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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

January 11, 2023

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner

v. 

APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2022-04281

AC No. 46-08930-551112 

Mine: Grapevine South Surface Mine

DECISION APPROVING SETTLEMENT2

This case is before the Court upon a petition for assessment of a civil penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a 

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

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

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

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

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

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

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

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

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

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

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

Reallocation, June 29, 2022.

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

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

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

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

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

The Court, consistent with the Reallocation Order, continues to treat the dockets separately.
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citation was issued without the 10% penalty reduction for “good faith” abatement efforts. 

Citation MSHA’s

Proposed 

Penalty

Settlement

Amount

Other modifications to citation/order

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

means of access not provided and 

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

Sustained as Issued- No penalty 

reduction

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

993K Caterpillar Front-End Loader Co. 

No. L465 not maintained in safe 

operating condition. 

Sustained as Issued- No penalty 

reduction

9563157

(Associated 

104(b) order No.

9563179)

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

defects affecting safety existed on 785C 

Caterpillar Haulage Truck Co. No. 

RT263. Sustained as Issued- No penalty 

reduction

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

rocks located along elevated roadway 

with no berms or guards to prevent 

equipment or vehicle from traveling into 

sump. Sustained as Issued- No penalty 

reduction

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

park brake on white Dodge Blasting 

Truck not functioning properly when 

tested. 

Sustained as Issued- No penalty 

reduction

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

failure to record and report defects 

affecting safety after pre-operational 

examination of white Dodge Blasting 

Truck. 

Sustained as Issued- No penalty 

reduction

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

certified blaster did not sure all persons 

were cleared from blast area or 

sheltered. Modify the negligence from 

“moderate” to “low.” Penalty reduction 
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of 55%.

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

hazardous material not stripped for a 

safe distance along the highwall in the 

Sustained as Issued- No penalty 

reduction

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

defects affecting safety in D11R 

Caterpillar Dozer Co. No. DZ040. 

Sustained as Issued- No penalty 

reduction

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

means of access not provided and 

maintained on 785D Caterpillar Haulage 

Truck Co. NO. MSY113. 

Sustained as Issued-No penalty 

reduction

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

defects affecting safety on 785C 

Caterpillar Haulage Truck Co. No. 

RT001. 

Sustained as Issued- No penalty 

reduction

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

to follow established ground control 

plan. 

Sustained as Issued- No penalty 

reduction

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

failure to record nature and location of 

hazardous conditions after examination. 

Sustained as Issued- No penalty 

reduction

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

damage to driver’s seat belt on 

Freightliner Mechanic Truck Co. No. 

MT-665. 

Sustained as Issued- No penalty 

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

independent contract mechanics 

working on the property not provided 

Experienced Miner Training. Modify the 

gravity from “reasonably likely” to 

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

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

Penalty reduction of 80%.

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

defects affecting safety on Volvo Fuel 

and Oil Service Truck Co. No. 900. 

Modify the gravity from “fatal” to “lost 

workdays or restricted duty” with a 

penalty reduction in accordance with 30 

C.F.R. part 100.3. 

Penalty reduction of 70%

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

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

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

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

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

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

The citation read:

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

Truck co. No. RT263:

1. The left rear strut is bottoming out.

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

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

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

cylinder connects to the truck bed.

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

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

6. The left side front strut is bottoming out.

7. The right front strut is leaking oil.

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

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

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

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

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

safety shall be correct before the equipment is used.

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

operator, 0 to a contractor).

Pet. for a Civil Penalty at 66-67.

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

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

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

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

Repair work has been hampered by limited personnel to complete the repairs. The 

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

completed.

Id. at 68.

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

Approve Settlement at 3.

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

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

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

eCMS for this docket. The order read:

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

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

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

existed.

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

operator, 0 to a contractor).

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

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

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

Pit, have been corrected by a qualified person.” Id. at 10.
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Analysis of Section 104(a) Citation No. 9563157 with its associated 104(b) Order No.

9563179

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of a petition for the assessment of a civil penalty, it is before the Commission. All of it. 

Not just those parts the Secretary unilaterally wishes to reveal. 

As the Commission has noted: 

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

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

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

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

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

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

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

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

severe sanctions that are applied when an operator incurs repeated violations 

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

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

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

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

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

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

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

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

filing of its civil penalty petition, blocking their review where a citation is paid in full with 
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no changes to the inspector’s evaluation. If that doesn’t make sense, and the Court agrees 

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

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

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

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

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

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

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

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

the reader that there was more to the story.

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

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

for the relevant information. 

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

noted the importance of (b) orders: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the Mine Act states:

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

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

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

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

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

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

or his agent to immediately cause all persons, except those persons referred to in 
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subsection (c), to be withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines that such violation 

has been abated.

30 U.S.C. § 814(b).

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

right. It has observed that:

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

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

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

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

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

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

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

provides in pertinent part:

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

violation for which a citation has been issued within the period permitted for its 

correction, the Secretary shall notify the operator by certified mail of such failure 

and of the penalty proposed to be assessed under section 110(b) by reason of such 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section [110(a)] of the Act. S. Rep. No. 95-181, at 34-35 (1977), reprinted in Senate 
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Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal 

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

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

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

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

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

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

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

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

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

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

Secretary eventually assesses a penalty for the original violative condition that 

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

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

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

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

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

added).

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

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

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

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

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

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

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

593. (emphases in original Order).

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

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

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

abate a violation within the specified abatement period.

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

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

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

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

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

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

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

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

review of violations that have settled, whether such settlements are for the full 
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amount proposed or some lesser amount. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

People’s Money 92 (1914).

Id. at 503-506 (footnotes omitted).

Analysis of the Citations involving the Secretary’s modifications of the inspector’s 

evaluations with accompanying significant penalty reductions. 

Citation No. 9563161

Citation No. 9563161 was issued on April 19, 2022, for a violation of 30 C.F.R. 

§ 77.1303(h). Titled “Explosives, handling and use,” the standard specifies that “Ample

warning shall be given before blasts are fired. All persons shall be cleared and removed from 

the blasting area unless suitable blasting shelters are provided to protect men endangered by 

concussion or flyrock from blasting.” 30 C.F.R. § 77.1303(h). 

The citation read:

The certified blaster did not ensure that all persons were cleared from the blast area 

or that all persons were in suitable blasting shelter to protect persons endangered 

by flyrock from blasting. A front-end loader was hit by flyrock from blasting. The 

loader operator was setting inside the operators cab when the flyrock hit the loader. 

The rock hit the left side tilt cylinder in front of the cab where the pin is located. It 

is reasoanbly likey if this condition continues to exist an accident will occur. All 
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persons shall be cleared and removed from the blasting area unless suitable blasting 

shelters are provided to protect men endangered by concussion or flyrock from 

blasting.

Pet. for a Civil Penalty at 82.

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

could reasonably be expected to be “fatal,” affecting one person. Id. Accordingly, the violation 

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

The citation was terminated on January 24, 2022, when “[t]he mine operator ha[d] retrained the 

blaster and blaster helpers on the Blasting Safety Precautions in the Acknowledge[d] Ground 

Control Plan. The training has been documented. Also observed the loading and blasting cycle.” 

Id. at 83.

The Secretary moves to modify the citation, changing the negligence finding from 

“moderate” to “low,” offering the following in support:

Citation #9563161 will be modified to “low” negligence, with a reduction in 

penalty in accordance with the 30 CFR part 100.3. The Respondent contends that 

the negligence of the citation was overevaluated and should not have been issued 

as “moderate”. Respondent would argue at hearing that the company was in 

compliance with their approved plan at the time of the accident. Additionally, no 

adverse conditions were observed by the certified blaster prior to the shot. The

Secretary recognizes that the ALJ might find merit in the facts and arguments 

presented by the Respondent and in light of the contested evidence and given the 

uncertainties of litigation, the Secretary has agreed to modify the negligence from 

“moderate” to “low”, and reduce the penalty for citation #9563161 from $4,161 to 

$1,869, and the Respondent has agreed to pay the reduced penalty.

Mot. to Approve Settlement at 3-4.

Analysis for Citation No. 9563161

Citation No. 9563161. The Secretary has agreed to a 55% reduction in the penalty for 

this now-admitted violation. In pursuit of the very large reduction in the regularly assessed 

penalty and the accompanying redesignation of the negligence from moderate to low, the 

Secretary asserts that the judge “might find merit in the facts and arguments presented by the 

Respondent,” but does not reveal his own evaluation of the merits of those assertions. Given the 

presented facts, these changes do not appear to be warranted. 

The standard, now admitted as having been violated, presents no exceptions to its 

requirement that “[a]ll persons shall be cleared and removed from the blasting area ...to protect 

men endangered by concussion or flyrock from blasting.” 30 C.F.R. § 77.1303(h). Here, the 

uncontested facts are that a “front-end loader was hit by flyrock from blasting. The loader 
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operator was s[i]tting inside the operators cab when the flyrock hit the loader.” Pet. for a Civil 

Penalty at 82 (emphasis added). Obviously, as the loader was hit by flyrock and the operator 

was in the loader at that time, the standard was violated.

The justification for designating the negligence as low, with low meaning the presence 

of considerable mitigating circumstances, is without merit. This is because the company’s claim 

that it was in compliance with their approved plan at the time of the accident and that no 

adverse conditions were observed by the certified blaster prior to the shot are of the ‘other 

safety measures taken’ ilk. These excuses do not cut it, per decisions by the U.S. Courts of 

Appeals.4

It is undeniable that all persons were not cleared and removed from the blasting area. 

Thus, the harm the standard addresses occurred. 

The Court also notes that the issuing inspector had marked the negligence associated 

with the citation as “moderate.” That means the inspector had already determined there were 

4 Federal case law is clear that redundant safety measures are not to be considered in evaluating a 

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

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

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

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

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

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

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

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

at 136.

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

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

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

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

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

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

“consideration of redundant safety measures,”—that is, “preventative measures that 

would have rendered both injuries from an emergency and the occurrence of an 

emergency in the first place less likely”—“is inconsistent with the language of 

[Section] 814(d)(1).” Id. at 1028–1029. 

Id. at 118-119. 
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mitigating circumstances. However, qualifying for “low negligence” requires the presence of 

“considerable mitigating circumstances.” 30 C.F.R. §100.3, Table X- Negligence (emphasis 

added). The provision states: “When applying this criterion, MSHA considers mitigating 

circumstances which may include, but are not limited to, actions taken by the operator to 

prevent or correct hazardous conditions or practices.” Id. at 100.3(d) (emphasis added). 

Clearly, no actions taken by the operator to prevent or correct hazardous conditions or practices

have been identified. In the absence of “considerable mitigation,” it is especially disconcerting 

that the Secretary would agree to reclassifying the negligence to “low” where the operator 

occupied front-end loader was hit by flyrock from a blast. 

The standard, for which strict liability applies, was violated as all persons were not 

cleared and removed from the blasting area. The claim that the operator was in compliance with 

its approved plan is beside the point, as is the contention that the certified blaster did not observe 

any adverse conditions. Neither of these arguments reduce the negligence involved and certainly 

do not constitute considerable mitigation. If flyrock from a blast hitting a miner occupied frontend loader can satisfy a low negligence designation for the reasons presented by the operator, 

then it is hard to conjure what would constitute moderate negligence. Undermining the 

operator’s claims, the inspector noted that the blaster and the blaster operators were retrained on 

the blasting safety precautions in the acknowledged ground control plan. Pet. for a Civil Penalty 

at 83.

In the Court’s opinion, based on this record, the Secretary should not have acceded to this 

$2,292.00 reduction in the regularly assessed penalty. Were it permitted, the Court would have 

asked several questions seeking the basis for the claimed “considerable” mitigation. 

Citation No. 9563188

Citation No. 9563188 was issued on February 2, 2022, for a violation of 30 C.F.R. 

§ 48.26. For this now-admitted violation, titled “Experienced miner training,” in relevant part,

the standard specifies that:

(b) Experienced miners must complete the training prescribed in this section before 

beginning work duties. Each experienced miner returning to mining following an 

absence of 5 years or more, must receive at least 8 hours of training. The training 

must include the following instruction: 

(1) Introduction to work environment. The course shall include a visit and tour 

of the mine. The methods of mining or operations utilized at the mine shall be 

observed and explained. 

(2) Mandatory health and safety standards. The course shall include the 

mandatory health and safety standards pertinent to the tasks to be assigned. 

(3) Authority and responsibility of supervisors and miners' representatives. The 

course shall include a review and description of the line of authority of supervisors 

and miners' representatives and the responsibilities of such supervisors and 
14

miners' representatives; and an introduction to the operator's rules and the 

procedures for reporting hazards. 

(4) Transportation controls and communication systems. The course shall 

include instruction on the procedures in effect for riding on and in mine 

conveyances; the controls for the transportation of miners and materials; and the 

use of the mine communication systems, warning signals, and directional signs. 

(5) Escape and emergency evacuation plans; firewarning and firefighting. The 

course must include a review of the mine escape system and the escape and 

emergency evacuation plans in effect at the mine, and instruction in the 

firewarning signals and firefighting procedures in effect at the mine. 

(6) Ground controls; working in areas of highwalls, water hazards, pits, and 

spoil banks; illumination and night work. The course shall include, where 

applicable, an introduction to and instruction on the highwall and ground control 

plans in effect at the mine; procedures for working safely in areas of highwalls, 

water hazards, pits, and spoil banks, the illumination of work areas, and safe work 

procedures for miners during hours of darkness. 

(7) Hazard recognition. The course must include the recognition and avoidance 

of hazards present in the mine. 

(8) Prevention of accidents. The course must include a review of the general 

causes of accidents applicable to the mine environment, causes of specific 

accidents at the mine, and instruction in accident prevention in the work 

environment. 

(9) Emergency medical procedures. The course must include instruction on the 

mine's emergency medical arrangements and the location of the mine's first aid 

equipment and supplies. 

(10) Health. The course must include instruction on the purpose of taking dust, 

noise, and other health measurements, where applicable; must review the health 

provisions of the Act; and must explain warning labels and any health control plan 

in effect at the mine. 

(11) Health and safety aspects of the tasks to which the experienced miner is 

assigned. The course must include instruction in the health and safety aspects of 

the tasks assigned, including the safe work procedures of such tasks, information 

about the physical and health hazards of chemicals in the miner's work area, the 

protective measures a miner can take against these hazards, and the contents of 

the mine's HazCom program. Experienced miners who must complete new task 

training under § 48.27 do not need to take training under this paragraph. 

(12) Such other courses as may be required by the District Manager based on 

circumstances and conditions at the mine. 

30 C.F.R. § 48.26.
15

The citation read:

The independent contract mechanics that work throughout mine property on 

a daily bas[i]s were not provided Experience[d] Miner Training. The operator 

must withdraw both mechanics from the property until the required training is 

received. The Federal Mine Safety and Health Act of 1977 declares that an 

untrained miner is a hazard to themselves and others.

Petition at 103 (emphasis added).

For gravity, likelihood of injury was found to be “reasonably likely,” with the injury

reasonably be expected to be “fatal,” affecting two persons. Id. The violation was found to be 

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

terminated on February 2, 2022, when “Both mechanics have been provided with the required 

Experience Miner Training and the training has been documented on a MSHA Form 5000-23.” 

Id. at 104.

The Secretary moves to modify the citation, reducing gravity from “reasonably likely” to 

“unlikely” and removing the significant and substantial designation, offering the following in 

support:

Citation #9563188 will be modified to “unlikely” and “non S&S” gravity, with a 

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

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

and “S&S”. Respondent would argue at hearing that the independent contractors 

were experienced miners and had been working on mine property for several weeks. 

Additionally, all workers had been verbally informed of any and all hazards on 

mine property. The Secretary has exercised his discretion to modify the significant 

and substantial designation associated with citation #9563188. The Secretary may 

exercise that discretion as part of a settlement. Am. Aggregates of Michigan, Inc., 

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

FMSHRC 877, 879-80 (June 1996)). The Secretary recognizes that the ALJ might 

find merit in the facts and arguments presented by the Respondent and in light of 

the contested evidence and given the uncertainties of litigation, the Secretary has 

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

the “S&S” finding, and reduce the penalty for citation #9563188 from $4,507 to

$910, and the Respondent has agreed to pay the reduced penalty.

Motion at 4.
16

Analysis for Citation No. 9563188

Citation No. 9563188 states that “[t]he independent contract mechanics that work 

throughout mine property on a daily bas[i]s were not provided Experience[d] Miner Training.” 

Petition at 103. The mechanics were withdrawn from the mine until the required training was 

received. That event occurred later that day, at which point the citation was terminated. For this 

now-admitted violation, the Secretary has agreed to redesignate the violation from reasonably 

likely to ‘unlikely.’ Motion at 4. The recharacterization of gravity to ‘unlikely’ destroys the 

significant and substantial designation. 

The reasons advanced by the Respondent are, in the Court’s estimation, suspect. Those 

reasons – that that the independent contractors were experienced miners and had been working 

on mine property for several weeks and that all workers had been verbally informed of any and 

all hazards on mine property – if endorsed, effectively emasculates the standard. As the 

inspector noted, the Mine Act itself declares an untrained miner to be a hazard to himself and 

others. 30 U.S.C. §814(g)(1). By accepting the assertion that the mechanics were experienced 

and they’d been working on the mine for several weeks and they had been told verbally of ‘any 

and all hazards’ on the mine property,” the Secretary has discarded his own safety training 

standard. There is no exception in the standard for the excuses advanced by the mine operator. 

To the contrary, that the mechanics had been working, without the required training, is an 

aggravating factor. Asserting that the mechanics had been verbally apprised of all hazards, an 

outlandish claim, is no substitute either. In the Court’s opinion, on this record the Secretary has 

eviscerated the standard’s statutory and regulatory requirement by adopting the operator’s 

excuses as grounds for characterizing the gravity as unlikely. 

Thus, the Court believes that the Secretary’s agreement to reclassify the likelihood of an 

injury or illness occurring to “unlikely” makes a mockery of the standard’s requirements. It is,

after all, described as “experienced” miner training. Because it addresses such experienced 

miners, the idea that because the independent contractors were experienced miners by 

background, but not by the MSHA required training and the remark that they had been working 

on mine property for several weeks suffices, neuters the standard. The latter argument amounts 

to a claim that by continuing to work without the MSHA required training, that training 

requirement evaporates. The agreement for an 80% (eighty percent) reduction in the 

penalty confirms this observation. The standard does not speak of ‘experience’ in a vacuum. 

Instead, it spells out, in detail, the required subjects of required training. Additionally, the idea 

that because the contractors had been on the job “for several weeks,” (an indisputably short 

period of time), makes the hazard unlikely, is another instance of effectively negating the force 

of the standard. Last, the standard, detailed as it is, does not endorse the idea that verbally

informing all miners of “any and all hazards” is a substitute. The Court believes that the 

Secretary should not be in the business of emasculating MSHA’s training requirements. 
17

Citation No. 9563189

Citation No. 9563189 was issued on February 2, 2022, for a violation of 30 C.F.R. 

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

standard specifies that

(a) Mobile loading and haulage equipment shall be inspected by a competent person 

before such equipment is placed in operation. Equipment defects affecting safety 

shall be recorded and reported to the mine operator. 

(b) Carriers on aerial tramways, including loading and unloading mechanisms, shall 

be inspected each shift; brakes shall be inspected daily; ropes and supports shall be 

inspected as recommended by the manufacturer or as physical conditions warrant. 

Equipment defects affecting safety shall be reported to the mine operator. 

(c) Equipment defects affecting safety shall be corrected before the equipment is 

used. 

30 C.F.R. § 77.1606.

The citation read:

The following defects affecting safety existed on the Volvo Fuel & Oil Service 

Truck Co. No. 900:

1. An air leak existed on the fuel line switch which was causing the air to drop from 

both the primary and secondary tanks.

2. The regulator on the air compressor was not functioning properly when tested.

This truck is operated throughout mine proper to service equipment. Defects 

affecting safety shall be corrected before the equipment is used.

Standard 77.1606(c) was cited 63 times in two years at mine 4608930 (62 to the 

operator, 1 to a contractor). 

Petition at 105.

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

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

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

February 8, 2022, with the justification that 

The following actions have been taken to correct the conditions:

1. Installed a new air line on fuel valve and a air line under the rear of the truck.

2. Installed a new fitting on the air compressor.

Id. at 106.
18

The Secretary moves to modify the citation, changing the gravity from “fatal” to “lost 

workdays or restricted duty,” offering the following in support:

Citation #9563189 will be modified to “lost workdays or restricted duty” gravity, 

injury or illness expected, with a reduction in penalty in accordance with the 30 

CFR part 100.3. The Respondent contends that the gravity of the citation was overevaluated and should not have been issued as “fatal”. Respondent would argue at 

hearing that the cited conditions would not cause fatal injuries to miners. The cited 

truck is only used to fuel, oil, and grease equipment on level loads at slow speeds. 

Additionally, all brakes worked properly when tested. The Secretary recognizes 

that the ALJ might find merit in the facts and arguments presented by the 

Respondent and in light of the contested evidence and given the uncertainties of 

litigation, the Secretary has agreed to modify the gravity from “fatal” to “lost 

workdays or restricted duty,” and reduce the penalty for citation #9563189 from 

$3,274 to $987, and the Respondent has agreed to pay the reduced penalty.

Motion at 5.

Analysis for Citation No. 9563189

This Citation involves not one, but two, safety defects on a fuel and oil service truck. 

For this now-admitted violation, the inspector found both an air leak on the fuel line switch, 

causing the air to drop from both the primary and secondary tanks, and additionally that the 

regulator on the air compressor was not functioning properly upon being tested. Further, the 

corrections demonstrated that the admitted hazards required significant actions as new air lines 

had to be installed on the fuel valve and on the rear of the truck, plus the air compressor 

required a new fitting. To arrive at the Secretary’s 70% reduction in the penalty, the gravity 

was reduced to lost workdays or restricted duty. The Secretary, per his customary approach, 

does not inform whether he consulted with the issuing inspector’s view regarding this new 

assessment of the reasonably expected injury. The assertion that the cited truck is only used to 

fuel, oil, and grease equipment on level loads at slow speeds does not speak to the claim that 

lost workdays or restricted duty would result. Those claims do not translate to demonstrate that 

hazards from a fuel line leak and the improperly functioning air compressor would result in such 

diminished injuries. Nor is the association between the assertion that the brakes were properly 

working and the twin conceded defects explained. 

Further, examining the particulars in claimed support that an injury would not be fatal, 

the Respondent’s offering does not explain the relevance of the information, nor does the 

motion present the alternative injury that would result. Would the injury be permanently 

disabling, result in lost workdays, or no lost workdays at all? No explanation is offered, merely 

the bald assertion that it would not be fatal. Certainly the assertion that the cited truck is only 

used to fuel, oil, and grease equipment on level loads at slow speed does not explain the claim 

that no fatality would result. Nor does the claim that all brakes worked properly when tested, as 
19

both are of the alternative putative safety considerations not to considered. The Court, were it 

permitted, would have several questions to ask of the Respondent regarding its claim. Finally, it 

is noted that the Secretary remains mum regarding the Respondent’s claims, preferring once 

again to state only that the Court might find merit in them. 

Last, it is noted that the standard cited for this now-admitted violation requiring that 

equipment defects affecting safety shall be corrected before the equipment is used, has been cited 

63 times in the two years at this mine, a fact which should give pause by itself. Even within the 

original parent docket, WEVA 2022-0301, which entailed 33 citations, before 16 of them were 

reallocated to this docket, 12 (twelve) of the original 33 (thirty-three) citations involved violations 

of the cited subsection for this standard, 30 C.F.R. § 77.1606(c). Those numbers alone should 

make one blanch when the Secretary has agreed to a 70% (seventy percent) reduction in the 

penalty for this violation, producing a $2,287.00 (two-thousand two-hundred eighty-seven dollars) 

penalty reduction from the regularly proposed assessment. 

Reasonable Inquiry is not Permitted

Despite the Court’s analysis and concerns, regarding the three citations with significant 

penalty reductions, it is not permitted to make reasonable inquiry about the contentions advanced 

in settlement motions. This is because, under the Commission’s interpretation of section 110(k) 

of the Mine Act, Congress only intended that the three elements as laid out in AmCoal and 

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

Commission’s standard for review of settlement submissions. The settlement motion does not 

require more information from the Secretary. Accordingly, per the Commission’s decisions on 

the scope of a judge’s review authority of settlements, the “information” presented in this 

settlement motion is sufficient for approval.

The Commission has stated that the administrative law judges have “front line 

oversight” of the settlement process and as such that it is an adjudicative function that 

“necessarily involves wide discretion.” Despite those muscular words, the Commission has 

clearly set forth that the Secretary is not required to offer any comment at all as to the merits of 

the Respondent’s arguments. 

Per the Commission’s decisions in AmCoal and Rockwell Mining, to approve a settlement 

motion there are three requirements. Meeting the first two requirements is automatic and 

perfunctory.

(1) The motion must state the penalty proposed by the Secretary. 

This requirement is met in every civil penalty petition, as the petition contains the 

proposed penalty. The amount is rarely, if ever, an issue, and if in issue, it is resolved 

before the penalty petition is filed.
20

(2) The amount of the penalty agreed to in settlement. 

This requirement is also automatic; there could not be a settlement motion without the 

parties stating the penalty amount to which they have agreed.

(3) “Facts,” as the Commission has employed that term, in support of the penalty 

agreed to by the parties. 

In the context of settlement motions, “facts” have an atypical meaning.5 In discussing 

what constitute “facts” for settlements, the Commission stated “there is no requirement 

that facts supporting a proposed settlement must necessarily be submitted by the 

Secretary. Facts supporting a penalty reduction in a settlement motion may be provided 

by any party individually or by parties collectively.” AmCoal at 990. The only associated 

requirement with such “facts” is that “there is a certification by the filing party that any 

non-filing party has consented to the granting of the settlement motion.” Id. (emphasis 

added). 

Accordingly, the Commission rejected the view that a respondent’s assertions of fact 

need to “present legitimate questions of fact,” and further that the Secretary need not comment 

yea or nay to the facts asserted by a respondent. Instead, the Commission announced that “[f]acts 

alleged in a proposed settlement need not demonstrate a ‘legitimate’ disagreement that can only 

be resolved by a hearing.” Instead, the Commission allows that parties may submit facts that 

reflect a mutual position that the parties have agreed is acceptable to them . . . ” Id. 

It should not come as a surprise that, under the Commission’s AmCoal test for review of 

settlements, all such motions are approved. In the rare instances where a judge has denied a 

settlement motion, post-AmCoal, those decisions have met with reversals by the Commission. 

Hopedale Mining, 42 FMSHRC 589 (Aug. 2020), American Aggregates, 42 FMSHRC 570 

(Aug. 2020) (Chairman Traynor and Commissioner Jordan, dissenting).

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

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

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

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

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

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

therefore the motion is to be approved as appropriate. 

 5 In settlements, “facts” do not mean things that are known or proved to be true, nor does the 

term mean something that has actual existence or a piece of information presented as having 

objective reality. Fact, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/fact (accessed Nov. 18, 2021). Accordingly, in settlements, a fact does 

not mean something that is true, nor is there a requirement that a statement of fact be verifiable.
21

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

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

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

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

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

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

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

language.6 Rather, the Court’s review of settlement motions is confined to comparing the 

parties’ motion with the three criteria set forth by the Commission in its decisions in The 

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

FMSHRC 994 (Aug. 2018). 

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

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

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

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

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

$20,070.00 within 30 days of this decision.

7

 ___________________ 

William B. Moran

Administrative Law Judge

6 Nor does the Court endorse, or agree with, the assertions commonly found in the Secretary’s 

motions for approval of settlements in which the Secretary claims that a final resolution of this 

matter in which all violations are resolved is of significant enforcement value to the Secretary. 

Neither does the Court endorse or agree with the Secretary’s claim that the modifications to the 

citations are immaterial, nor with the accompanying claim that the Secretary’s evaluation of 

these citations, as modified, remain preserved for future enforcement actions. The Court has 

never been informed of any such value. Such boilerplate claims are almost always hollow, in 

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

7 It is preferred that penalties be paid electronically at Pay.Gov, a service of the U.S. Department 

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

payment (check or money order) to: 

U.S. Department of Treasury, Mine Safety and Health Administration, P.O. Box 790390, St. 

Louis, MO 63179-0390. 

It is important to include Docket and A.C. Numbers with the payment.
22

Distribution:

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

Lexington, KY 40507 kboakley@jacksonkelly.com

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

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

scott.emily.t@dol.gov

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

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