1 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR, : 

 MINE SAFETY AND HEALTH : 

 ADMINISTRATION (MSHA) : 

 : 

 v. : Docket No. KENT 2022-0024 

 : 

PERRY COUNTY RESOURCES, LLC : 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

DECISION

BY THE COMMISSION: 

This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”), comes before us on interlocutory 

review of a decision of a Commission Administrative Law Judge denying a motion to approve 

settlement between Perry County Resources, LLC (“Perry”) and the Secretary of Labor. The 

Judge based his denial on the Secretary’s refusal to provide an order issued pursuant to section 

104(b) of the Mine Act,1 which was associated with a citation that was included in the motion to 

approve settlement.

For the reasons discussed below, we conclude that the Judge abused his discretion in 

denying the motion. Therefore, we reverse the Judge’s decision and approve the settlement.

I.

Factual and Procedural Background

A. Factual Background 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”) sent 

Perry a proposed penalty assessment, proposing civil penalties against Perry for several citations 

1

 Section 104(b) provides in part that if an authorized representative of the Secretary 

finds during a follow-up inspection that a violation described in a citation “has not been totally

abated within the period of time as originally fixed therein or as subsequently extended, 

and . . . that the period of time for the abatement should not be further extended,” the 

representative shall issue an order requiring the removal of certain persons from the affected area 

until “such violation has been abated.” 30 U.S.C. § 814(b). 

July 20, 2023
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issued pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), at Perry’s E4-2 mine. 

Perry contested the penalty proposals with respect to four of the citations by checking the 

appropriate boxes on MSHA Form 1000-179. The Secretary subsequently filed a petition for 

assessment of penalty, and Perry filed an answer to the petition.

The four citations and associated penalties that Perry contested may be summarized as 

follows: 

1. Citation No. 9282162, alleging a significant and substantial (“S&S”)2 violation of 30 

C.F.R. § 75.202(a) because roof bolt plates were missing, due to rusting, on roof bolts 

along the primary escapeway. Proposed penalty: $336.

2. Citation No. 9282163, alleging an S&S violation of 30 C.F.R. § 75.380(d)(1) because 

the primary escapeway was not being maintained in safe condition because it had 

draw rock and thick mud which would impede safe passage. Proposed penalty: 

$302. 

3. Citation No. 9282123, alleging an S&S violation of 30 C.F.R. § 75.380(d)(7)(i) 

because the lifeline in the secondary escapeway was broken and pulled apart and was 

not being properly maintained. Proposed penalty: $530.

4. Citation No. 9282125, alleging an S&S violation of 30 C.F.R. § 75.1722(a) because 

the equipment guard was not being properly maintained due to an opening in the 

guard along the belt tailpiece. Proposed penalty: $302.

Ex. A to PIR. In the row of MSHA Form 1000-179 that pertains to Citation No. 9282162, the 

type of action is listed as “104(a) C/104(b) O.”

B. Motions and Correspondence

In April 2022, the parties filed a Joint Motion to Approve Settlement. In the motion, the 

parties proposed that there should be no modifications with respect to three of the four citations, 

and that the operator would pay the proposed penalties associated with those citations. Jt. Mot. 

at 2. Regarding the remaining citation, Citation No. 9282123, the parties agreed that the operator 

should pay a penalty of $264 rather than $530 due to a reduction in negligence from moderate to 

low. Id. at 2, 4. The parties proposed no modification with respect to Citation No. 9282162, 

which was associated with the failure to abate order.

A few weeks later, the Judge and the parties exchanged emails about the absence of the 

section 104(b) order from the record. On May 31, 2022, the Judge emailed the parties that he 

noticed that the section 104(b) order was not in the official file, and that he needed to be 

provided with a copy of the order before he could rule on the joint motion. Ex. C to PIR at 3. 

The Conference and Litigation Representative (“CLR”) representing the Secretary’s interests 

responded that the Secretary declined to provide other documents not before the court because 

the order requested by the Judge was not contested. Id. at 2-3. The Judge replied that he would 

2

 The “significant and substantial” terminology is taken from section 104(d)(1) of the 

Mine Act, 30 U.S.C. § 814(d)(1), which distinguished as more serious in nature any violation 

that “could significantly and substantially contribute to the cause and effect of a . . . mine safety 

or health hazard.”
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be unable to proceed on the motion until he received the order and stated his opinion that the 

order was a matter of public record. Id. at 2. The CLR then stated that the citation affiliated 

with the order, Citation No. 9282162, had been affirmed and that the good faith discount had not 

been given for the penalty for the underlying violation. Id. at 1. The Judge again responded that 

he disagreed with the CLR’s position and that he would have no choice but to file a request 

under the Freedom of Information Act in order to obtain the order. Id.

Approximately two weeks later, the parties filed a Supplemental Motion to Approve 

Settlement or Motion to Certify for Interlocutory Review, which incorporated by reference the 

Joint Motion to Approve Settlement. Supp. Mot. at 1. In the supplemental motion, the Secretary 

submitted that she had not attached a copy of the section 104(b) order to the petition for 

assessment of penalty because she had not proposed a penalty for that order. Id. at 2. She noted 

that because Perry had not contested the order or sought temporary relief from it, the 

Commission never had jurisdiction over the order. Id. The Secretary asserted that the motion to 

approve settlement should be approved because the settlement satisfies the Commission’s 

standard for approval of settlements. Id. at 3. Alternatively, the Secretary requested the Judge to 

certify this case for interlocutory review because the requirements for review had been met 

pursuant to 29 C.F.R. § 2700.76. Id. at 5-6. 

C. Judge’s Orders 

On June 22, 2022, the Judge issued an order directing the Secretary to disclose all 

documents pertaining to the issuance of the section 104(b) order associated with Citation No. 

9282162. 44 FMSHRC 501, 506 (June 2022) (ALJ). The Judge noted that the abatement time 

had been extended for Citation No. 9282162, that the record does not reveal whether the 

extended termination had been met, and that the section 104(b) order would provide such 

information. Id. at 502. The Judge reasoned that a section 104(b) order has significance in its 

own right in that a penalty may be assessed in connection with the order and that its issuance 

impacts the amount of penalty that is assessed for the underlying violation based upon 

consideration of the operator’s demonstrated good faith in attempting to achieve rapid 

compliance after notification of the violation. Id. at 504-05. The Judge observed that the record 

also does not reveal if the Secretary met his obligation to notify the miners’ representatives that 

the operator failed to abate a violation within the specified abatement period. Id. at 505.

The Secretary and operator provided no further documents in response to the Judge’s 

June order.

On October 5, 2022, the Judge issued an order denying the Secretary’s settlement motion 

and denying the Secretary’s motion to certify the matter for interlocutory review. 44 FMSHRC 

621 (Oct. 2022) (ALJ). The Judge reiterated much of the reasoning set forth in his June order, 

concluding that when presenting a motion to approve settlement, the Secretary should provide 

the entire documentary record related to the citations involved in the docket. Id. at 624. The 

Judge explained that Citation No. 9282162 is part of the docket, and that the documentary record 

concerning the violation is incomplete without the section 104(b) order. Id. at 627. The Judge 

further denied the Secretary’s Motion to Certify for Interlocutory Review concluding that the 

requirements for interlocutory review had not been met. Id.
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D. Interlocutory Review 

The Secretary subsequently filed a petition for interlocutory review of the Judge’s 

October 5 order. The Commission granted review “of the Judge’s order of October 5, 2022, and 

the issue of whether the Judge abused his discretion in denying approval of the settlement motion 

based on the Secretary’s refusal to provide a section 104(b) order that was associated with a 

citation that was a subject of the motion to approve settlement.” 44 FMSHRC 703 (Dec. 2022).

On review, the Secretary argues that the Judge abused his discretion in denying the 

settlement motion. She explains that the instant docket involves four violations and only one 

penalty compromise, and that the failure to abate order was irrelevant both to the compromised 

penalty and to the citation associated with such penalty. The Secretary submits that she provided 

sufficient facts to permit the Judge to determine if the penalty modification protected the public 

interest. 

She further notes that the section 104(b) order was a separate enforcement action with its 

own issuance number, and that if Perry wanted to contest the order, it could have done so 

separately. The Secretary explains that because MSHA did not propose a penalty for the order 

and Perry did not contest it, the Secretary did not attach a copy of the section 104(b) order to the 

penalty petition.

II.

Disposition

Section 110(k) of the Mine Act sets forth the Commission’s authority to approve 

settlements of the Secretary’s proposed assessments once contested. It provides:

No proposed penalty which has been contested before the 

Commission under section 105(a) shall be compromised, 

mitigated, or settled except with the approval of the Commission. 

No penalty assessment which has become a final order of the 

Commission shall be compromised, mitigated, or settled except 

with the approval of the court.

30 U.S.C. § 820(k). Commission Procedural Rule 31 requires that a motion to approve penalty 

settlement must include, for each violation, the original amount of the penalty proposed by the 

Secretary, the amount of the penalty agreed to in settlement, and facts in support of the penalty 

amount agreed to by the parties. 29 C.F.R. § 2700.31(b)(1).

The Commission has explained that “Congress authorized the Commission to approve the 

settlement of contested penalties . . . ‘to ensure penalties serve as an effective enforcement tool, 

prevent abuse, and preserve the public interest.’” American Coal Co., 38 FMSHRC 1972, 1976 

(Aug. 2016) (“AmCoal I”) (quoting Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 

2012)). In “effectuating this Congressional mandate, the Commission and its Judges consider 

whether the settlement of a proposed penalty is fair, reasonable, appropriate under the facts, and 
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protects the public interest.” AmCoal I, 38 FMSHRC at 1976. The Commission has recognized 

that parties may submit factual support consistent with the penalty criteria factors found in 

section 110(i) of the Mine Act, 30 U.S.C. § 820(i), as well as facts supporting settlement that fall

outside of the section 110(i) factors. Id. at 1982.

The Commission reviews a Judge’s denial of a proposed settlement under an abuse of 

discretion standard. Sec’y of Labor on behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC 

1097, 1101 (May 2014). 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. 

Id. at 1101. In Solar Sources Mining, LLC, 41 FMSHRC 594, 599 (Sept. 2019), the Commission 

concluded that the Judge abused his discretion in denying a settlement motion because he: (1) 

failed to apply the AmCoal I standard, (2) denied the settlement based on the Secretary’s refusal 

to provide a copy of the inspector’s notes and photographs, and (3) erred in finding that the 

Secretary failed to prove any facts in support of the settlement. 

We conclude that the Judge also abused his discretion in the case at hand; the Judge’s 

decision is based on an improper understanding of the law. The Judge failed to apply the 

AmCoal I settlement standard and instead denied the settlement motion because the Secretary did 

not provide a copy of the section 104(b) Order related to Citation No. 9282162. 

The Commission has repeatedly recognized that a Judge who properly determines that a 

settlement motion lacks sufficient information may permissibly request further facts from the 

parties. Solar Sources, 41 FMSHRC at 602 (citing Black Beauty, 34 FMSHRC at 1863). 

However, the Commission has explained that during the review of a proposed settlement, 

the Judge is not expected to engage in fact finding as the Judge would post-hearing. Solar 

Sources, 41 FMSHRC at 602 (“At the pre-hearing settlement stage of a Commission proceeding, 

no evidence has been adduced into the record and the Judge is not required to engage in fact 

finding.”). In the context of reviewing a proposed settlement, a Judge may not “assign[] 

probative value to some facts without the benefit of an evidentiary hearing.” American Coal Co, 

40 FMSHRC 983, 991 (Aug. 2018) (“AmCoal II”). Judges are “expected to consider the facts as 

alleged by the parties in their settlement, evaluate such information under the applicable 

Commission standard for review, and determine whether the facts support the penalty agreed to 

by the parties.” See Solar Sources, 41 FMSHRC at 602.

Under the circumstances of this case, the Judge erred by denying the settlement on the 

basis that he was not provided the section 104(b) failure to abate order associated with Citation 

No. 9282162. The operator agreed to accept Citation No. 9282162 as written and pay the 

proposed penalty in full. The Judge failed to identify relevant facts that would be provided by 

the order that had not already been made a part of the record.3

3 In Solar Sources Mining, LLC, 41 FMSHRC 594, 603 (Sept. 2019), the Commission 

held that the Judge abused his discretion when he denied a settlement, in part, because the 

Secretary refused to provide evidentiary documents such as the inspector’s notes and 

photographs. Without reaching the question of whether a section 104(b) order issued for a 

failure to abate a contested citation may ever appropriately be sought by a Judge to further the 
6 

An operator’s timeliness in achieving abatement impacts the penalty criteria of “the 

demonstrated good faith of the person charged in attempting to achieve rapid compliance.” 30 

U.S.C. § 820(i). Here, the Secretary provided factual information that the good faith abatement 

discount was not given with respect to the proposed penalty for Citation No. 9282162. Supp. 

Mot. at 3 (citations omitted).4 

In addition, the Judge’s repeated concern that the record does not reveal if the Secretary 

met his obligation to notify the miners’ representatives that the operator failed to abate a 

violation within the specified abatement period (44 FMSHRC at 627; 44 FMSHRC at 505) is 

irrelevant to the subject proceeding. Section 105(b)(1)(A) 5 requires the Secretary to provide 

notice to an operator and to the miners’ representative that the operator has failed to timely abate 

a violation and that a penalty will be proposed under section 110(b) of the Mine Act, 30 U.S.C. 

§ 820(b). Here, the Secretary provided factual information that she did not propose a penalty in 

connection with the section 104(b) order. Therefore, the provisions of section 105(b)(1)(A) do 

not apply to this proceeding.

Under Commission Procedural Rule 28, the Secretary is required to attach to a petition 

for assessment of penalty “[a] legible copy of each citation or order for which a penalty is 

sought.” 29 C.F.R. § 2700.28(c). Since the Secretary did not propose a penalty for the section 

Judge’s AmCoal I analysis or whether it constitutes prohibited evidentiary documentation, we 

find the Judge’s request was inappropriate in this case. The Judge failed to identify a rationale 

for requiring the order, considering that the operator accepted the contested citation as written 

and agreed to pay the proposed penalty in full. 

4

 Moreover, regarding the Judge’s statement in his June 22 order that although the 

termination date had been extended in Citation No. 9282162, the record was missing information 

about whether the extended date had been met, the Judge acknowledged that “one may presume 

it was not, because Exhibit A for this docket reveals that a section 104(b) order was issued.” 44 

FMSHRC at 502. 

5

 Section 105(b)(1)(A) provides in part:

If the Secretary has reason to believe that an operator has failed to 

correct a violation for which a citation has been issued within the 

period permitted for its correction, the Secretary shall notify the 

operator by certified mail of such failure and of the penalty 

proposed to be assessed under section 110(b) . . . . A copy of such 

notification of the proposed assessment of penalty shall at the same 

time be sent by mail to the representative of the mine 

employees. . . .

30 U.S.C. § 815(b)(1)(A).
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104(b) order, the Secretary was not required to attach a copy of the order to the Secretary’s 

petition.6

The Judge further erred by failing to evaluate the facts provided by the parties under the 

settlement against the AmCoal standard and to determine whether those facts support the penalty 

agreed to by the parties.7 While we could remand this case to the Judge to apply the standard, 

relying upon relevant factual support in the record, we conclude that remand is unnecessary 

because the parties presented sufficient facts to support the conclusion that the settlement is fair, 

reasonable, appropriate, and serves the public interest.

In the Joint Motion to Approve Settlement, the parties stated in part that they had 

considered the alleged violations, the six statutory penalty criteria, “and other non-monetary 

considerations that fall outside of [section] 110(i) but that support settlement.” Jt. Mot. at 2. The 

parties agreed that Citation Nos. 9282162, 9282163, and 9282125 should be accepted by Perry as 

written and that the operator should pay the original proposed penalties associated with those 

citations. Id. at 3; Supp Mot. at 1.

In addition, the parties stated that modification was appropriate for Citation No. 9282123. 

This citation alleged an S&S violation of 30 C.F.R. § 75.308(d)(7)(i) due to the lifeline in the 

secondary escapeway not being properly maintained. The parties provided information that the 

negligence associated with the violation should be reduced from moderate to low, and that the 

operator should pay a penalty of $264 rather than $530. The lowering of negligence was based 

on statements provided by the parties that: (1) mine management did not have knowledge of the 

condition or reason to believe that it existed; (2) the alleged condition was not present during the 

morning pre-shift examination or when the crew traveled to the section at the start of their shift; 

(3) the condition likely occurred when a load of supplies was transported to the section without 

the knowledge of the equipment operator; and (4) the condition was promptly corrected as soon 

as it was discovered. Jt. Mot. at 4. 

The Commission has recognized that an “operator’s knowledge (actual or constructive) is 

a key component of a negligence determination.” Ohio Cty Coal Co., 40 FMSHRC 1096, 1099 

(Aug. 2018). The Commission has considered evidence relating to an operator’s lack of 

knowledge to support a reduction in negligence when approving a settlement agreement. Id. 

Here, the parties have provided relevant information regarding the operator’s lack of 

knowledge to support a reduction in negligence from moderate to low. We conclude that the 

facts alleged by the parties are sufficient to establish that the penalty reduction is fair, reasonable, 

6

 The section 104(b) order was a separate enforcement action with its own issuance 

number (Order No. 9282166). S. Br. at 2 & Ex. A. Although the operator could have chosen to 

contest the order, it did not. The Commission has held that Commission jurisdiction attaches 

upon contest. Black Beauty, 34 FMSHRC at 1862 n.4.

7

 Although the Judge noted that the penalty reduction related to Citation No. 9282123 

was based upon a reduction in negligence, the Judge did not evaluate the facts against the 

AmCoal standard. 44 FMSHRC at 622 n.1.
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appropriate under the facts, and protects the public interest.8 The settlement involved a modest 

reduction in penalty, and the parties provided sufficient facts to support that penalty reduction. 

Accordingly, we reverse the Judge’s denial of the motion to approve settlement, and we hereby 

approve the settlement. 

III.

Conclusion

For the foregoing reasons, we reverse the Judge’s denial of the motion to approve 

settlement, and we approve the settlement. 

 

_________________________________ 

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

 

 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 

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 We note that the following principle–ensuring that the public interest is adequately 

protected by the reduction of a penalty in settlement–does not require a determination of whether 

the proposed settlement best serves the public interest. Shemwell, 36 FMSHRC at 1103-04. 

Rather, we consider whether the proposed settlement is “within the reaches of public interest.” 

Id. at 1104 (quotations omitted and emphasis added).
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Distribution:

Tracy E. Wolf, Esq.

Office of the Solicitor

U.S. Department of Labor, Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Wolf.tracy.e@dol.gov

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor, Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

scott.emily.t@dol.gov

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor, Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Nelson.April@dol.gov

Gregory Q. Jensen

Perry County Resources, LLC

P.O. Box 606

Fishers, IN 46038

GQJ@AmericanResourcesCorp.com

Administrative Law Judge William Moran

Federal Mine Safety Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

wmoran@fmshrc.gov

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

Garris.Melanie@dol.gov
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Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov