol demonstrated good faith in 

achieving rapid compliance after notice of the violations, and consideration of its history of 

violations, from the Assessed Violation History Reports, follows for each citation. Consol has 

stipulated that imposition of the proposed penalties will not adversely affect its ability to remain 

in business. Jt. Stip. 6. 

The remaining criteria involve consideration of the gravity of the violations and Consol’s 

negligence in committing them. These factors have already been discussed fully. Therefore, 

considering my findings as to the six penalty criteria, the penalties are set forth below. 

42 FMSHRC Page 270
1. Citation No. 9077362 

It has been established that this violation was unlikely to cause an injury and non-S&S, 

and that Consol’s negligence was low. In the fifteen-month period preceding issuance of this 

citation for damaged shield hoses, 10 violations of section 75.1725(a) became final orders of the 

Commission. Ex. P–9 at 1-2. Given that section 75.1725(a) is a general equipment maintenance 

standard, and that the record is lacking as to the specific nature of those violations, I find 

Consol’s violation history neither a mitigating nor aggravating factor in assessing the appropriate 

penalty. The Secretary has proposed a penalty of $749.00. Applying the civil penalty criteria, I 

find that a penalty of $200.00 is appropriate. 

2. Citation No. 9077364 

It has been established that this S&S violation was reasonably likely to cause an injury 

that could reasonably be expected to result in lost workdays or restricted duty, and that Consol 

was moderately negligent. In the fifteen-month period preceding issuance of this citation for 

combustible accumulations, 67 violations of section 75.400 became final orders of the 

Commission. Ex. P–9 at 8-10. Given the volume of coal produced at Bailey, I find Consol’s 

violation history significant, but not an aggravating factor in assessing the appropriate penalty. 

Applying the civil penalty criteria, I find that a penalty of $1,211.00, as proposed by the 

Secretary, is appropriate. 

3. Citation No. 9077374 

It has been established that this S&S violation was reasonably likely to cause an injury 

that could reasonably be expected to result in lost workdays or restricted duty, that six persons 

would be exposed to the hazard, and that Consol was moderately negligent. In the fifteen-month 

period preceding issuance of this citation for inadequate ventilation of a charging battery, 10 

violations of section 75.340(a)(1)(i) became final orders of the Commission. Ex. P–9 at 11-12. 

Given that section 75.340(a)(1)(i) is a general standard relating to ventilation of underground 

electrical instillations, and the record is lacking as to the specific nature of those violations, I find 

Consol’s violation history neither a mitigating nor aggravating factor in assessing the appropriate 

penalty. Applying the civil penalty criteria, I find that a penalty of $1,539.00, as proposed by the 

Secretary, is appropriate. 

4. Citation No. 9077375 

It has been established that this violation was unlikely to cause a fatality and non-S&S, 

and that Consol was moderately negligent. In the fifteen-month period preceding issuance of 

this citation for inadequate ISE box maintenance, 33 violations of section 75.512 became final 

orders of the Commission. Ex. P–9 at 5-6. Given that section 75.512 is a general standard 

relating to maintenance of electrical equipment, and that the record is lacking as to the specific 

nature of those violations, I find Consol’s violation history neither a mitigating nor aggravating 

factor in assessing the appropriate penalty. The Secretary has proposed a penalty of $3,161.00. 

Applying the civil penalty criteria, I find that a penalty of $1,000.00 is appropriate. 

42 FMSHRC Page 271
5. Citation No. 9077376 

It has been established that this violation was unlikely to cause an injury and non-S&S, 

and that Consol’s negligence was low. In the fifteen-month period preceding issuance of this 

citation for inadequate roof support, 9 violations of section 75.202 became final orders of the 

Commission, and I find Consol’s violation history neither a mitigating nor aggravating factor in 

assessing the appropriate penalty. Ex. P–9 at 3-4. The Secretary has proposed a penalty of 

$749.00. Applying the civil penalty criteria, I find that a penalty of $200.00 is appropriate. 

IV. Approval of Settlement 

The Secretary has filed Motions to Approve Partial Settlement respecting five of the ten 

citations involved in these dockets. A reduction in penalty from $3,658.00 to $2,005.00 is 

proposed. The citations, initial assessments, and proposed settlement amounts are as follows: 

Docket No. Citation No. 

Initial 

Assessment 

Proposed 

Settlement 

 

PENN 2018-0243 9076103 $336.00 $184.00 

9079127 $1,118.00 $559.00 

9076446 $502.00 $326.00 

9074941 $953.00 $524.00 

TOTAL: $2,909.00 $1,593.00 

 

PENN 2018-0255 9077570 $749.00 $412.00 

TOTAL: $749.00 $412.00 

 

 GRAND TOTAL: $3,658.00 $2,005.00 

I have considered the representations and documentation submitted in these matters under 

section 110(k) of the Act, and I conclude that the proffered settlement is appropriate under 

section 110(i) of the Act, and is in the public interest. Specifically, regarding Citation No. 

9076103, the Secretary has found the gravity to be less than originally assessed based upon 

Respondent’s contentions that no copper wire was exposed, and that the area was not regularly 

traveled. Regarding Citation No. 9079127, the Secretary has found the gravity and negligence to 

be less than originally assessed based upon Respondent’s contentions that three jacks would 

continue to stabilize the bucket if the pin failed, and that the condition could have arisen at any 

time. Regarding Citation No. 9076446, the Secretary has found the gravity to be less than 

originally assessed based upon Respondent’s contentions that there were no problems with the 

ventilation or permissibility, and that the area was adequately rock dusted. Regarding Citation 

No. 9074941, the Secretary has found the gravity to be less than originally assessed based upon 

Respondent’s contention that the hose had been pressure tested and could withstand five times 

the operating pressure. Regarding Citation No. 9077570, the parties believe that the violation 

was issued under the incorrect standard, and the Secretary has found the gravity to be less than 

originally assessed based upon Respondent’s contentions that the shuttle car was not in operation 

42 FMSHRC Page 272
at the time of inspection, that it was not energized, and that a pre-operational exam had not been 

performed. 

ORDER 

WHEREFORE, it is ORDERED that Citation Nos. 9077364 and 9077374 are 

AFFIRMED, as issued; and that Citation Nos. 9077362, 9077375 and 9077376 are 

AFFIRMED, as modified. 

WHEREFORE, the Secretary’s Motions to Approve Partial Settlement are GRANTED, 

and it is further ORDERED that the Secretary MODIFY Citation Nos. 9076103 and 9074941 to 

reduce the level of gravity to “unlikely” and remove the “significant and substantial” 

designation; Citation No. 9079127 to reduce the level of gravity to “unlikely” and remove the 

“significant and substantial” designation, and reduce the degree of negligence to “low;” Citation 

No. 9076446 to reduce the level of gravity to “2 persons affected;” and Citation No. 9077570 to 

allege a violation of 30 C.F.R. § 75.517, and reduce the level of gravity to “unlikely” and remove 

the “significant and substantial” designation. 

WHEREFORE, it is further ORDERED that Consol Pennsylvania Coal Company, 

LLC, PAY a civil penalty of $6,155.00 within 30 days of the date of this Decision.13 

ACCORDINGLY, these cases are DISMISSED. 

 /s/ Jacqueline R. Bulluck 

Jacqueline R. Bulluck 

 Administrative Law Judge 

 

13 Payment should be made electronically at Pay.Gov, a service of the U.S. Department 

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

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

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

Numbers. 

42 FMSHRC Page 273
Distribution: 

Matthew Epstein, Esq., U.S. Department of Labor, Office of the Solicitor, The Curtis Center 

170 S. Independence Mall West, Ste. 630E, Philadelphia, Pennsylvania 19106 

epstein.matthew.r@dol.gov 

James McHugh, Esq., Hardy Pence, PLLC, 500 Lee Street, Suite 701, Charleston, West Virginia 

25301 

jmchugh@hardypence.com 

Kenneth J. Polka, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

631 Excel Drive, Suite 100, Mt. Pleasant, Pennsylvania 15666 

polka.kenneth@dol.gov 

Craig Aaron, CONSOL Energy Inc., 1000 CONSOL Energy Drive, Suite 100, Canonsburg, 

Pennsylvania 15317 

craigaaron@consolenergy.com 

42 FMSHRC Page 274
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

March 30, 2020 

KOMSAN (TROY) WOODEN, 

 Complainant, 

v. 

GENESIS ALKALI, LLC, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2018-0306-DM 

MSHA No. RM-MD-18-06 

Mine: Genesis Alkali @ WESTVACO 

Mine ID: 48-00152 

DECISION AND ORDER

Appearances: Komsan (Troy) Wooden, pro se, Rock Springs, Wyoming, Complainant 

Erik M. Dullea, Esq., Ephraim Hintz, Esq., Husch Blackwell LLP, 

Denver, Colorado, for Respondent 

Before: Judge L. Zane Gill 

I. STATEMENT OF THE CASE

This proceeding arises from section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977 (“Mine Act” or “Act”), 30 U.S.C. § 815(c)(3). Komsan (Troy) Wooden alleges that 

Respondent Genesis Alkali, LLC terminated his employment because he engaged in section 

105(c) protected activities. Respondent argues that Wooden has failed to meet his burden to 

establish a prima facie case because there is no causal nexus between the protected activity and 

the adverse action taken against him. Respondent argues that Wooden’s probation and 

termination was instead the result of unprotected workplace violations that would have justified 

adverse action irrespective of Wooden’s engagement in protected activities. 

For the reasons that follow, I find that Wooden engaged in section 105(c) protected 

activities and that his probation and termination constitute adverse action. However, I find that 

there is insufficient evidence to infer a causal nexus between Wooden’s protected activities and 

this adverse action. For this reason, I find that Wooden has failed to state a prima facie case for a 

section 105(c) discrimination claim. Even if Wooden were to have met his prima facie burden, 

ultimately, I also find that Respondent provided sufficient evidence to rebut the prima facie case, 

or, alternatively, presented a credible and sufficient affirmative defense that Wooden’s probation 

and termination were motivated by unprotected activities. 

42 FMSHRC Page 275
II. FACTUAL AND PROCEDURAL BACKGROUND1

Respondent is the operator of the Genesis at Westvaco Mine, an underground trona mine 

and surface milling facility located in Sweetwater County, Wyoming. (Tr. 38:19-38:21) 

Complainant Wooden was first employed by Genesis on June 3, 2013. (Wooden Dep. 45:8-

45:15) He worked as a maintenance mechanic at Genesis until December, 2017. During the 

course of his employment, Wooden worked at several different plants at Westvaco. On January 

5, 2017, Wooden began working at the Caustic Plant, where he remained until his employment 

was terminated in December, 2017. (Tr. 11:1-11:15; 13:4-13:6) 

 Wooden’s discharge from employment is the subject of this case. Wooden alleges a series 

of events which he claims shows that Respondent’s management harbored animus against him, 

animus that he claims led the Respondent to single him out for retaliatory probation and 

termination. Although Respondent’s management was aware that Wooden had participated in 

some protected activity, it does not agree that all of the instances Wooden claims were protected 

activity constituted protected activity in fact. In rebuttal, Respondent maintains that Wooden was 

fired for two instances of misuse of company vehicles. Following the first instance of 

unauthorized vehicle use, management placed Wooden on Decision Making Leave (DML) and 

negotiated a Last Chance Agreement (LCA) which provided that further violation of company 

rules or expectations would result in immediate discharge. (Tr. 454:3-10) Following the second 

vehicle incident barely four weeks later and after Wooden signed the Last Chance Agreement, 

management terminated Wooden without reference to any instances of protected activity. (Tr. 

481:3-16) Respondent contends that it would have fired Wooden for the unprotected activity 

alone, irrespective of his involvement in any protected activity. 

On January 16, 2018, Wooden filed a discrimination complaint with MSHA relating to 

his termination. On March 2, 2018, MSHA notified Wooden that there was insufficient evidence 

to support his section 105(c) allegations. Wooden initiated this case on April 3, 2018. The parties 

presented testimony and documentary evidence at a hearing in Rock Springs, Wyoming. 

Respondent submitted a brief, and Wooden submitted a short written statement, both of which 

were received and considered in preparing this decision. The parties stipulate that the 

Administrative Law Judge (“ALJ”) and the Commission have subject matter jurisdiction over 

this action pursuant to section 113 of the Mine Act, 30 U.S.C. § 823. 

1

 The findings of fact here and below are based on the record as a whole and my careful 

observation of the witnesses during their testimony. In resolving any conflicts in the testimony, I 

have taken into account the interests of the witnesses, or lack thereof, and consistencies, or 

inconsistencies in each witness’s testimony and between the testimonies of other witnesses. In 

evaluating the testimony of each witness, I have also taken into account his or her demeanor. 

Any perceived failure to provide detail about any witness’s testimony is not a failure on my part 

to consider it. The fact that some evidence is not discussed does not mean that it was not 

considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (ALJ is not required to discuss 

all evidence and failure to cite specific evidence does not mean it was not considered). I have 

also fully considered the contents of the official file, including the pre- and post-hearing 

submissions of the parties, and the exhibits admitted into evidence. 

42 FMSHRC Page 276
III. ANALYSIS 

The question before me is whether Wooden’s probation and termination were influenced 

by his involvement in “protected activity.” As part of his burden to make a prima facie showing 

of discriminatory intent, Wooden must show that his probation and termination were motivated, 

at least partially, by his engagement in protected activity under section 105(c). I must determine 

whether the evidence in total, including the inferential evidence, has sufficient circumstantial 

weight to satisfy his prima facie burden to show discrimination. 

To establish a prima facie case of discrimination under section 105(c)(1), Wooden must 

show: (1) that he engaged in a protected activity; and, (2) that the adverse action he complains of 

was motivated, at least in part, by that activity. Sec’y of Labor on behalf of Robinette v. United 

Castle Coal, Co., 3 FMSHRC 803 (Apr. 1981); Sec’y of Labor on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds sub 

nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d. Cir. 1981). The operator may 

rebut the prima facie case by showing “either that no protected activity occurred or that the 

adverse action was in no part motivated by the protected activity.” Turner v. Nat’l Cement of CA, 

33 FMSHRC 1059, 1064 (May 2011). The operator may also defend affirmatively by proving 

that, “it was also motivated by the miner’s unprotected activity and would have taken the adverse 

action for the unprotected activity alone.” Id. 

Wooden testified about several incidents preceding his probation and termination that 

created an impression in his mind that Genesis was singling him out. These incidents fall into 

two groups: Genesis’ reaction to Wooden’s protected activity, and events that do not relate to 

protected activity, yet may show animus. In evaluating these events and issues, I am aware that it 

is possible that the Respondent’s actions toward Wooden for unprotected activities may infer 

malice toward him that could have led to his being singled out for adverse treatment in those 

incidents that are legitimately considered “protected activity.” 

A. Wooden engaged in protected activity.

To satisfy the first prong of the Pasula-Robinette test for a prima facie case of 

discrimination, Wooden must show that he engaged in protected activity. Robinette, 3 FMSHRC 

at 803; Pasula, 2 FMSHRC at 2786. While section 105(c)(1) does not include the term 

“protected activity”, Commission cases have nevertheless found that the section defines certain 

protected activities. An individual covered by section 105(c)(1) engages in protected activity if 

(1) he “has filed or made a complaint under or related to this Act, including a complaint . . . of an 

alleged danger or safety or health violation[;]”, (2) he “is the subject of medical evaluations and 

potential transfer under a standard published pursuant to section 101[;]”, (3) he “has instituted or 

caused to be instituted any proceeding under or related to this Act or has testified or is about to 

testify in any such proceeding[;]”, or (4) he has exercised “on behalf of himself or others . . . any 

statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1). 

When a complainant asserts that he engaged in a protected activity that is not expressly 

enumerated under the Mine Act, the activity may still be protected if it furthers the purpose of 

the legislation. The legislative history of the Mine Act states that Congress intended “the scope 

of the protected activities be broadly interpreted by the Secretary.” S. Rep. No. 95-181 at 35 

(1977) (emphasis added). Moreover, the history notes that “the listing of protected rights 

42 FMSHRC Page 277
contained in [what eventually became section 105(c)(1)] is intended to be illustrative and not 

exclusive,” and that the section should be “construed expansively to assure that miners will not 

be inhibited in any way in exercising any rights afforded by the legislation.” Id. at 36. I find that 

there is ample evidence to demonstrate that Wooden engaged in a number of protected activities. 

1. MSHA Complaint and Racial Slur 

From January 2017 to April 2017, Clyde Muir was Wooden’s immediate supervisor at 

the Genesis Caustic Plant. (Tr. 12:19-12:23; 552:1-552:12) On April 3, 2017, MSHA inspector 

Ben Jones came on site and requested to speak to miners (not management) about some issues, 

including defective metal ladders. According to Wooden’s testimony, Muir wanted to participate 

in the meeting with the inspector, but Inspector Jones did not allow his involvement. (Tr. 13:24-

14:18) A few days later on April 6, 2017, Muir accused Wooden of calling MSHA and making a 

safety complaint. (Tr. 15:5-11; 279:3-280:4) The accusation related to an earlier incident when 

Wooden had reported that the steering and suspension on a company truck he had used to drive 

home a few days prior was defective. Muir raised the issue of the inspector’s visit by snidely 

suggesting to Wooden that if he wanted to complain about the truck, he should take it up with the 

MSHA inspector. (Tr. 14:19-15:11) During his site visit, Jones had given Wooden his business 

card with a contact number. Wooden used this number to contact Inspector Jones about Muir’s 

statements regarding the defective truck. In response, Jones returned to the site along with 

another inspector, Brett Stenson. (Tr. 15:11-17) 

Wooden also revealed Muir’s hostile reaction to Wooden’s report of the defective 

steering and suspension on a company truck to Genesis Safety Manager Andrea Walton. (Tr. 

15:11-17) Walton assured Wooden that he was within his rights to complain about Muir’s 

comments, reminded Muir that all miners have the right to contact MSHA, and then referred the 

matter to human resources. (Tr. 279:3-280:10) On April 30, 2017, approximately two weeks 

after Wooden complained about Muir, Genesis terminated Muir for, among other things,2

accusing Wooden of contacting MSHA and making derogatory comments about Wooden’s 

ethnicity. (Tr. 361:10-364:5; 375:17-376:5; 552:2-23; 579:8-20; 579:13-23; Wooden Dep. 

120:13-122:6; Ex. R-43, p.3) 

Wooden’s interactions with the MSHA investigators, including a possible hazard 

complaint to MSHA and reporting a defective ladder to an MSHA inspector, constitute protected 

activity, as does his interaction with the company’s safety manager. However, the evidence fails 

to support a finding that Wooden’s probation and ultimate termination for repeated unauthorized 

use of a company vehicle was in any way connected to this protected activity or to Muir’s 

missteps. 

2

 Muir made a statement to a group of miners that implied that a bad odor in the break 

room was caused by food brought in by Wooden. (Tr. 375:17-376:5) By extension, since it was 

widely known that Wooden was half Thai (his mother) (Tr. 13:21-22; 20:14-16), those who 

heard the comment understood it to be racially insulting. (Tr. 361:20-362:10; 363:12-20) 

42 FMSHRC Page 278
2. Magnet Lift and Management Response

On May 1, 2017, Maintenance Manager Rick Scorcz (Tr. 17:16-25) instructed Wooden 

and two other miners to lift a 275-lb. magnet into the bed of a pick-up truck. (Tr. 16:5-17) The 

men knew the magnet was heavy, but decided to lift it without machine help (Tr. 120:4-25), 

although they did use a length of pipe as a lifting pole. (Tr. 16:20-17:15) As they were lifting, 

Wooden had trouble because he was shorter than the other two men. (Tr. 121:2-8) The magnet 

shifted on the lift pole and Wooden strained a muscle in his right shoulder. (Tr. 16:20-17:15) 

Wooden reported his injury to interim supervisor Dorothy Yacobacci (Tr. 285:12-18) who told 

Wooden to go to Medcor to get his shoulder checked. (Tr. 18:4-16) Medcor did not treat 

Wooden’s shoulder. He was prescribed over-the-counter pain pills. (Tr. 18:20-19:1) Since there 

was no treatment given, Wooden’s injury was non-reportable. (Tr. 281:3-8) Wooden thought that 

was the end of it. (Tr. 18:19-19:3) 

The Safety Department at Genesis performs Root Cause Analysis meetings to identify the 

causes of miners’ injuries with the intent of preventing the recurrence of similar incidents. (Tr. 

267:24-268:4) On May 10, 2017, Wooden was summoned to an RCA meeting held in response 

to the magnet lift incident. (Tr. 19:4-6; 153:6-16) 3 Maintenance Director Andre Azevedo 

attended the meeting. Azevedo is a non-native English speaker (Brazilian). At one point, 

Azevedo attempted to make the point that he believed discipline for Wooden was appropriate, 

and because of his limited English skill, made an inappropriate analogy to his father’s use of 

corporal punishment accompanied by a gesture to his belt. (Tr. 176:18-176:24) Because of 

Azevedo’s inappropriate and inexcusable outburst, the RCA meeting was abruptly terminated by 

Scorcz.4

 Management regarded the outburst as a breach of protocol and took prompt and 

appropriate disciplinary action against Azevedo. Human Resources was directed to investigate 

the incident. Azevedo was quickly and vigorously reprimanded by the site’s vice president and 

informed that similar actions in the future would be “career limiting.” (Tr. 368:24-370:20) 

On May 18, 2017, Wooden and union steward, Casey Warne, were called into another 

meeting relating to the magnet incident. (Tr. 142:13-19) This meeting was not a fact-finding 

event. The company wanted to inform Wooden that they had looked into the Azevedo incident 

and taken swift corrective action. (Tr. 149:9-20) 

On May 26, 2017, Moeller returned from shoulder surgery (Tr. 130:24:131:2; 734:21-25) 

and called another meeting to do a full root cause analysis of the magnet incident. (Tr. 739:24-

741:3) On July 17, 2017, Wooden received a “first conference,” a low level of discipline, for his 

role in the magnet lift incident based on his failure to communicate to his co-workers that he was 

struggling to maintain control of the magnet as they lifted it into the bed of the pick-up truck. 

(Tr. 22:8-16; 255:12-256:24; 379:3-380:2; 592:4-22) His co-workers were not disciplined for 

their roles in the magnet incident, but received coaching and counseling. (Tr. 133:1-11; 380:3-

3

 A root cause analysis (RCA) is a process that allows the company to investigate 

workplace accidents in order to learn from them and promote safer conduct going forward. (Tr. 

149:21-150:4; 267:24-268:6; 275:10-19; 307:19-308:2; 401:15-402:1) 

4 Scorcz was filling in for Maintenance Area Manager Mike Moeller. (Tr. 21:10-19; 

183:5-10) 

42 FMSHRC Page 279
381:10; 616:7-617:10; Ex. R-19) Wooden believed that Genesis’ actions relating to the magnet 

incident constituted targeted harassment against him. (Tr. 108:10-109:23) 

Former Genesis HR Manager Kimberly Huber testified that first conferences were the 

lowest level of actual discipline that the company could impose and that their issuance was a 

“regular course of business [when] working to try to correct employee conduct ...” even though 

the union grieved most of the discipline actions. (Tr. 552:15-23; 554:20-555:9) No one in 

management, including Azevedo, argued that Wooden should be disciplined simply because he 

reported his shoulder strain or because of the argument with Azevedo during the RCA. (Tr. 

380:18-381:10) Even if Wooden had not reported a shoulder strain after lifting the magnet, had 

the Safety Department learned about the event and the height disparity causing a potential 

accident separately, Safety still would have conducted an RCA. (Tr. 414:23-415:9) The reason 

Wooden received a first conference was not because he reported an injury, but rather that he took 

an unnecessary risk by manually lifting the magnet when he was aware of the substantial weight 

of the magnet after lifting it onto a cart. (Tr. 746:18-747:6; Ex. R-62, p. 7) 

The union filed a grievance on behalf of Wooden in opposition to the first conference. 

(Tr. 554:7-554:10) The union later abandoned its grievance rather than taking the dispute to 

arbitration. (Tr. 554:5-554:17) In August 2017, Wooden filed a 105(c) complaint with MSHA. 

(R-62 pp.17-18) Wooden described the magnet lift incident to MSHA Special Investigator Ken 

Valentine during a subsequent interview. Wooden admitted the magnet was heavy enough that 

the miners felt they should use mechanical means to lift it. (Tr. 746:19-747:6; Ex.R-62 p. 7) 

Wooden’s statements to Valentine regarding the miners’ behavior and decisions were consistent 

with Moeller’s testimony and supported the issuance of a first conference to Wooden for his risk 

tolerance based on Wooden’s admitted awareness of the magnet’s weight. (Tr. 740:2-741:3)5

Wooden’s disclosure of his shoulder injury and his section 105(c) complaint filed with 

MSHA over his first conference constitute protected activity. However, the evidence fails to 

support a finding that Wooden’s probation and ultimate termination for repeated unauthorized 

use of a company vehicle was related to this protected activity in any way. 

3. Self-Direct Charter and Inspection Forms 

In the fall of 2017, Genesis was preparing to implement and comply with an MSHA 

revised rule on workplace examinations.6

 This “Self-Direct Charter” expected greater employee 

engagement and gave participants additional accountability, responsibility, and authority to make 

decisions in exchange for a wage increase. (Tr. 594:2-594:17) The company emphasized a 

company-wide policy of completing on-shift shop inspection forms. Wooden interpreted this 

5

 In its negative finding for Wooden’s 105(c) complaint, MSHA specifically stated 

that there was insufficient evidence to prove Genesis violated the Mine Act in its response to the 

magnet lift incident. (Wooden Dep. 188:14-189:4) 

6

 See Examinations of Working Places in Metal Non-Metal Mines, 83 Fed. Reg. 15055, 

15056 (Apr. 9, 2018) (describing the multiple extensions to the effective date on October 5, 

2017, from October 1, 2017 to June 2, 2018). 

42 FMSHRC Page 280
new policy focus as being directed at him and believed that he would be exposed to a new degree 

of scrutiny and perhaps discipline. As a result, Wooden was reluctant to sign forms related to the 

new policy and interpreted management’s efforts to get his signature as harassment. Specifically, 

Wooden believed that anyone participating in the new Self-Direct Charter should have additional 

training covering the requirements of the on-shift inspections, and that he had not been so 

trained. (Tr. 118:3-119:17) He was concerned that he might make a mistake in performing the 

on-shift inspections due to a lack of proper training that would expose him to possible discipline. 

(Tr. 24:9-24:18) However, Wooden had attended several training events on workplace 

examinations provided by Genesis in 2017. (Ex. R-1, p.2; Tr. 269:3-270:19) 

Further, Wooden placed significant emphasis on the alleged harassment he faced about 

shop inspection forms, but in his answers to the Court’s questions, he admitted he had never been 

disciplined for missing an item during a shop inspection. (Tr. 190:13-17) Wooden selectively 

invoked the F Crew Charter’s protections at the hearing and testified that he could make 

management-level decisions, but he did not expect to be held accountable for making these 

decisions. (Tr. 22:24-23:12; 29:16-30:6; 198:4-199:1) 

Wooden’s communications with management about the Self-Direct Charter constitute a 

protected activity. However, there is insufficient evidence to support a finding that Wooden’s 

probation and ultimate termination for repeated unauthorized use of a company vehicle was in 

response to this activity. 

B. Wooden was terminated for misusing company vehicles on two occasions. 

 Without doubt, some of the incidents Wooden testified about are properly considered 

protected activities. However, Genesis cites two instances of Wooden’s unprotected activity as 

justification for his probation and termination. Like most MSHA discrimination cases, this 

dispute centers on the question of motivation. An analysis of Wooden’s relevant unprotected 

activities follows. 

1. The Camper Incident 

The predicate for Wooden’s termination occurred on October 25, 2017, when he used a 

company vehicle to tow his camper from his home in Rock Springs, Wyoming, to a location in 

the back country where he liked to hunt. (Tr. 30:13-15; 349:19-350:9) Wooden did not have 

permission to use a company vehicle for personal use. He argued that such personal use was 

appropriate and in keeping with prior practice and company culture (Tr. 223:18-224:1; 561:17-

562:4), claiming that he was justified in using a company truck to tow his personal camper 

because other employees had used company vehicles for personal purposes in the past. (Tr. 

199:18-201:14; 223:18-224:1; 619:6-14; Ex. R-27) The evidence proves otherwise. (Tr. 443:12-

17) 

Wooden’s misuse of the vehicle was discovered when his manager, Mike Moeller, saw 

the company truck pulling a camper through town on October 26, 2017 (Tr. 440:17-441:21; Ex. 

R-25) and confirmed that Wooden had signed the truck out by reviewing vehicle check-out 

records. On November 1, 2017, the company started its normal process of investigating what had 

42 FMSHRC Page 281
happened. (Tr. 31:2-11) It was confirmed that Wooden had used a company truck to tow his 

personal camper, that he did not seek permission to do so (Tr. 489:10-21; 500:20-501:4; 645:24-

646:5; 654:25-655:13), that there was no company history or practice that would justify such use 

(Tr. 442:20-443:11), and that Wooden prevaricated during the fact-finding process with the 

intent to minimize his violation. (Tr. 603:7-25; 606:17-607:4; 607:17-608:11; 618:21-619:5; 

622:8-623:7; Ex. R-28) 

Genesis did not have a specific policy preventing this type of use by hourly employees 

(Tr. 201:20-204:3; 225:17-25; 446:14-448:20; 511:16-512:2), but it presented convincing 

evidence that no such prior practice had ever been tolerated. (Tr. 222:24-223:12; 242:11-25; 

243:1-3; 448:21-24; 704:20-24) In fact, another employee, Jarvis Koeven, had been put on 

Decision Making Leave (DML) probation prior to Wooden’s event for a single occurrence of 

essentially the same violation. (Tr. 471:13-472:2; 473:3-11; 559:23-560:5; Ex. R-44) Further, a 

supervisor Wooden claimed had previously allowed personal use of a company truck had been 

fired in part because he agreed to allow an employee to take a piece of company equipment for 

personal use. (Tr. 620:14-24) Instead of taking care to be certain that using a company vehicle 

for personal use was permissible, Wooden exhibited a reckless lack of judgment which was 

repeated weeks later. 

 During the fact-finding process for this camper-towing incident, there was discussion of 

simply firing Wooden rather than placing him on DML probation. (Tr. 559:6-19) Some members 

of management felt that this incident alone justified termination. (Tr. 614:12-19) Wooden was 

offered a DML instead of termination on November 2, 2017. (Tr. 31:2-11; 614: 9-11) The DML 

included a Last Chance Agreement (LCA). It was clear under the terms of the LCA that any 

violation of company expectations after that point in time could result in immediate termination. 

(Tr. 480:10-19; 531:21-532:3; Ex. R-30) The evidence put forth by Wooden does not support his 

excuse. However, this first instance of misuse of a company vehicle was resolved by the 

imposition of the last-chance discipline agreement (DML). 

2. The Overtime Event 

Wooden was fired for a second incident of unauthorized use of a company vehicle less 

than a month after being placed in a last-chance status for the unauthorized camper-towing event. 

(Tr. 481:3-16) On December 13, Wooden and a co-worker, Josh Holloway, were assigned to a 

project that involved repairing some drain line piping. (Tr. 57:20-58:9) Keith Herren, their 

supervisor for the project (Tr. 59:2-23), announced that there might be overtime for Wooden and 

Holloway’s project depending on various factors to be determined as the week progressed. (Tr. 

707:2-6; 707:24-708:1) By company practice, overtime had to be specifically approved by a 

supervisor. (Tr. 133:12-19; 501:5-502:11; 683:21-684:21; 689:25-690:14; Ex. R-37) A worker 

could not assume that there would be overtime. (Tr. 707:7-12) Despite knowing how overtime 

was announced and the way by which it must either be confirmed or allowed to lapse, Wooden 

took it upon himself to assume that he could work the pipe project into overtime. (Tr. 33:13-

38:1; 500:11-16) Close to the end of the day, Wooden talked to Herren, who asked him how the 

job was going. Wooden said nothing about working overtime to finish the project. (Tr. 635:12-

19; 675:5-14) Wooden testified that he assumed overtime would be approved, but he did not take 

42 FMSHRC Page 282
advantage of the opportunity to get clarification from Herren when the two of them spoke shortly 

before shift end. 

 When compared to coworker Holloway’s contrasting reaction to the same situation, 

Wooden’s intemperance is apparent. Holloway understood that overtime had not been approved. 

(Tr. 491:15-22) Nor did he fault Herren for his getting “whistle-bit” by losing track of the time 

and working past the end of his shift. (Tr. 660:6-9) Holloway accepted personal responsibility 

and had no intention of filing a grievance over the overtime issue. (Tr. 639:4-24; 659:5-11; 

713:11-17; Ex. R-39) In contrast, Wooden defended his actions by testifying that he expected 

Herren to state affirmatively that there would be no overtime and that saying nothing was not 

enough. (Tr. 673:12-20) 

After working past the end of his normal shift (Tr. 75:22-24; 659:9-20; 711:11-18), 

Wooden unilaterally decided to use a company truck to drive home. (Tr. 33:13-38:1; 115:21-

116:8; 353:4-354:13; 624:2-6; 645:24-646:13; 716:11-18; 747:24-748:3; Ex. R-31; Ex. R-33) He 

did not use any of the available options (Tr. 497:15-498:20; 499:11-21; 645:24-646:5; 654:14-

655:13; 685:1-6) to get last-minute management approval to drive the company vehicle home, 

even though he knew of the options and how to proceed. (Tr. 497:15-498:20; 624:2-6; 645:24-

646:13; 716:11-18; 747:24-748:3; Wooden Dep. 254:3-11; Ex. R-33; Ex. R-37) Puzzlingly, 

Wooden placed a call (unanswered) to Andy Martinez, his union president, instead of calling a 

management official for permission to drive the vehicle home. (Tr. 37:4-18; Tr. 654:25-655:13) 

He then sent a text message to Herren, not requesting permission to use a vehicle, but instead 

accusing Herren of dropping the ball by not expressly stating that there would be no overtime for 

the pipe project. (Tr. 714:10-715:2) Herren texted in reply that overtime was not authorized. 

Wooden then took Moeller’s assigned vehicle, signed it out at the guard station without 

authorization, and drove it home. (Tr. 498:21-499:4; Tr. 654:14-24; Ex. R-35) 

This action violated the last chance agreement from the camper towing incident only a 

month before. (Tr. 350:24-351:6; 481:3–16; 624:2-6; 645:24-646:13; 716:11-18; 747:24-748:3) 

Wooden claimed that he believed his supervisor wanted him to work overtime, and under normal 

overtime practices, would have authorized him to use a company vehicle to get home after the 

overtime work. But the evidence shows that the supervisor did not authorize overtime and that 

Wooden took a company vehicle home without permission and without even attempting to either 

confirm the overtime or obtain permission to use the vehicle. 

Wooden was terminated on December 20, 2017. (Ex. X; Ex. R-41) The overtime incident 

reveals no malice or overreach by management toward Wooden. When Wooden violated the 

vehicle use practices for a second time within a month, particularly considering that he knew that 

he was on disciplinary probation and that any disciplinary infraction could result in his 

immediate firing, the company acted appropriately and justifiably. Any prior friction felt by 

Wooden between himself and management is not evident in the two vehicle misuse incidents. 

42 FMSHRC Page 283
C. Wooden’s probation and termination were not motivated by his protected activity.

The second prong of the Pasula-Robinette test for a prima facie case of discrimination 

requires a showing that Genesis took an adverse action against Wooden that was motivated, at 

least in part, by Wooden’s protected activity. Robinette, 3 FMSHRC at 817–18; Pasula, 2 

FMSHRC at 2799–800, rev'd on other grounds sub nom. Consolidation Coal Co., 663 F.2d 1211 

(3d. Cir. 1981). This second prong of the Pasula-Robinette test may be further separated into two 

sub-questions: (1) whether there was an adverse action; and, if so, (2) whether there was a 

motivational nexus, at least in part, between the adverse action and the Complainant’s protected 

activity. 

1. Wooden’s probation and termination constitute adverse employment actions. 

The Commission has defined “adverse action” as “an action of commission or omission 

by the operator subjecting the affected miner to discipline or a detriment in his employment 

relationship.” 601 F.3d at 428 (quoting Sec'y on behalf of Jenkins v. Hecla-Day Mines Corp., 6 

FMSHRC 1842, 1847–48 (Aug. 1984)). The Commission has recognized that, while 

“discrimination may manifest itself in subtle or indirect forms of adverse action,” at the same 

time “an adverse action ‘does not mean any action which an employee does not like.”’ HeclaDay Mines Corp., 6 FMSHRC at 1848 n.2 (quoting Fucik v. United States, 655 F.2d 1089, 1096 

(Ct. Cl. 1981)). Consequently, where the action alleged to be adverse against the miner is not 

self-evidently so, such as a discharge or suspension would be, the Commission will closely 

examine the surrounding circumstances to determine the nature of the action. Id. at 1848. 

“Determinations as to whether an adverse action was taken must be made on a case-by-case 

basis.” Id. at 1848 n.2. The Commission has found that a discharge, demotion, or termination is 

an adverse employment action. See McKinsey, 36 FMSHRC at 1186 (citing 30 U.S.C. § 

815(c)(1)); see also Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478 (Aug. 1982), aff'd, 

770 F.2d 168 (6th Cir. 1985). Wooden was first placed on probation and ultimately terminated 

from his employment, and thus has shown that adverse action was taken against him. Genesis 

does not deny this. 

2. There was no motivational nexus between Wooden’s protected activity and 

the adverse action taken against him. 

Having established the existence of both a protected activity and an adverse action, 

Wooden must next show that the adverse action was motivated, at least in part, by the protected 

activity. Robinette, 3 FMSHRC at 817–18; Pasula, 2 FMSHRC at 2799–800, rev'd on other 

grounds sub nom. Consolidation Coal Co., 663 F.2d 1211 (3d. Cir. 1981). It is significant that 

hostility or animus on a person-to-person level is not enough to show the required motivational 

nexus. Management’s hostility must be shown to arise from the claimant’s involvement in 

protected activity. Turner reiterated the clear difference in the quantum of proof a claimant must 

provide to ultimately prevail in a discrimination case as opposed to the minimal showing 

required to establish the prima facie case. 33 FMSHRC 1059 (May 2011). “[T]o make out a 

prima facie case of discrimination, the [discriminatee] need only submit enough evidence so that 

the record could support an inference” that the termination resulted, at least in part, from 

protected safety complaints. Id. at 1066 (internal citations omitted) (emphasis in original). 

42 FMSHRC Page 284
The Commission has noted that “direct evidence of motivation [. . .] is rarely 

encountered; more typically, the only available evidence is indirect.” Chacon, 3 FMSHRC at 

2510. Such indirect, circumstantial evidence may include: (1) coincidence in time between the 

protected activity and the adverse action; (2) knowledge of the protected activity; (3) hostility or 

animus toward the protected activity; and, (4) disparate treatment. Id; Turner, 33 FMSHRC at 

1066; Matthew Bane v. Denison Mines (USA) Corp., now known as Energy Fuels Resources 

(USA), Inc., 39 FMSHRC 897, 917-18 (ALJ, Apr. 27, 2017). The more that hostility or animus is 

specifically directed toward the protected activity, the more probative it is of discriminatory 

intent. Id. In Bradley v. Belva Coal Co., with regard to the issue of motivation, the Commission 

found that “circumstantial evidence [...] and reasonable inferences drawn therefrom may be used 

to sustain a prima facie case.” 4 FMSHRC 982, 992 (June 1982) (citing Chacon, 3 FMSHRC at 

2510-12). “Furthermore, inferences drawn by judges are ‘permissible provided they are 

inherently reasonable and there is a logical and rational connection between the evidentiary facts 

and the ultimate fact inferred.”’ Colo. Lava, Inc., 24 FMSHRC 350, 354 (Apr. 2002) (citing MidContinent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984)). 

a. Coincidence in Time 

The Commission has stated that “[a]dverse action under circumstances of suspicious 

timing taken against the employee who is [a] figure in protected activity casts doubt on the 

legality of the employer’s motive [...].” Chacon, 3 FMSHRC at 2511. The Commission has also 

stated, “[W]e ‘appl[y] no hard and fast criteria in determining coincidence in time between 

protected activity and subsequent adverse action when assessing an illegal motive. Surrounding 

factors and circumstances may influence the effect to be given to such coincidence in time.”’ 

Hyles, 21 FMSHRC at 132 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 

1991)). Although improper motive has been found in cases with varying periods between the 

protected activity and the adverse action, improper motivation is often found “where the 

complainant proved that the operator knew of the protected activities and that only a short period 

of time elapsed between the protected activity and the discharge.” Sec’y of Labor on behalf of 

Baier v. Durango Gravel, 21 FMSHRC 953, 958 (Sept. 1999) (citing Sec’y of Labor on behalf of 

Knotts v. Tanglewood Energy, Inc., 19 FMSHRC 833, 837 (May 1997)). 

The evidence of timing does not support a finding or inference of a motivational nexus 

between Wooden’s protected activity and the adverse action taken against him. Genesis did not 

terminate Wooden until at least four months after the occurrence of Wooden’s most recent 

protected activity, the first MSHA investigation following Wooden’s first discrimination 

complaint. (Ex. R-62) Importantly, following this event, Wooden was not disciplined again until 

he used the company truck to tow his camper in November. The timing between Wooden’s 

misconduct leading to his November and December disciplinary events was exclusively in his 

control. The discipline dealt by management was based solely on his actions and involved two 

intervening incidents of misuse of company vehicles in the span of about a month. There is no 

evidence of Genesis committing any acts of hostility, animus, or disparate treatment toward the 

complainant’s protected activity during this four-month period. To the contrary, management 

provided sufficient evidence to show that its reactions to Wooden’s actions and behavior during 

this period resulted in fair and consistent treatment, even in instances where Genesis could have 

imposed additional discipline. 

42 FMSHRC Page 285
b. Knowledge of the Protected Activity 

The Commission has held that “an operator’s knowledge of the miner’s protected activity 

is probably the single most important aspect of a circumstantial case.” Baier, 21 FMSHRC at 

957 (citing Chacon, 3 FMSHRC at 2510). Whether the operator had knowledge of the protected 

activity may be “proved by circumstantial evidence and reasonable inferences.” Id. The 

Commission has also held that “discrimination based upon a suspicion or belief that a miner has 

engaged in protected activity, even though, in fact, he has not, is proscribed by section 

105(c)(1).” Moses, 4 FMSHRC at 1480. Additionally, the Commission has held that “a 

supervisor’s knowledge of the protected activity may be imputed to the operator where 

knowledgeable supervisors are consulted regarding the miner’s employment.” Sec’y of Labor on 

behalf of Pappas v. Calportland Co., 38 FMSHRC 137, 146 (Feb. 2016); see also Turner, 33 

FMSHRC at 1067–68 (imputing knowledge and animus of miner’s direct supervisors to official 

making disciplinary decision); Metric Constructors, Inc., 6 FMSHRC 226, 230 n.4 (Feb. 1984) 

(stating that “[a]n operator may not escape responsibility by pleading ignorance due to the 

division of company personnel functions.”). 

The Respondent does not dispute its knowledge of the events listed above. However, 

management’s knowledge of protected activity alone does not prove wrongdoing. Genesis 

admitted its knowledge of Wooden’s protected activity, but Wooden has the burden to prove that 

Genesis was motivated by this knowledge. Wooden failed to provide convincing evidence that 

knowledge of his protected activity motivated Genesis to place him on probation or terminate his 

employment for misuse of company vehicles. 

c. Hostility or Animus 

The Commission has held that “[h]ostility towards protected activity – sometimes 

referred to as ‘animus’ – is another circumstantial factor pointing to discriminatory motivation. 

The more the animus is specifically directed toward the alleged discriminatee’s protected 

activity, the more probative weight it carrie[s].” Chacon, 3 FMSHRC at 2511. Animus can take 

the form of action or inaction. Turner, 33 FMSHRC at 1069. Wooden claimed that Genesis was 

hostile towards his protected activity. However, there is no evidence of this alleged animosity. 

The examples Wooden provided at hearing were subjective and unconvincing. 

Wooden testified at the outset of the trial that harassment directed at him escalated 

following his complaint to the safety department about Clyde Muir. (Tr. 14:19-15:20) The 

testimony and documents related to Wooden’s complaints about Muir show that Genesis agreed 

with Wooden and took prompt corrective action against Muir. Andrea Walton immediately 

reminded Muir that Wooden had every right to speak to MSHA, and because Walton was 

troubled by Muir’s response, she notified HR, who in turn commenced an investigation into 

Muir’s conduct. (Tr. 15:5-11; 279:3-280:4; 279:3-280:10) Contrary to Wooden’s belief, the trial 

record shows that management did not fault Wooden for Muir’s behavior and eventual discharge. 

(Tr. 552:13-552:23) 

Genesis did not show hostility or animus in its response to the magnet lift incident. The 

Root Cause Analysis process was used to identify risky behavior and minimize the possibility of 

42 FMSHRC Page 286
injuries from similar events in the future. Genesis did not target Wooden in relation to Azevedo’s 

outburst during the RCA meeting. Rather, Genesis investigated Azevedo’s actions and 

determined that they fell short of what was expected of management personnel. (Tr. 375:6-

375:16) Wooden testified that Genesis called him into a fact-finding meeting on May 18, 2017, 

(Tr. 21:1-21:4), but in truth, the May 18 discussion was intended for Genesis to provide Wooden 

with feedback about its reaction to Azevedo’s outburst during the RCA meeting. (Tr. 368:24-

369:3) The testimony and documents related to Wooden’s complaints about Azevedo show that 

Genesis agreed with Wooden and took prompt corrective action against Azevedo. 

Wooden placed significant emphasis on the alleged harassment he faced about shop 

inspection forms, but in his answers to the Court’s questions, he admitted he had never been 

disciplined for missing an item during a shop inspection. (Tr. 190:13-190:17) The documents 

Genesis produced and the testimony supporting them did not reveal any animosity directed at 

Wooden. To the contrary, the evidence shows that the company tried to address Wooden’s 

concerns. Wooden’s testimony that Keith Herren harassed him, targeted him, and was untruthful 

is also contradicted by Wooden’s statements to MSHA Investigator Valentine during his August 

29, 2017 interview, in which Wooden made favorable comments about working with Herren at 

the time Wooden claimed he was being harassed. (Ex. R-62 pp. 11, 13-14) 

Another example of alleged harassment occurred on September 8, 2017, when Rick 

Skorcz and Andre Azevedo visited the Caustic Maintenance shop to ask about workplace exam 

forms. Wooden exited the forklift he was operating to get the forms, and Azevedo asked if it was 

permitted to leave the forklift running while unattended. (Tr. 27:17-28:16) Wooden stated it was 

an acceptable practice at Genesis to leave a forklift running while unattended as long as the 

Forklift’s tires are chocked. Wooden claimed that this question from Azevedo was harassment, 

but he failed to mention that he was not disciplined for leaving the forklift running, or that 

Tamara Fennell returned to tell him that Azevedo had checked the procedures and confirmed that 

Wooden was correct. (Wooden Dep. 150:8-151:19) 

The decision to issue Wooden a first conference letter after the magnet lifting incident 

was unrelated to any protected activity by Wooden. Wooden’s probation and termination were 

the result of bad judgment and a failure to follow protocols. Wooden knew he could face 

termination for any disciplinary infraction going forward. (Tr. 349:19-350:9; 461:23-462:11) 

Irrespective of whether the employer’s past actions toward Wooden could be characterized as 

responses to his protected activity, standing either alone or considered in the context of prior 

history, the second of these two incidents justifies the firing. 

The fact that the termination incident involved a second episode of unauthorized use of a 

company vehicle was considered an aggravating factor as the company considered its options. 

(Tr. 349:19-350:9; 356:20-357:12) Wooden did not put on any evidence to show that there was 

any confusion about what was required of him when he signed the DML. (Tr. 531:2-532: 3) 

Under the circumstances, one is left in disbelief that Wooden would jeopardize his job by 

assuming he had permission to work overtime and to use a company vehicle without permission 

a second time. 

42 FMSHRC Page 287
The evidence does not convince me that Genesis committed acts of hostility, animus, or 

disparate treatment in reaction to Wooden’s intervening protected activity. I conclude that there 

was nothing approaching a “continuous escalating series of wrongdoings” against Wooden. See 

Sec’y of Labor (MSHA) obo Pappas, v. CalPortland Co., 39 FMSHRC 718, 751 (ALJ, Mar. 31, 

2017) (rejecting the Secretary’s assertion that the operator’s actions were a continuous event). 

d. Disparate Treatment 

Disparate or inconsistent treatment is another indirect indicium of discrimination. 

“Typical forms of disparate treatment are encountered where employees guilty of the same, or 

more serious, offenses than the alleged discriminatee escape the disciplinary fate which befalls 

the latter.” Chacon, 3 FMSHRC at 2512. It has been recognized that “precise equivalence in 

culpability between employees” is not required in analyzing a claim of disparate treatment under 

traditional employment discrimination law. Pero, 22 FMSHRC at 1361, 1368 (citing McDonald 

v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (1976)). Rather, the complainant must 

simply show that the employees were engaged in misconduct of “comparable seriousness.” Id. at 

1368. 

Wooden did not present any evidence of disparate treatment by Genesis in connection 

with the magnet lift incident. The coaching and counseling given to Fausett and Gamper was 

justified by reasonable mitigating circumstances. The trial record shows that Genesis’ treatment 

of Wooden was consistent with its treatment of other miners in similar situations, before and 

after Wooden’s protected activity. In the eighteen months before Wooden received his first 

conference, Genesis issued first conferences to twelve other miners for risk-related behaviors. 

(Exs. R-45; R-79) In fact, the one example that Wooden produced during discovery as evidence 

of an unpunished injury incident actually resulted in a first conference for risk tolerance similar 

to Wooden’s discipline. (Tr. 434:21-436:14) Wooden received the first conference in reaction to 

his unsafe behavior, not his protected activity. (Tr. 553:16-554:4) Genesis’ actions toward 

Wooden relating to the magnet lift incident were an attempt to alter his behavior and avoid 

repeated hazardous conduct in the future. 

In the fall of 2017, Genesis was preparing for the effective date of MSHA’s revised rule 

on workplace examinations. When the company issued a new policy on completing shop 

inspection forms, Wooden interpreted it as being directed at him personally and believed that he 

would be exposed to a new degree of scrutiny and perhaps discipline. Wooden placed significant 

emphasis on the alleged harassment he faced about shop inspection forms, but in his answers to 

the Court’s questions, he admitted he had never been disciplined for missing an item during a 

shop inspection. (Tr. 190:13-190:17) In reality, the policy of completing on-shift shop inspection 

forms was a company-wide policy and could not have reasonably been adopted for the purpose 

of disciplining or punishing Wooden or enforced in such a way that would lead to disparate 

treatment against him. Wooden alleged that Herren harassed him and singled him out. Other 

witnesses’ testimony confirmed that Herren set the same level of expectations for the entire 

crew, as required by MSHA regulations and company procedures. (Tr. 125:25-126:5; Tr. 727:20-

731:16) 

42 FMSHRC Page 288
Wooden’s misuse of a company vehicle does not constitute a protected activity under the 

Mine Act, but it is telling that management’s response to this incident was fair and even-handed. 

Although Genesis could have immediately terminated Wooden’s employment for towing the 

camper, Tamara Fennell, the HR Business Partner for Maintenance, and Kimberly Huber 

advocated for issuing a DML to Wooden to maintain consistency with its previous discipline. In 

2011, Genesis employee Jarvis Koeven had driven a company truck to Salt Lake City without 

authorization. Genesis issued Koeven a DML that included an unpaid suspension and a last 

chance agreement for his misuse of a company vehicle. (Tr. 559:23-560:5)7

 Like Wooden, 

Koeven did not comply with the terms of his last chance agreement and was discharged. (Tr. 

469:15-470:22; 560:6-561:8) 

The company’s disciplinary records refute Wooden’s and his union’s (reluctant and 

unsubstantiated) claims that Wooden was targeted. Wooden failed to provide evidence that he 

was treated differently than other employees in similar situations. I cannot find that Wooden was 

the recipient of disparate treatment. 

e. Opportunities to Impose Discipline 

After Wooden received the first conference for the magnet lifting even, he was not 

disciplined again until November, when he towed his camper using the company truck. (Tr. 

748:8-749:19; 190:1-20) Genesis had additional opportunities to impose formal discipline, but 

opted for coaching and counseling instead. (Tr. 26:1-22; 563:24-564:16; 696:24-698:6; 190:1-

20) 8 Despite Genesis knowing about Wooden’s protected activity, when Wooden’s subsequent 

conduct in the second half of 2017 qualified for discipline, including potential termination, 

Genesis took a different approach. Wooden could have been disciplined for multiple events: (i) 

failing to properly chock a forklift’s tires after he finished operating the forklift; (ii) forgetting to 

wear rubber boots while working in the caustic area; and, (iii) throwing away an empty plastic 

tool case for a power tool that had been in a Genesis truck Wooden was assigned to drive home 

after working overtime. (Tr. 566:15-22; 696:24-697:2; 26:1-27:6; Ex. R-22) Instead of 

disciplining Wooden for these instances, Keith Herren provided non-disciplinary coaching and 

counseling in an attempt to improve Wooden’s behavior.9

Genesis also exercised leniency with Wooden in October, 2017, after he used the 

company vehicle to tow his personal camper. (Tr. 454:24-455:6; 603:10-23; Ex. R-27) Genesis 

could have terminated Wooden at that time. (Tr. 465:23-466:15) Firing Wooden would have 

7

 Koeven had received another DML in 2009 for taking a company truck home without 

authorization, but the two-year sunset provision for that DML had expired approximately one 

month before Koeven drove a second truck to Salt Lake City. 

8

 The intervening events were not discipline, as defined by Genesis’ policy and practice, 

even though Wooden and other witnesses perceived them as such. (Tr. 440:1-12) In the final 

analysis, the intervening events resulted in Wooden being treated in an evenhanded and 

consistent manner. 

9

 Wooden saw this counseling as a form of harassment. (Tr. 26:1-27:5) 

42 FMSHRC Page 289
arguably been in compliance with the company’s Positive Performance Program,10 particularly 

since Wooden initially lied about his misuse until he realized Genesis already knew the truck had 

been seen pulling a camper. (Tr. 602:22-603:9; Ex. R-27) Although some members of 

management considered this a termination-level offense, management elected to issue him a 

DML. (Tr. 615:5-616:6) 

IV. RESPONDENT’S REBUTTAL 

Under section 105(c), 30 U.S.C. § 815(c), the operator may rebut the miner’s prima facie 

case by showing either that no protected activity occurred or that the adverse action was in no 

part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800; Turner, 33 FMSHRC 

at 1064. Genesis denies that Wooden was terminated in violation of the Mine Act, and argues 

instead that any adverse action was not motivated in any part by protected activity. While I have 

already found that Wooden failed to provide sufficient evidence to meet his prima facie burden, I 

will nevertheless address the Respondent’s rebuttal. 

Wooden engaged in several instances of protected activity. The Respondent argues that 

Wooden was terminated, not for any reason related to that protected activity, but for his misuse 

of a company vehicle on two occasions. Based on the evidence available to me, I find that 

Wooden has failed to demonstrate that his probationary status and the termination of his 

employment were related to his protected activity. Wooden alleged that the discipline he 

received was not fair (Tr. 507:18-25), but that is not an element of a section 105(c) claim. The 

company’s decisions were valid business decisions, consistent with long-standing policies and 

the collective bargaining agreement with the union. 

In analyzing a mine operator’s asserted justification for taking adverse action under the 

Pasula-Robinette framework, the inquiry is limited to whether the reasons are based in fact, 

whether they actually motivated the operator’s actions, and whether they would have led the 

operator to act even if the miner had not engaged in protected activity. Turner, 33 FMSHRC at 

1073. The ALJ may not impose his own business judgment as to an operator’s actions, Chacon, 

3 FMSHRC at 2516-517, and he may not substitute his own justification for disciplining a miner 

over that offered by the operator. Sec’y of Labor on behalf of McGill v. U.S. Steel Mining Co., 23 

FMSHRC 981, 989 (Sep. 2001). While the intermediate steps of the Pasula-Robinette test 

include shifting burdens, the ultimate burden of persuasion on the question of discrimination 

remains with the complainant. Robinette, 3 FMSHRC at 818 n.20. 

Respondent’s stated reason for terminating Wooden was plausible and not pretextual for 

the following reasons. First, Genesis made the business decision to terminate Wooden for 

misusing a Genesis truck twice in four weeks. Second, Wooden could have been discharged for 

the first misuse alone. (Tr. Tr. 606:24-607:4; 216:17-216:23; Ex. R-27) Wooden knew the Last 

Chance Agreement came with a probationary period in which Genesis could terminate him for 

10 Genesis has a progressive disciplinary system, known as the Positive Performance 

Policy (“PPP”). (Tr. 341:10-341:22) As an alternative to the PPP, Genesis supervisors may 

engage in coaching and counseling of their employees to encourage them to alter subpar 

behaviors without resorting to formal discipline. (Tr. 339:13-339:21) 

42 FMSHRC Page 290
any misconduct that would normally result in discipline. Third, only four weeks after agreeing to 

the LCA, Wooden used another truck without authorization. Not only was this unprotected 

activity, it was substantially similar to his previous misconduct. The proximity in time between 

his two instances of vehicle misuse stunned Genesis’ HR team, which could not believe Wooden 

committed the same unprotected activity he engaged in to receive his DML a second time. (Tr. 

624:7-13) Given these facts, I find that Genesis’ reason for terminating Wooden is plausible and 

not pretextual. 

V. RESPONDENT’S AFFIRMATIVE DEFENSE 

If the operator cannot rebut the prima facie case, it may nevertheless defend affirmatively 

by proving that it was motivated by the miner’s unprotected activity alone. It is not enough under 

section 105(c) for the operator to show that the miner deserved to be fired for engaging in the 

unprotected activity. The operator must show that it did, in fact, consider the miner deserving of 

discipline for engaging in the unprotected activity alone and that it would have disciplined him in 

any event. See Robinette, 3 FMSHRC at 817–18; Pasula, 2 FMSHRC at 2799–800; see also E. 

Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642–43 (4th Cir. 1987) (applying PasulaRobinette test). 

The Commission has articulated several indicia of legitimate non-discriminatory reasons 

for an employer's adverse action. These include evidence of the miner's unsatisfactory past work 

record, prior warnings to the miner, past discipline consistent with that meted out to the 

complainant, and personnel rules or practices forbidding the conduct in question. Bradley, 4 

FMSHRC at 993. The Commission has explained that an affirmative defense should not be 

“examined superficially or be approved automatically once offered.” Haro v. Magma Copper 

Co., 4 FMSHRC 1935, 1938 (Nov. 1982). In reviewing affirmative defenses, the judge must 

“determine whether they are credible and, if so, whether they would have motivated the 

particular operator as claimed.” Bradley, 4 FMSHRC at 993. The Commission has stated that, 

“pretext may be found . . . where the asserted justification is weak, implausible, or out of line 

with the operator's normal business practices.” Sec'y on behalf of Price v. Jim Walter Res., Inc., 

12 FMSHRC 1521, 1534 (Aug. 1990). 

As discussed above, I find that Genesis discharged Wooden in response to Wooden’s 

unprotected activities. However, even assuming that Wooden’s protected activity partially 

motivated Genesis to issue the DML for towing his camper, and then discharge Wooden for once 

again using a company truck without authorization four weeks later, Genesis still did not violate 

section 105(c) of the Mine Act because it proved each element of its affirmative defense. As 

previously discussed, there is sufficient evidence to find that: (i) Genesis would have issued 

Wooden a DML and invoked the provisions of the Last Chance Agreement in the absence of his 

protected activity; (ii) Genesis was motivated by Wooden’s repeated misuse of company 

vehicles; and (iii) these actions alone supported the discipline he received. I find that it is 

reasonable to terminate an employee under these circumstances. 

42 FMSHRC Page 291
VI. CONCLUSIONS OF LAW 

Wooden failed to establish a prima facie case of discrimination under section 105(c) of 

the Mine Act. The operator’s stated reasons for discharging Wooden were plausible and not 

pretextual. Genesis affirmatively defended its decision to place Wooden on probation and 

ultimately terminate his employment. Therefore, based on a thorough review of the record, I 

conclude that Wooden failed to prove by a preponderance of the evidence that either the 

probation or the termination constituted discrimination in violation of section 105(c) of the Act. 

VII. ORDER 

Komsan (Troy) Wooden’s complaint and this proceeding are DISMISSED. 

 /s/ L. Zane Gill 

L. Zane Gill 

Administrative Law Judge 

Distribution: 

Komsan (Troy) Wooden, 14 Greve Circle, Rock Springs, WY 82901 

komsanwooden@yahoo.com

Erik Dullea, Esq., Ephraim Hintz, Esq., Husch Blackwell LLP, 1801 Wewatta St, Ste 1000, 

Denver, CO 80202 erik.dullea@huschblackwell.com ephraim.hintz@huschblackwell.com 

/kb 

42 FMSHRC Page 292
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

March 31, 2020 

 

DECISION AND ORDER AFTER REMAND

Appearances: Andrew Tardiff, Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, and 

Willow E. Fort, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee for Petitioner 

Respondent: Travis W. Vance, Esq., and Collin G. Warren, Fisher & Phillips LLP, 

Charlotte, North Carolina, for Respondent 

Before: Judge McCarthy 

I. Statement of the Case 

This case is before the undersigned after a second remand from the Commission upon a 

Petition for Assessment of a Civil Penalty under section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815(d) (the Act). Citation No. 8723677 remains at issue and 

charges scaffold-erection subcontractor Sunbelt Rentals, Inc. (Sunbelt or Respondent) with a 

highly negligent and significant-and-substantial section 104(a) violation of 30 C.F.R. 

§ 56.18002(a) after a non-fatal accident occurred on January 8, 2013. At the time of the accident, 

§ 56.18002(a) provided that “[a] competent person designated by the operator shall examine each 

working place at least once each shift for conditions which may adversely affect safety or health. 

The operator shall promptly initiate appropriate action to correct such conditions.” 30 C.F.R. § 

56.18002(a) (2013). MSHA proposed a specially-assessed civil penalty of $51,900. 

The sole issue currently on remand before the undersigned is the assessment of the 

penalty for Citation No. 8723677. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

SUNBELT RENTALS, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. VA 2013-0291 

A.C. No. 44-00068-316647 

Mine: Roanoke Cement Company 

42 FMSHRC Page 293
II. Procedural Background 

As the facts and history of this case are detailed in Sunbelt Rentals, Inc., 40 FMSHRC 

573 (April 2016) (ALJ) (Sunbelt III), only the relevant facts will be discussed here. The 

undersigned initially issued an order granting the Respondent’s Cross-Motion for Summary 

Decision. Sunbelt Rentals, Inc., et al., 35 FMSHRC 3208 (Sept. 2013) (ALJ) (Sunbelt I). On July 

12, 2016, the Commission vacated the undersigned’s summary decision in favor of all 

Respondents and remanded all three dockets. Sunbelt Rentals, Inc., et al., 38 FMSHRC 1619 

(July 2016) (Sunbelt II).1 

After holding a hearing in Roanoke, Virginia, on May 23-24, 2017—and after careful 

review of the record, and the parties’ post-hearing briefs, and accepting the Commission’s 

remand as the law of the case—the undersigned found, as relevant here, that Sunbelt violated 

30 C.F.R. § 56.18002(a) by failing to adequately examine the seventh level of the preheat tower 

at least once during the January 8, 2013 shift, and by failing to promptly initiate corrective action 

to remove a falling-material hazard. The undersigned further found that the violation resulted 

from Sunbelt’s high negligence. Sunbelt III, 40 FMSHRC at 603-05. 

The undersigned assessed a penalty of $23,750 based upon the consideration of the 

section 110(i) penalty criteria and the deterrent purposes of the Act. 

The Respondent appealed Sunbelt III to the Commission. As relevant here, the 

Respondent challenged the findings in Sunbelt III of a violation and that any violation was 

significant and substantial and resulted from high negligence. 

The Commissioners issued four opinions: one by Commissioners Young and Althen, 

presented as the majority opinion; one by Commissioner Jorden, concurring, in part, and 

dissenting, in part; one by Chairman Rajkovich, dissenting in part, concurring in part, and joining 

in result the opinion of Commissioners Young and Althen only on the issue of negligence; and 

one by Commissioner Traynor, concurring with Commissioner Jordan’s opinion. Sunbelt 

Rentals, Inc., 2020 WL 508744 (Jan. 2020) (Sunbelt IV). The initial question before the 

undersigned is whether, given the fractured opinions of the Commissioners, the undersigned has 

any further jurisdiction in this matter. 

 Under Commission Procedural Rule 69, a judge’s jurisdiction “terminates when his 

decision has been issued.” 29C.F.R. § 2700.69(b). Jurisdiction may be returned to a judge after a 

remand from the Commission. The contours of such a remand provide the sole and specific 

issues that a judge may consider on remand. Boswell v. Nat’l Cement Co., 15 FMSHRC 935, 937 

(June 1993). As such, it is paramount for a judge on remand to determine what, if any, majority 

opinion dictates how to proceed. 

 The Supreme Court has stated that “[w]hen a fragmented Court decides a case and no 

single rationale explaining the result enjoys the assent” of a majority, “the holding of the Court 

may be viewed as that position taken by those Members who concurred in the judgments on the 

1

 Prior to a hearing after the first remand, two of the three dockets settled, leaving Sunbelt 

the sole Respondent. 

42 FMSHRC Page 294
narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. 

Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ). The Court 

of Appeals for the District of Columbia has refined the Marks rule by defining one opinion as 

“narrower” than another “only when one opinion is a logical subset of other, broader opinions” 

and ruling that “the narrowest opinion must represent a common denominator of the Court’s 

reasoning; it must embody a position implicitly approved by” a majority. King v. Palmer, 950 

F.2d 771, 781 (D.C. Cir. 1992). The Supreme Court has also held that decisions of administrative 

agencies “must be set forth with such clarity as to be understandable” because a reviewing court 

“must know what a decision means before the duty becomes [that of the reviewing court] to say 

whether it is right or wrong.” Chenery Corp. v. Fed. Water & Gas Corp., 332 U.S. 194, 195-97 

(1947) (quoting United States v. Chicago, M., St. P. & P.R. CO, 294 U.S. 499, 511 (1935). 

 A brief analysis of the opinions in Sunbelt IV, as relevant here, is in order. In their 

opinion, Commissioners Young and Althen affirmed the finding of a violation and that finding 

that it was significant and substantial. However, Commissioners Young and Althen analyzed the 

evidence and found that “[t]he record simply does not support the notion that [an examiner-agent 

of Sunbelt] showed an aggravated lack of care.” Sunbelt IV, 2020 WL 508744, at *11 (opinion of 

Commissioners Young and Althen). Commissioners Young and Althen concluded that the 

violation “was a result of the operator’s ordinary negligence.” Id. at *14. Consequently, 

Commissioners Young and Althen voted to remand this matter “for a reassessment of the 

penalty” based on ordinary negligence. Id. 

 Commissioner Jordan, concurring, in part, and dissenting, in part, ruled that there was 

substantial evidence to support a finding of high negligence and voted to uphold the 

undersigned’s findings in Sunbelt III. 

 Dissenting in part and concurring in part, Chairman Rajkovich found that there was “no 

substantial evidence of a violation” and stated that he would reverse on those grounds. Id. at *17 

(opinion of Chairman Rajkovich). However, Chairman Rajkovich also stated that, in the 

alternative, he joined Commissioners Young and Althen in finding “the lower level of 

negligence.” Id. at *21. Specifically, Chairman Rajkovich stated that “given [his] view that there 

was no violation, it would be wholly inconsistent for [him] to find that the record supports the 

notion of an aggravated lack of care, warranting a label of ‘high negligence.’” Id.

 Finally, Commissioner Traynor wrote a separate opinion concurring with Commissioner 

Jordan. In his opinion, Commissioner Traynor opined that, because of the inconsistency between 

Chairman Rajkovich’s two positions, there was no valid majority on the issue of negligence. 

 Taking all of these separate opinions together, there is no common rationale for a finding 

of ordinary negligence. The opinion of Commissioners Young and Althen clearly states a 

rationale for finding ordinary negligence; however, Chairman Rajkovich does not join in that 

reasoning, only in the result. Compare id. at *11-14 (opinion of Commissioners Young and 

Althen) (stating the reasoning for finding ordinary negligence in Part III E), with id. at *21 

(opinion of Chairman Rajkovich) (joining Part III A and B but not E of the opinion of 

42 FMSHRC Page 295
Commissioners Young and Althen).2

 Both Commissioners Jordan and Traynor would have 

upheld the undersigned’s finding of high negligence. Without a common rationale, there is no 

rationale to form as the basis for precedential effect in other cases. United States v. Davis, 825 

F.3d 1014, 1016 (9th Cir. 2016). 

 As there is no common rationale, the next question must be whether, without a common 

rationale, there is a valid majority remanding the matter—and returning jurisdiction—to the 

undersigned. However, even without a common rationale, a lower court is still bound by the 

specific result of a higher court’s decision. See, e.g., id. (“[W]here we can identify no rationale 

common to a majority of the Justices, we are bound only by the result.”); King v. Palmer, 950 

F.2d at 784. In Sunbelt IV, the result, at least, is clear: Chairman Rajkovich joined the opinion of 

Commissioners Young and Althen in the result—a remand solely on the issue of the penalty with 

ordinary negligence. Sunbelt IV, 2020 WL 508744, at *16 (opinion of Chairman Rajkovich) (“I 

concur in result only in the opinion of Commissioners Young and Althen.”). Accordingly, the 

undersigned remains bound by the majority result on ordinary negligence. 

 Consequently, although lacking a common rationale, a majority of the Commission 

validly remanded this case to the undersigned solely to decide the amount of the penalty given 

ordinary negligence. 

III. Penalty Assessment 

It is well established that the Commission Administrative Law Judges assess civil 

penalties de novo for violations of the Act. Section 110(i) of the Act delegates to the 

Commission the “authority to assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). 

The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). 

When an operator contests the proposed penalty, the Secretary petitions the Commission to 

assess the proposed penalty. 29 C.F.R. § 2700.28. The Act requires, that “in assessing civil 

monetary penalties, the Commission [ALJ] shall consider” six statutory penalty criteria: 

[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 

2

 Chairman Rajkovich’s opinion, while a pragmatic decision to craft a majority result on 

the issue of negligence, adopts two seemingly contradictory positions. As an initial position, 

Chairman Rajkovich finds that there was no violation; but as an alternate position, Chairman 

Rajkovich finds that, “if [t]here [w]as a [v]iolation, it was [d]ue to [n]o [m]ore than [o]rdinary 

[n]egligence.” Sunbelt IV, 2020 WL 508744, at *21 (opinion of Chairman Rajkovich). As 

Chairman Rajkovich correctly notes, “[w]hen there is not a finding of violation, the issue of 

negligence is never reached.” Id. Chairman Rajkovich also correctly notes that, “given [his] view 

that there was no violation, it would be wholly inconsistent for [him] to find that the record 

supports the notion of an aggravated lack of care, warranting a label of ‘high negligence.’” Id.

However, it is equally inconsistent to find any level of negligence, including ordinary 

negligence, given Chairman Rajkovich’s position that there was no violation. 

42 FMSHRC Page 296
person charged in attempting to achieve rapid compliance after 

notification of a violation. 

30 U.S.C. § 820(i). 

In keeping with this statutory requirement, the Commission has held that “findings of fact 

on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co.,

5 FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). Once factual findings on 

the statutory penalty criteria have been made, a judge’s penalty assessment for a particular 

violation is an exercise of discretion, which is bounded by proper consideration of the statutory 

criteria and the deterrent purposes of the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 

(May 2000). In exercising this discretion to determine the amount of a penalty, the Commission 

has recognized that a judge is not bound by the penalty proposed by the Secretary. Spartan 

Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). 

As the Commission only changed the level of negligence found in Sunbelt III, the 

findings and analysis from that decision largely stand with the notable exception of substituting 

the undersigned’s finding and analysis in Sunbelt III of high negligence with the Commission’s 

findings and “analysis” of ordinary negligence. 

When determining a proper assessment for this violation, the undersigned considered: 

1) the Respondent’s three prior violations of this standard in the 15 months prior to the accident;

2) the Respondent’s size as a small contractor who worked only 26,667 hours in mines in 2012;

3) the Respondent’s ordinary level of negligence; 4) the presumption—given the Respondent’s

failure to introduce any specific evidence to support or substantiate its inability to pay or any

adverse impact on its ability to remain in business—that the penalty will not have an effect on

the Respondent’s ability to continue in business; 5) the high level of gravity of the significant

and substantial violation; and 6) the timely abatement made in good faith.

Based upon the undersigned’s consideration of the section 110(i) penalty criteria and the 

deterrent purposes of the Act, the undersigned assesses a penalty of $17,300.00. This amount is 

the result of an independent determination by the undersigned of the statutory criteria and a 

penalty amount that would respond to the seriousness of the violation and would deter future 

violations. The undersigned did not use the Secretary’s proposed specially assessed penalty as a 

baseline or starting point for this determination. American Coal Co. v. FMSHRC, 933 F.3d 723, 

728 (D.C. Cir. 2019). 

42 FMSHRC Page 297
IV. ORDER

Citation No. 8723677 is MODIFIED by the Commission’s decision in Sunbelt IV to 

reduce the level of negligence from high to ordinary. Respondent, Sunbelt Rentals, Inc., is 

ORDERED to pay a total civil penalty of $17,300.00 within 30 days of the date of this Decision 

and Order.3

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

3

 Payment should be sent to: Pay.gov, a service of the U.S. Department of the Treasury, 

at https://www.pay.gov/public/form/start/67564508 or, alternately, Mine Safety & Health 

Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 

63179-0390. 

42 FMSHRC Page 298
Distribution: 

Charyl C. Blair-Kijewski 

U.S. Department of Labor 

Office of the Solicitor 

201 12th Street South 

Suite 401 

Arlington, VA 22202 

Ali Beydoun 

U.S. Department of Labor 

Office of the Solicitor 

201 12th Street South 

Suite 401 

Arlington, VA 22202 

April Nelson 

U.S. Department of Labor 

Office of the Solicitor 

201 12th Street South 

Suite 401 

Arlington, VA 22202 

Travis W. Vance 

Fisher & Phillips LLP 

227 West Trade Street 

Suite 2020 

Charlotte, NC 28202 

R. Henry Moore

Fisher & Phillips LLP

Six PPG Place

Suite 830

Pittsburgh, PA 15219

42 FMSHRC Page 299
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9949 

March 31, 2020 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

THE HARRISON COUNTY COAL 

 COMPANY, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2020-0203 

A.C. No. 46-01318-505388 

Mine: Harrison County Mine 

ORDER ACCEPTING APPEARANCE 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY

Before: Judge McCarthy 

 This case is before the undersigned upon a 101-citation Petition for the Assessment of 

Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(d). This docket was created prior to the policy of splitting dockets with excessive amounts 

of citations. Under the current policy, this docket would not have been accepted in its current, 

voluminous state. 

 The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a 

notice of limited appearance with the penalty petition. It is ORDERED that the CLR be accepted 

to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 1994). 

 The CLR has filed a motion to approve settlement proposing a reduction in the penalties 

from $59,978.00 to $58,109.00. The CLR states that Citations No. 9185453, 9186421, and 

9187211 have been vacated. The Secretary’s discretion to vacate a citation or order is not subject 

to review. E.g., RBK Constr. Inc., 15 FMSHRC 2099 (Oct. 1993). Citation No. 9186521 remains 

unchanged, but the CLR justifies the reduction in penalty by stating there is a legitimate factual 

and legal dispute regarding gravity and negligence. The CLR also requests that Citation No. 

9186420 be modified to reduce the level of negligence from moderate to low. 

The Respondent’s parent company, Murray Energy Holdings Co., filed for Chapter 11 

Bankruptcy Protection on October 29, 2019, in the United States Bankruptcy Court for the

42 FMSHRC Page 300
Southern District of Ohio, In re Murray Energy Holdings Co., Case No. 19-56885. As stated in 

the settlement motion, some of the citations in this docket are subject to the bankruptcy 

proceeding, while other citations are not. As stated below, the Respondent will pay the citations 

in accordance with terms of the settlement agreement. 

Section 362(a) of the Bankruptcy Code provides for an automatic stay of the 

commencement or continuation of any administrative or judicial proceedings against a Chapter 

11 Bankruptcy petitioner. 11 U.S.C. § 362(a). An exception to this stay, however, is granted by 

§362(b)(4), which exempts from the automatic stay any proceeding by a governmental unit to 

enforce its police or regulatory power. 11 U.S.C. §362(b)(4). This exception has been applied to 

cases seeking equitable relief and cases concerning monetary damages or penalties. See In re 

Commerce Oil Co., 847 F.2d 291, 297 (6th Cir. 1988); United States v. Nicolet, Inc., 857 F.2d 

202, 208-10 (3d Cir. 1988); U.S. v. Oil Transport Co., Inc., 172 B.R. 834 (Bankr. E.D. La. 

1994); U.S. v. Energy Intern,, Inc., 19 B.R. 1020 (Bankr. S.D. Ohio 1981) (holding that action by 

the United States to collect a civil penalty assessed by the Department of the Interior, Office of 

Surface Mining, against debtor, for numerous violations of Surface Mining Control and 

Reclamation Act of 1977, was one to enforce its regulatory power and thus not stayed by the 

debtor's filing of a bankruptcy petition)). 

The Commission has held that the Secretary of Labor, Department of Labor, and MSHA 

are “government units” within the meaning of 362(b)(4), as the Secretary of Labor brings civil 

penalty proceedings in an effort to effectuate and enforce the mandatory safety standards of the 

Mine Act. Big Laurel Mining Corp., 37 FMSHRC 1997, 1997-99 (Sept. 2015); Hidden Splendor 

Res., Inc., 35 FMSHRC 1548, 1549-50 (June 2013); Hoist Excavating, Inc. ̧17 FMSHRC 101, 

102 (Feb. 1995); Jim Walter Res., Inc., 12 FMSHRC 1521, 1530 (Aug. 1990). 

Although the entry of a money judgment by a governmental unit, if related to its police or 

regulatory powers, is not affected by the automatic stay, actual enforcement of such judgment 

must take place through the bankruptcy court. In re Weller, 189 B.R. 467, 471 (Bankr. E.D. Wis. 

1995); NLRB v. Continental Hagen Corp., 932 F.2d 828, 834 (9th Cir.1991); NLRB v. P.I.E. 

Nationwide, Inc., 923 F.2d 506 (7th Cir.1991); Eddleman v. U.S. Dept. of Labor, 923 F.2d 782 

(10th Cir.1991); In re Tauscher, 7 B.R. 918 (Bankr. E.D. Wis. 1981). 

 The undersigned considered the representations and documentation submitted in this 

case, and the undersigned concludes that the proffered settlement is fair, reasonable, appropriate 

under the facts, and protects the public interest under The American Coal Co., 38 FMSHRC 

1972, 1976 (Aug. 2016), and is appropriate under the criteria set forth in § 110(i) of the Act. The 

settlement amounts are as follows: 

42 FMSHRC Page 301
3 

Citation No. Assessment Settlement Citation No. Assessment Settlement

9185453 $654.00 $0.00 9185713 $344.00 $344.00

9185454 $514.00 $514.00 9185714 $2,550.00 $2,550.00

9185455 $514.00 $514.00 9185715 $121.00 $121.00

9185456 $405.00 $405.00 9186425 $154.00 $154.00

9185457 $230.00 $230.00 9186426 $558.00 $558.00

9185979 $372.00 $372.00 9186427 $319.00 $319.00

9185458 $214.00 $214.00 9186428 $121.00 $121.00

9185459 $214.00 $214.00 9186429 $250.00 $250.00

9185706 $250.00 $250.00 9186430 $1,345.00 $1,345.00

9186408 $604.00 $604.00 9189333 $154.00 $154.00

9186409 $372.00 $372.00 9189334 $474.00 $474.00

9186410 $405.00 $405.00 9186431 $604.00 $604.00

9186411 $121.00 $121.00 9189336 $121.00 $121.00

9186412 $142.00 $142.00 9185716 $214.00 $214.00

9186413 $558.00 $558.00 9186434 $2,993.00 $2,993.00

9189323 $474.00 $474.00 9186435 $2,353.00 $2,353.00

9185707 $121.00 $121.00 9186436 $344.00 $344.00

9186414 $121.00 $121.00 9186437 $121.00 $121.00

9186415 $474.00 $474.00 9186438 $474.00 $474.00

9186416 $474.00 $474.00 9186439 $474.00 $474.00

9186417 $250.00 $250.00 9185717 $181.00 $181.00

9186418 $1,852.00 $1,852.00 9185718 $214.00 $214.00

9186419 $2,763.00 $2,763.00 9185719 $372.00 $372.00

9189324 $474.00 $474.00 9186520 $405.00 $405.00

9189325 $121.00 $121.00 9186521 $1,057.00 $688.00

9189326 $708.00 $708.00 9186522 $604.00 $604.00

9189327 $270.00 $270.00 9182135 $250.00 $250.00

9185708 $832.00 $832.00 9182136 $121.00 $121.00

9185709 $6,148.00 $6,148.00 9186523 $121.00 $121.00

9186420 $405.00 $181.00 9186524 $121.00 $121.00

9186421 $250.00 $0.00 9186525 $121.00 $121.00

9186422 $902.00 $902.00 9189342 $604.00 $604.00

9186423 $832.00 $832.00 9189343 $372.00 $372.00

9185710 $121.00 $121.00 9186480 $604.00 $604.00

9185711 $2,763.00 $2,763.00 9186527 $1,345.00 $1,345.00

9186424 $181.00 $181.00 9186528 $181.00 $181.00

9189331 $121.00 $121.00 9186529 $154.00 $154.00

9189332 $250.00 $250.00 9186530 $154.00 $154.00

9185712 $604.00 $604.00 9186532 $250.00 $250.00

42 FMSHRC Page 302
Citation No. Assessment Settlement Citation No. Assessment Settlement

9186533 $214.00 $214.00 9186484 $2,550.00 $2,550.00

9186481 $1,345.00 $1,345.00 9186538 $832.00 $832.00

9186535 $474.00 $474.00 9186539 $168.00 $168.00

9187211 $372.00 $0.00 9186540 $319.00 $319.00

9187212 $474.00 $474.00 9186541 $121.00 $121.00

9186482 $604.00 $604.00 9189350 $372.00 $372.00

9189345 $372.00 $372.00 9189351 $474.00 $474.00

9189346 $372.00 $372.00 9189352 $121.00 $121.00

9189347 $121.00 $121.00 9189353 $121.00 $121.00

9189348 $1,242.00 $1,242.00 9186545 $270.00 $270.00

9189349 $121.00 $121.00 9189354 $250.00 $250.00

9186483 $270.00 $270.00 TOTAL $59,978.00 $58,109.00

WHEREFORE, the motion for approval of settlement is GRANTED. 

 It is ORDERED that Citation No. 9186420 be MODIFIED to reduce the level of 

negligence from moderate to low. 

It is further ORDERED that the operator pay a total penalty of $58,109.00 pursuant to 

the terms of the settlement agreement.1 

 /s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

1

 Payment should be sent to: Pay.gov, a service of the U.S. Department of the Treasury, 

at https://www.pay.gov/public/form/start/67564508 or, alternately, Mine Safety & Health 

Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 

63179-0390. 

42 FMSHRC Page 303
Distribution: 

Chris A. Weaver 

U.S. Department of Labor 

MSHA 604 Cheat Road 

Morgantown, WV 26508 

Wm. Allen McGilton 

Murray Energy Corporation 

46226 National Road 

St. Clairsville, OH 43950 

/ztb 

42 FMSHRC Page 304