i 

January 2024 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

01-19-24 MOSENECA MANUFACTURER 

LIMITED LIABILITY COMPANY 

d/b/a AMERICAN TRIPOLI

CENT 2024-0024 Page 1

COMMISSION ORDERS 

01-04-24 PANTHER CREEK MINING, LLC WEVA 2023-0297 Page 9

01-08-24 MORTON SALT, INC. CENT 2023-0218 Page 15

01-09-24 PEABODY GATEWAY NORTH 

MINING, LLC 

LAKE 2022-0220 Page 19

01-09-24 UNITED TACONITE, LLC . LAKE 2023-0205 Page 24

01-09-24 ALLYNDALE CORPORATION YORK 2022-0075 Page 30

01-25-24 COAL-MAC LLC WEVA 2023-0154 Page 33

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-26-24 BILLY COOPER STONE CO., INC. CENT 2023-0216 Page 37

ADMINISTRATIVE LAW JUDGE ORDERS 

01-31-24 PEABODY GATEWAY NORTH 

MINING, LLC

LAKE 2023-0075 Page 46
ii 

Review Was Granted in the Following Case During The Month Of 

January 2024 

Cecil Matney, Jr. v. Rockwell Mining, LLC, Docket No. WEVA 2023-0126 

(Judge Moran, December 8, 2023) 
COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

January 19, 2024 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 on behalf of JIMMY LEE HOOVER 

v. 

MOSENECA MANUFACTURER 

 LIMITED LIABILITY COMPANY d/b/a/

 AMERICAN TRIPOLI 

 

Docket No. CENT 2024-0024 

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

DECISION 

BY THE COMMISSION: 

This temporary reinstatement proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On November 16, 2023, the 

Secretary of Labor filed an Application for Temporary Reinstatement on behalf of Jimmy Lee 

Hoover (“Hoover”) against MoSeneca Manufacturer Limited Liability Company d/b/a/ 

American Tripoli (“MoSeneca”) pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. § 

815(c)(2). 

On December 13, 2023, the Administrative Law Judge issued an Order Granting 

Temporary Reinstatement of Hoover. 45 FMSHRC __ (Docket No. CENT 2024-0024)(Dec. 13, 

2023) (ALJ). On December 15, MoSeneca filed a Petition seeking review of the Judge’s order.1

On December 21, the Judge issued an addendum to his December 13 Order. Subsequently, on 

December 22, the Commission issued an order stating that any response by the Secretary to the 

operator’s petition for review shall be filed by January 9, 2024. On January 9, the Secretary filed 

her response. For the reasons that follow, we hereby affirm the Judge’s Order Granting 

Temporary Reinstatement. 

1

 MoSeneca filed what it termed a petition for discretionary review, which the 

Commission construed as a petition seeking review of the Judge’s reinstatement order pursuant 

to 29 C.F.R. § 2700.45. 

46 FMSHRC Page 1
I.

Factual and Procedural Background 

This case involves a mill located at a mine in Newton, Missouri. The current owner, 

Russell Tidaback, has employed the miner, Jimmy Lee Hoover, at the mill since June 2021. 

While trying to start the mill on September 13, 2023, Hoover noticed that an airlock was not 

running properly because of a malfunctioning circuit breaker. Tr. 29. Hoover tried, but failed, to 

reset the circuit breaker using an external reset button on the outside of a breaker box. Sec. Ex. 3 

at 2. Hoover testified that he did not attempt to manually reset the circuit breaker because this 

would have required him to remove the cover of the breaker box, insert his hand into the box, 

and switch on the internal manual reset. The manual reset would expose his hand to an energized 

220 volt current. In the past, when the circuit breaker needed to be reset manually, Hoover had 

called maintenance staff for their assistance, but there was no maintenance staff present at that 

time. Sec. Ex. 3 at 3. 

Hoover reported the malfunctioning circuit breaker to Don Hale, his immediate 

supervisor, and together with Hale, reported it to Operations Manager John Spears. Sec. Ex. 3 at 

3. Hoover alleged that when he reported the malfunction to Spears, Spears responded that “we

got to make Russ[ell Tidaback] money.” Tr. at 33. Hoover testified that he interpreted this 

statement as an instruction to do whatever was necessary to reset the circuit breaker, including an 

internal manual reset. Tr. 59. However, Hoover refused to perform the manual reset because of 

his fear that he might be electrocuted if he inserted his hand into the energized breaker box. Tr. 

92. Hoover alleges Spears responded to Hoover’s work refusal by saying “is this how you’re

going to play it, really?” Tr. at 121. 

After this conversation with Spears, Hoover took his lunch break. Tr. 33. It is undisputed 

that Hoover was late in returning from his lunch break. Tr. 16, 228. Hale claims that when he 

informed Hoover of this delay, Hoover disrespectfully responded “I don’t care, go ahead and 

write me up.” Tr. 219. At around 8 p.m. that evening, Hale informed Russell Tidaback of 

Hoover’s delay in returning from lunch and Hoover’s alleged disrespectful response when Hale 

informed him of his late return. Resp’t Ex. H. Subsequently, Tidaback drafted a letter 

terminating Hoover. The following morning, when Hoover arrived at the mine to start his 

workday, Spears issued the termination letter to Hoover. Sec’s Ex. 2; Sec’s Ex. 3 at 3. 

 On September 25, 2023, Hoover filed a complaint with MSHA over his termination. 

Michael Dillingham, an MSHA investigator, investigated Hoover’s discrimination complaint, 

and concluded it had not been frivolously brought. Subsequently, on November 16, 2023, the 

Secretary filed an application for temporary reinstatement of Hoover. After a hearing in this 

matter, the Judge found that the Secretary had “demonstrated that the Application for Temporary 

Reinstatement was not frivolously brought.” ALJ Dec. at 7. 

The Judge found that Hoover engaged in protected activity on September 13, 2023, when 

he refused to perform a manual internal reset of the malfunctioning circuit breaker. The Judge 

used circumstantial indicia of discriminatory intent to find that there was a non-frivolous issue as 

to a motivational nexus between Hoover’s protected work refusal and his termination. Id. at 7-9. 

46 FMSHRC Page 2
The Judge noted that the operator was “permitted to present evidence and testimony throughout 

the hearing in support of [its] position” that Hoover was terminated solely for unprotected 

activity. Id. at 8. However, the Judge found that while evidence of Hoover’s unprotected activity 

“may be relevant or dispositive in a later discrimination proceeding,” for purposes of temporary 

reinstatement, such evidence simply provided an alternative theory as to why Hoover was 

terminated and was insufficient to demonstrate “that the Complainant brought forth a frivolous 

complaint.” Id at 8. 

On December 15, 2023, the operator filed a petition seeking review of the Judge’s order. 

The operator claims that the Judge erroneously found protected activity because the “ALJ’s 

conclusion is based more on subjective interpretation than on objective factual evidence.” Pet. at 

2. Moreover, the operator maintains that the protected activity played no role in Hoover’s

termination, asserting that “this is not a case in which the complainant was . . . terminated due to 

. . . [a] protected act; rather, the termination was due to . . . legitimate non-discriminatory 

reasons.” Id. at 4. 

II.

Disposition 

Under section 105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination] 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the immediate reinstatement of the miner pending final order on the 

complaint.” 30 U.S.C. § 815(c)(2). The “scope of a temporary reinstatement hearing is narrow, 

being limited to a determination by the Judge as to whether a miner’s discrimination complaint is 

frivolously brought.” See Sec’y obo Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 

1987), aff’d, 920 F.2d 738 (11th Cir. 1990); Sec’y obo Jones v. Kingston Mining, Inc., 37 

FMSHRC 2519, 2522 (Nov. 2015). The Commission reviews a Judge’s temporary reinstatement 

order under the substantial evidence standard. Sec’y obo Williamson v. Cam Mining, LLC, 31 

FMSHRC 1085, 1088 (Oct. 2009). As the Commission has recognized, “[i]t [is] not the Judge's 

duty, nor is it the Commission’s, to resolve the conflict in testimony at this preliminary stage of 

the proceedings.” Sec’y obo Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). 

“While an applicant for temporary reinstatement need not prove a prima facie case of 

discrimination, it is useful to review the elements of a discrimination claim in order to assess 

whether the evidence at this stage of the proceedings meets the non-frivolous test. In order to 

establish a prima facie case of discrimination under section 105(c) of the Act, a complaining 

miner bears the burden of establishing (1) that he engaged in protected activity and (2) that the 

adverse action complained of was motivated in any part by that activity.” Sec’y obo Williamson, 

31 FMSHRC at 1088. 

Discriminatory motive may be shown by indirect evidence establishing a motivational 

nexus between the miner’s protected activity and the adverse action. Sec’y of Labor on behalf of 

Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981) (citing NLRB v. Melrose 

Processing Co., 351 F.2d 693, 698 (8th Cir. 1965)). The Commission has held that 

discriminatory motive can be established by circumstantial evidence of: (1) knowledge of the 

46 FMSHRC Page 3
protected activity, (2) hostility or animus towards the miner regarding the protected activity, (3) 

temporal proximity, i.e. coincidence in time between the protected activity and the adverse 

action, and (4) disparate treatment of the complainant. Id. at 2510-12. 

In his decision, the Judge found that the miner had engaged in protected activity by 

allegedly refusing unsafe work. ALJ Dec. at 7. Hoover testified he was aware of a miner 

receiving an electrical shock after touching an Allen wrench located in a breaker box which was 

supposed to have been de-energized. Tr. 91-92 (“Don grabbed a Allen wrench that was in a 

breaker box and said it was shut off and he grabbed that and it lit him up. And it was supposed to 

be dead. That was in my head, too, while I was looking at this breaker box.”). Additionally, 

Hoover’s testimony that Spears told him “we got to make Russ [Tidaback] money” (Tr. 33), 

while contested, could reasonably be construed as an instruction to Hoover. 

The operator did not dispute that Hoover had a good faith reasonable belief that 

performing a manual internal reset of the circuit breaker would expose him to a perceived 

hazard. We note that the Commission has recognized a miner’s protected right to refuse work in 

the face of a perceived safety or health danger. Dykhoff v. U.S. Borax, 22 FMSHRC 1194, 1198 

(Oct. 2000) (citing Price v. Monterey Coal Co., 12 FMSHRC 1505, 1514 (Aug. 1990)). In order 

to be protected, “work refusals must be based upon the miner’s good faith, reasonable belief in a 

hazardous condition.” Dykhoff, 22 FMSHRC at 1198. As a result, the Judge appropriately 

determined that Hoover’s alleged refusal to perform an alleged unsafe act – a manual internal 

reset of the circuit breaker – raised a non-frivolous claim that he engaged in protected activity. 

Therefore, we find that substantial evidence demonstrates a non-frivolous claim that Hoover, by 

refusing to perform the unsafe act, engaged in protected activity. 

In its petition seeking review of the Judge’s order, the operator claims that the Judge’s 

determination that the miner engaged in protected activity was not based on any direct orders or 

explicit actions, but on circumstantial evidence. In support of this position, Respondent cited 

evidence that it submitted at hearing that no member of Respondent’s management ordered 

Hoover to place his hand inside the energized breaker box. However, the ALJ addressed this 

evidence, noting the existence of countervailing “circumstantial evidence that it is management’s 

expectation that a miner do whatever is necessary, when maintenance is not available, to get the 

mill up and running.” ALJ Dec. at 7. The Judge noted this conflict in the testimony, but 

appropriately did not resolve the conflict or make credibility determinations. Id. at 8 (citing Sec’y 

of Labor obo Williamson, 31 FMSHRC at 1089) (Resolving conflicts in the testimony, and

making credibility determinations in evaluating the Secretary’s prima facie case are simply not 

appropriate “at this stage in the proceeding.”). Conflicts in the evidence should be resolved at the 

hearing on the merits. 

In addition to finding protected activity, the Judge also found that it is undisputed that the 

miner suffered an adverse employment action, in that he was discharged. ALJ Dec. at 7. 

Substantial evidence supports this finding as well. 

The Judge determined that the Secretary had raised a non-frivolous issue as to whether 

there was a motivational connection between the protected activity and the adverse employment 

action. The Judge found that it was undisputed that the miner suffered an adverse employment 

46 FMSHRC Page 4
action the day after he alleged to have engaged in protected activity. ALJ Dec. at 7. Finally, the 

Judge determined that Secretary raised non-frivolous issues as to whether Respondent had 

knowledge of Hoover’s alleged protected activity and whether Respondent displayed animus 

towards that alleged protected activity. Id. at 7-8. On appeal, the operator does not challenge the 

Judge’s findings regarding temporal proximity and knowledge. Pet. at 1-5. The Judge’s 

undisputed findings “can be sufficient by themselves to establish a nexus between the protected 

activity and the adverse action.” Sec’y obo Roger Cook v. Rockwell Mining, LLC, 43 FMSHRC 

157, 163 (Apr. 2021) (citing Sec'y of Labor on behalf of Stahl v. A&K Earth Movers Inc., 22 

FMSHRC 323, 325-26 (Mar. 2000)).

In response to the Secretary’s presentation regarding discrimination, Respondent asserted 

that it had terminated Hoover solely for unprotected activity – misconduct and poor performance. 

Pet. at 2. However, the Judge appropriately declined to rule on the operator’s theory that Hoover 

was terminated solely for his unprotected activity. As noted previously, the Judge’s role during 

temporary reinstatement proceedings is to simply determine whether substantial evidence 

established that the discrimination complaint was nonfrivolous. Jim Walter, 920 F.2d at 744. In 

this case, ruling on the operator’s theory would have required the Judge to go beyond the 

nonfrivolous standard to impermissibly weigh evidence and/or render credibility determinations. 

CAM Mining, LLC, 31 FMSHRC at 1089. Therefore, the Judge appropriately declined to 

consider Respondent’s argument at the temporary reinstatement stage. 

 

46 FMSHRC Page 5
III.

Conclusion 

Substantial evidence supports the Judge’s finding that the Secretary demonstrated that the 

Application for Temporary Reinstatement was not frivolously brought. Therefore, the Judge’s 

order granting temporary reinstatement is affirmed. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

46 FMSHRC Page 6
Distribution: 

Russell Tidaback 

American Tripoli 

222 Oneida Street 

Seneca, MO 64865 

RTidaback@deedyco.com 

Jimmy Lee Hoover 

1630 Cottage Ln. 

Seneca, MO 64865 

Hooverj9233@gmail.com 

Alexandra J. Gilewicz, 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 

Gilewicz.alexandra.j@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 

 

46 FMSHRC Page 7
Melanie Garris 

Civil Penalty Compliance Division Chief 

U.S. Department of Labor 

Office of Assessments 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@dol.gov 

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 520 N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Administrative Law Judge David Simonton 

Federal Mine Safety and Health Review Commission 

Office of the Chief Administrative Law Judge 

721 19th St. Suite 443 

Denver, CO 80202-2536 

dsimonton@fmshrc.gov 

46 FMSHRC Page 8
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

January 4, 2024 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

PANTHER CREEK MINING, LLC

Docket No. WEVA 2023-0297 

A.C. No. 46-05437-569447 

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

ORDER

BY: Jordan, Chair; Rajkovich, and Baker, Commissioners 

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2018) (“Mine Act”). On April 25, 2023, the Commission received from Panther Creek 

Mining, LLC (“Panther Creek”) a motion to reopen a final order of the Commission pursuant to 

section 105(a) of the Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered to the operator on January 17, 

2023, and became a final order of the Commission on February 16, 2023, after Panther Creek did 

not contest the penalties. In the assessment, MSHA had proposed a total civil penalty of $75,601 

for the 49 citations at issue. 

46 FMSHRC Page 9
On April 3, 2023, after failing to receive payment, the Secretary sent the operator a 

delinquency notice. On approximately April 17, 2023, MSHA delivered a scofflaw letter to the 

mine, which stated that if the operator did not pay the delinquent penalties within 30 days MSHA 

may take further action. The operator filed the subject motion to reopen on April 25, 2023. On 

May 17, 2023, MSHA issued a citation to Panther Creek alleging a failure to pay. 

In the subject motion to reopen, Panther Creek maintains, without further explanation, 

that an internal “administrative error” delayed routing of the assessment to its Corporate Safety 

Director and thus its ability to timely file. The Secretary opposes reopening. She asserts that the 

operator has failed to establish that its failure to timely file was the result of an atypical mistake 

and not the result of an inadequate processing system. Furthermore, the operator has failed to 

establish that it has been acting in good faith. 

When filing a motion to reopen before the Commission the operator bears the burden of 

showing exceptional circumstances. Lone Mountain Processing, Inc., 35 FMSHRC 3342, 3345 

(Nov. 2013). Relief under Rule 60(b) requires more than “general assertions or conclusory 

statements as to why an operator failed to timely contest.” Sw. Rock Prods., 45 FMSHRC __ 

(August 30, 2023) (citing Atlanta Sand & Supply Co., 30 FMSHRC 605, 608 (July 2008). 

Although the Commission may consider motions to reopen filed within 30 days of the 

operator’s receipt of its first notice of delinquency to be filed within a reasonable amount of 

time; the motion must also “set forth an adequate explanation for its reasons for its delinquency.” 

See Highland Mining Company, 31 FMSHRC 1313, 1316-17 (Nov. 2009). “At a minimum, the 

applicant for such relief must provide all known details, including relevant dates and persons 

involved, and a clear explanation that accounts, to the best of the operator's knowledge, for the 

failure to submit a timely response and for any delays in seeking relief once the operator became 

aware of the delinquency or failure. . . .” Lone Mountain, 35 FMSHRC at 3345 (citing Higgins 

Stone Co., 32 FMSHRC 33, 34 (Jan. 2010)). 

Panther Creek’s motion lacks these required details. Its motion does not include relevant 

dates or a description of the processing error.1 Accordingly, it has failed to demonstrate that its 

“administrative error” was excusable and not the foreseeable result of its own unreliable internal 

processing system. It is well established that an inadequate or unreliable internal processing 

system does not constitute inadvertence, mistake or excusable neglect so as to justify the 

reopening of an assessment which has become final under section 105(c) of the Mine Act. 

Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 

1066, 1067 (Dec. 2008); Highland Mining Co., 31 FMSHRC 1313, 1315 (Nov. 2009): Double 

1 Cf. Heidelberg Materials, US Cement, LLC, 45 FMSHRC ___ (Dec. 6, 2023) (finding 

that the operator established that its failure to timely file to contest three citations was the result 

of a good cause). In Heidelberg Materials, the operator’s motion described the error with 

particularity, i.e., an employee neglected to transmit a single page of the contest form when 

timely filing to contest penalties listed on the proposed assessment. 

46 FMSHRC Page 10
Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Elk Run Coal Co., 32 FMSHRC 1587, 

1588 (Dec. 2010).2

 

Furthermore, Panther Creek has not demonstrated good faith efforts to comply with the 

Commission’s filing deadlines. The operator received 49 citations over 18 days and thus should 

have been aware that it would be receiving a sizable proposed penalty assessment. Nevertheless, 

it does not cite to any efforts it took to either contest or reopen the penalties until after it received 

both a delinquency letter and a scofflaw letter. It is well recognized that a movant’s good faith or 

lack thereof is an important factor in determining whether good cause exists to reopen a final 

order. See, e.g., Stone Zone, 41 FMSHRC 272, 274 (June 2019) (citations omitted). 

For these reasons, Panther Creek’s motion is DENIED with prejudice.3

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

2

 This is not the first instance where Panther Creek sought reopening of a final order of 

the Commission after an alleged error prevented timely filing of the contest form. See Panther 

Creek Mining, LLC, 40 FMSHRC 1158 (Aug. 2018) (reopening a final order after the assessment 

was not timely contested because the assessment was “mishandled” at the mine). Notably, the 

operator thereafter changed its address of record from a P.O. Box to the corporate office in an 

attempt to prevent further mishandlings of penalty assessments. Id. at 1159. Clearly, the 

operator’s efforts were ineffective. 

3

 In its reply to the Secretary’s response, the operator contends that the Secretary failed to 

demonstrate prejudice or that the default was warranted. However, we have long held that it is 

the operator, not the Secretary, who has the burden of showing that it is entitled to such 

extraordinary relief. See, e.g., Noranda Alumina, 39 FMSHRC 441, 443 (Mar. 2017). 

46 FMSHRC Page 11
Commissioner Althen dissenting, 

I respectfully dissent. 

The pleadings demonstrate that MSHA provided a notice of a delinquency to Panther 

Creek through a letter mailed on April 3, 2023. In turn, Panther Creek filed its motion to reopen 

on April 25, 2023—a short period after receiving the notice from MSHA. 

Binding Commission precedent holds, “Motions to reopen received within 30 days of an 

operator’s receipt of its first notice from MSHA that it has failed to timely file a notice of contest 

will be presumptively considered as having been filed within a reasonable amount of time.” 

Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009). Indeed, the Commission 

reaffirmed, or at least restated, this principle a few days ago. Heidelberg Materials, US Cement, 

LLC, 45 FMSHRC ___ (Dec. 6, 2023). 

Because Panther Creek’s motion fits within this timeline, the majority cannot find 

unreasonableness in the delay in filing. Ignoring the reasonableness of the operator’s timing of 

its motion, the majority complains that the employee’s affidavit swearing to an administrative 

error was insufficient to warrant reopening or even an opportunity for further explanation. 

Panther Creek’s contest system failed in this instance, but there is no evidence of a 

systematic failure. Instead, Panther Creek described a straightforward and simple system for 

contesting penalties. According to Panther Creek’s affidavit, the system involves an 

administrative employee scanning proposed assessments when they are received and then 

directing them to the corporate safety director. The corporate safety director then reviews the 

citations and files timely notices on those Panther Creek wishes to contest. This appears to be a 

sensible two-step and an ordinarily reliable system for dealing with citations. If every singular 

failure to file on a timely basis is taken as a per se demonstration of an unreliable processing 

system, operators may look forward to few, if any, approvals of reopening. 

The occurrence of a mistake is self-evident. The administrative staff tasked with scanning 

and forwarding the proposed assessment failed to follow normal procedure in this instance. 

Panther Creek filed a proper affidavit attesting to the error. Nonetheless, the majority forecloses 

a contest of more than $75,000 in assessed penalties because they find Panther Creek did not 

explain adequately the exact minutiae that lead to the administrative error. The Commission has 

not required a detailed explanation of an “administrative error” to reopen a case. U.S. Silver – 

Idaho, Inc., 33 FMSHRC 1044, 1045 (May 2011). 

46 FMSHRC Page 12
Having avowed they recognize that default is a harsh remedy, the majority should have 

granted the motion or, minimally, should have provided Panther Creek an opportunity to provide 

any desired information. Such inquiries have been made in the past and are consistent with 

recognition of harsh result rather than the back of the hand rejection in this case. See, e.g., 

Callender Constr. Co., 44 FMSHRC 536 (Aug. 3, 2022), Lafarge Aggregates Southeast, Inc., 31 

FMSHRC 555 (May 2009) (granting the motion to reopen after the Commission initially denied 

without prejudice to allow the operator to refile and explain the “administrative error”). 

/s/ William I. Althen 

William I. Althen, Commissioner 

Distribution: 

Jonathan R. Ellis, Esq. 

Justin K. Chandler, Esq. 

Steptoe & Johnson PLLC 

707 Virginia Street, East, Seventeenth Floor 

P.O. Box 1588 

Charleston, WV 25326-1588 

jonathan.ellis@steptoe-johnson.com 

justin.chandler@steptoe-johnson.com 

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 

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 

46 FMSHRC Page 13
Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

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 

46 FMSHRC Page 14
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

January 8, 2024 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

MORTON SALT, INC. 

Docket No. CENT 2023-0218 

A.C. No. 16-00970-574494 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). On June 23, 2023,1

 the Commission received from Morton Salt, 

Inc. (“Morton”), a motion seeking to reopen a penalty assessment that had become a final order 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on April 11, 2023. On May 11, 

2023, MSHA received partial payment in the amount of $3,030.00 for 12 of the 16 citations 

1

 On July 19, 2023, Morton filed an Amended Motion to Reopen correcting a referenced 

citation number from 9673919 to 9674919. 

46 FMSHRC Page 15
listed on the proposed assessment. On May 17, 2023, the assessment became a final order of the 

Commission with respect to the penalties of the remaining four citations. On July 3, 2023, 

MSHA sent the operator a delinquency notice. 

Morton states that on April 26, 2023, it checked the boxes on the proposed assessment to 

indicate that it was contesting Citation Nos. 9676699, 9674919, 9674924, and 9674925. The 

operator maintains that it had also sent a conference request on March 3, 2023, for Citation Nos. 

9674924 and 9674925 but received no response. Morton submits that although its EHS Manager 

timely completed the contest form, he inadvertently failed to mail or email the form. It contends 

that it will make the required change to its process to be sure that this error does not occur again. 

The operator requests that the Commission reopen the penalty assessment to permit Morton to 

contest the four citations. 

The Secretary opposes the operator’s motion to reopen. The Secretary argues that Morton 

has failed to timely contest proposed assessments in the past, and that the repeated failures 

indicate that the operator has an unreliable system for processing assessments. The Secretary 

further disputes that MSHA failed to respond to its conference request. She also notes that the 

operator has reason to pay particular attention to its citations and penalties because the operator’s 

mine has been notified that it has a pattern of violations and two of the citations (Nos. 9674924 

and 9674925) were designated as significant and substantial in nature.2

Consistent with the Secretary’s submission, the Commission has previously reopened 

penalty assessments issued to Morton that became final due to the operator’s inadvertence or 

mistake in processing its proposed assessments. Morton Salt, Inc., 44 FMSHRC 533 (Aug. 

2022); Morton Salt, Inc., 45 FMSHRC ___, No. CENT 2022-0237 (May 16, 2023). The 

Commission has recognized that repeated motions to reopen may indicate an inadequate or 

unreliable internal processing system. Rockwell Mining, LLC, 45 FMSHRC ___, Nos. WEVA 

2022-0467, et al. (June 29, 2023). Although Morton has stated that it will take action to prevent 

such a reoccurrence in the future, it has not identified the steps it will take. 

In addition, it appears that MSHA responded to the operator’s request for a conference 

and provided information about contest procedures. An attachment to the Secretary’s opposition 

reveals that on April 18, 2023, the operator sent MSHA an email acknowledging that it had 

received the proposed assessment on April 11, 2023, that it had 30 days to contest the citations 

on the assessment, and that the operator had requested a conference on Citation No. 9674919 on 

March 8, 2023, and on Citation Nos. 9674924, and 9674925 on March 16. MSHA responded by 

email dated April 25, 2023, that those citations had been assessed and were not eligible for a 

conference, and that if the operator wished to contest the citations, it would “need to select the 

citation on the assessment form and return the contested assessment form to the assessment 

office.” Attach. D. 

2

 Section 104(e)(1) of the Mine Act provides that if an operator has a pattern of violations 

of mandatory health or safety standards which are of such nature as could significantly and 

substantially contribute to the cause and effect of health or safety hazards, it shall be given 

written notice that such a pattern exists. If, within 90 days following issuance of the POV notice, 

an inspector cites the operator for a significant and substantial violation, then MSHA may issue a 

withdrawal order under section 104(e) of the Act. 30 U.S.C. § 814(e)(1). 

46 FMSHRC Page 16
 The Commission has made it clear that where a failure to contest a proposed assessment 

results from an inadequate or unreliable internal processing system, the operator has not 

established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC 

3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103. 104 (Feb. 2011); Double 

Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC 

1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle 

Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). 

We find that Morton has not asserted good cause for its failure to timely contest the 

proposed penalties. See Marfork Coal Co., 45 FMSHRC ___, No. WEVA 2023-0043 (June 23, 

2023) (denying a motion to reopen when the operator neglected to fix problems with its internal 

procedures). The motion is DENIED WITH PREJUDICE. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

46 FMSHRC Page 17
Distribution: 

Donna Vetrano Pryor, Esq. 

Husch Blackwell LLP 

1801 Wewatta Street, Suite 100 

Denver, CO 80202 

donna.pryor@huschblackwell.com 

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 

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 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

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 

46 FMSHRC Page 18
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

January 9, 2024 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

PEABODY GATEWAY NORTH 

MINING, LLC 

 

Docket No. LAKE 2022-0220 

A.C. No. 11-03235-556483 

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

 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). On February 10, 2023, the Commission received from Peabody 

Gateway North Mining, LLC (“Peabody Gateway”) a motion seeking to reopen a penalty 

assessment proceeding and relieve it from the Default Order entered against it. 

 On November 9, 2022, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to Peabody Gateway’s perceived failure to answer the Secretary of Labor’s 

September 8, 2022 Petition for Assessment of Civil Penalty. By its terms, the Order to Show 

Cause was deemed a Default Order on December 9, 2022, when it appeared that the operator had 

not filed an answer within 30 days. 

Peabody Gateway asserts that its part-time contractual Safety Manager acted with 

excusable neglect in failing to submit a timely answer to the Petition here, primarily because he 

was distracted and preoccupied by the fact that his “elderly father was injured and hospitalized” 

during the relevant period. Peabody Decl. Ex. A. According to the operator, the part-time Safety 

Manager processes assessments along with the mine’s site safety manager. The part-time Safety 

Manager received the Petition for Assessment of Civil Penalty but was on travel for an audit. 

Due to being distracted from his father’s medical situation, upon returning the Safety Manager 

inadvertently misread the Petition as an Entry of Appearance from the Secretary’s Trial Attorney 

who issued the Petition. Furthermore, when he received the Commission’s Order to Show Cause 

and Order of Default, he asserts he inadvertently misread it because it contained the term 

“COVID-19” in the subject line. According to the Safety Manager, he “receive[s] many emails 

with ‘COVID-19’ in the subject line which are informational and do not require a response and . 

. . [he thus] mistakenly believed this email to be irrelevant.” Id. Peabody Gateway asserts that the 

Safety Manager’s misreading of the Petition and Order to Show Cause was contributed to by his 

family’s medical incident, which took some of his “attention away from work” and prolonged 

the time it took him to realize that he had missed these documents to file a timely Answer to the 

Petition. Id. The operator’s counsel filed the motion to reopen after learning of these errors. The 

46 FMSHRC Page 19
Secretary does not oppose the request to reopen, but notes that he may oppose future requests to 

reopen penalty assessments that are not answered in a timely manner. 

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. § 

2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct 

review within 40 days of a decision’s issuance, it becomes a final decision of the Commission. 

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the 

Commission. 

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

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

from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or 

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

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

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

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

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

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

46 FMSHRC Page 20
Having reviewed Peabody Gateway’s request and the Secretary’s response, we find that 

the operator acted with excusable neglect, particularly in light of his family member’s medical 

situation. The operator, however, should reassess its procedures to ensure that future answers are 

properly filed. In the interest of justice, we hereby reopen the proceeding and vacate the Default 

Order. Accordingly, this case is remanded to the Chief Administrative Law Judge for further 

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

2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

46 FMSHRC Page 21
Distribution: 

Arthur M. Wolfson, Esq. 

Fisher & Phillips LLP 

Six PPG Place 

Suite 830 

Pittsburgh, PA 15222 

awolfson@fisherphillips.com 

Vivian Tyree, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

230 S. Dearborn St., Room 844 

Chicago, IL 60604 

SOL.CHI@dol.gov 

Emelda Medrano, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

230 S. Dearborn St., Room 844 

Chicago, IL 60604 

medrano.emelda@dol.gov 

Chad Barras 

Peabody Gateway North Mining 

LLC, P.O. Box 369 

Coulterville, IL 62237 

cbarras@peabodyenergy.com 

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 

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 

46 FMSHRC Page 22
Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV

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 

46 FMSHRC Page 23
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

January 9, 2024 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

UNITED TACONITE, LLC, 

Docket No. LAKE 2023-0205 

A.C. No. 21-03404-570153 

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

ORDER

BY: Jordan, Chair; Rajkovich and Baker, Commissioners 

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

801 et seq. (2018) (“Mine Act”). On June 23, 2023, the Commission received from United 

Taconite, LLC (“United”), a motion seeking to reopen a penalty assessment that had become a 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered to the operator on January 24, 

2023. On February 23, 2023, the assessment became a final order of the Commission. 

United Taconite argues that staffing changes caused its failure to timely file a contest of 

twenty civil penalties listed on the proposed assessment. It explains that its Senior Safety 

46 FMSHRC Page 24
Specialist, who makes the decisions about which citations and penalties to contest, was working 

in another department at the time of the issuance of the proposed assessment. In addition, the 

operator’s safety manager, who managed the proposed assessment forms, was permanently 

transferred to another department on February 16, 2023, and a new health and safety specialist 

was hired on January 20, 2023. United Taconite states that when its safety manager departed on 

February 16, he handed mail, which included the proposed assessment, to the new safety 

specialist without providing any instructions. No action was taken on the proposed assessment. 

After the Senior Safety Specialist returned to the safety department, he received a delinquency 

notice and contacted outside counsel.1 On April 24, 2023, he trained the newly hired safety 

specialist on procedures for handling MSHA assessments. United Taconite explains that any 

further delay after receiving the delinquency notice was the result of counsel’s investigation, 

preparation of the motion to reopen, and counsel’s litigation schedule. Mot. at 6. 

 The Secretary opposes the operator’s motion to reopen. The Secretary states that on 

March 15, 2023, MSHA received partial payment for three citations. On April 10, 2023, MSHA 

sent United Taconite a delinquency notice. On May 1, 2023, MSHA received another partial 

payment for 9 of the 59 citations. On June 2, 2023, MSHA issued United Taconite a demand 

letter stating that the operator must pay a total of $70,737 within 30 days or MSHA would take 

additional enforcement action. On July 14, 2023, MSHA issued a citation alleging that United 

Taconite had violated the Mine Act through its failure to pay. 

 In opposing United Taconite’s motion, the Secretary argues that the operator’s 

explanation that no action had been taken on the proposed assessment because there were 

personnel changes and that the newly hired safety specialist did not know the payment or contest 

process “boils down to inadequate procedures for responding to proposed penalties.” Sec’y 

Response at 7. The Secretary asserts that the operator should have been more careful with the 

filing of the contests in this case given the large penalties proposed. She submits that although 

the new safety specialist was later trained, it did not address the inadequate procedures in this 

case. The Secretary contends that United Taconite filed its motion to reopen over 2 months after 

MSHA sent it a delinquency letter. 

The Commission has made it clear that where a failure to contest a proposed assessment 

results from an inadequate or unreliable internal processing system, the operator has not 

established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC 

3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double 

Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC 

1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle 

1

 We note that our dissenting colleague states that when the Senior Safety Specialist 

received the notice of delinquency, he immediately returned the penalty assessment noting 20 

citations the operator wished to contest. Slip op. at 4. Although the proposed penalty assessment 

form is signed and dated April 20, 2023, there are no allegations in the record that the operator 

returned the contest form to MSHA on or near that date. Rather, the contest form appears in the 

record as an attachment to the operator’s June 23 motion to reopen. See, e.g., Ex. C 001 

(affidavit of senior safety specialist stating that once he became aware of the delinquency notice, 

he contacted the outside counsel’s paralegal who informed him that it would be necessary to file 

a motion to reopen). 

46 FMSHRC Page 25
Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). United Taconite did not provide the 

employee with training on proposed assessments, or otherwise remedy the confusion resulting 

from the staffing changes, for over two months. This amounts to an inadequate or unreliable 

internal processing system. 

In addition, United Taconite failed to file the motion to reopen within a reasonable time. 

The Commission has previously held that “[m]otions to reopen received within 30 days of an 

operator’s receipt of its first notice from MSHA that it has failed to timely file a notice of contest 

will be presumptively considered as having been filed within a reasonable amount of time.” 

Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009). The operator’s June 23 motion 

to reopen was filed months after it received the April 11 delinquency letter and weeks after 

MSHA sent the operator a demand letter. 

We find that United Taconite has not asserted good cause for its failure to timely contest 

the proposed penalties. See Moose Lake Aggregates, LLC, 34 FMSHRC 1, 2-3 (Jan. 2012) 

(denying a motion to reopen when the operator had deficient internal procedures and failed to 

file motion within a reasonable time). The motion is denied with prejudice. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

46 FMSHRC Page 26
Commissioner Althen, dissenting: 

I respectfully dissent. 

This motion to reopen involves an attempt by United Taconite to challenge 20 citations 

totaling nearly $70,000 in proposed penalties. 

The facts are not contested. A United Taconite Safety Specialist oversaw dealing with 

assessments. When he temporarily left his department in June 2022, a safety manager took over 

processing citations. However, that safety manager left that position virtually simultaneously 

with the receipt of the subject assessments. A new person replaced him but did not know the 

contents of the envelopes left behind. 

In March, the Safety Specialist who had been on temporary reassignment returned and 

went over outstanding issues with the new Safety Specialist who had been unaware of the 

citations. At that point, the assessments were discovered. 

When the Senior Safety Specialist found the notice of delinquency, he immediately 

returned the penalty assessment noting 20 challenged citations demonstrating its desire to contest 

those citations. United Taconite also responsibly turned the filing of a formal motion over to 

outside counsel. A paralegal for outside counsel affirmed via affidavit that United Taconite 

contacted her on April 21, 2023, regarding the delinquency notice that had been mailed by the 

Secretary on April 10, 2023. Writing with great integrity, the law firm acknowledges in the 

motion it filed that: 

Any further delay beyond the initial discovery of the delinquent Assessment [midApril] upon receipt of the delinquency notice make April 3, was the result of 

counsel for United Taconite’s investigation of this matter, preparation of the 

Motion to Reopen and related documents, and counsel’s additional litigation 

schedule. 

Mot. to Reopen at 6 (June 8, 2023). 

 

United Taconite proved that it recognized its error and acted to correct it virtually 

immediately upon receiving first notice of delinquency. Within the last few days, the 

Commission reaffirmed a long-established position regarding timely recognition of an error. 

The Commission has held that quick action after recognizing an error militates in 

favor of reopening. “Motions to reopen received within 30 days of an operator’s of 

its first notice from MSHA that it has failed to timely file a notice of contest will be 

presumptively considered as having been filed within a reasonable amount of time.” 

Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 2009). 

46 FMSHRC Page 27
Heidelberg Materials, US Cement, LLC v. Sec’y, 45 FMSHRC ___ (Dec. 6, 2023). 

Undoubtedly, United Taconite’s immediate action upon receipt of receiving notice of the 

error compels a finding of good faith. If the operator had typed a note asking to reopen with the 

submission, it unquestionably would be presumptively considered to have filed its motion within 

a reasonable time. Ignoring the operator’s quick action, the majority uses a technicality that 

United Taconite did not file a “motion” to reopen but instead, acting reasonably, turned to its 

outside counsel. 

The majority finds a reason to find a default of 20 citations comprising a very large 

penalty amount because United Taconite turned to its attorneys and the attorneys took two 

months to file the formal motion. The Secretary does not assert any prejudice because of the 

delay in filing a formal motion challenging the citations that the operator quickly contested upon 

receiving a notice of delinquency. Cf. Long Branch Energy, 34 FMSHRC 1984, 1991 (showing 

leniency to the Solicitor for failing to file timely during a period of increased litigation when 

actual prejudice could not be shown). Under these circumstances, United Taconite provided 

timely notice of its desire to challenge and an explanation of reasons for its failure to file within 

30 days of receipt of the citations. 

Apparently recognizing that United Taconite acted with promptness to notify MSHA and 

the Commission of its desire to contest citations, the majority also finds that United Taconite had 

an unreliable internal processing system. That allegation is false. 

These facts do not show an unreliable system. They show a sui generis situation in which 

turnover of staff simultaneously with the temporary absence of a Safety Specialist led to a brief 

delay in recognizing and dealing with the assessments. With the Safety Specialist’s return and 

within 30 days of first notice, United Taconite served notice of its desire to contest the 20 

citations. In short, a reliable internal system was temporarily disrupted by the simultaneous 

absence of the prior safety manager and the temporarily reassigned Safety Specialist. 

This case does not reflect poor internal processing or lack of expedition by United 

Taconite. It is a singular event caused by staff turnover. Yet, the majority reviews United 

Taconite’s quick action and finds no difficulty in refusing it the opportunity to contest penalties 

totaling a very high amount. 

The majority’s opening paragraph purports to recognize that default is a harsh remedy. 

Institutions are known for the actions they take not the high-sounding words they write. The 

majority’s decision belies their words. 

/s/ William I. Althen 

William I. Althen, Commissioner 

46 FMSHRC Page 28
Distribution: 

Patrick W. Dennison, Esq. 

Fisher & Phillips LLP 

6 PPG Place 

Suite 830 

Pittsburgh, PA 15222 

pdennison@fisherphillips.com 

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 

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 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

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 

46 FMSHRC Page 29
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

January 9, 2024 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

ALLYNDALE CORPORATION 

Docket No. YORK 2022-0075 

A.C. No. 06-00001-560427 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2018) (“Mine Act”). The Commission has received a motion from the operator

seeking to reopen a penalty assessment which had become a final order of the Commission 

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a).  The Secretary states that he does 

not oppose the motion. 

46 FMSHRC Page 30
Having reviewed movant’s unopposed motion to reopen, we reopen this matter and 

remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.  Consistent with Rule 28, the 

Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.  

See 29 C.F.R. § 2700.28. 

The granting of this motion is not precedential for the consideration of any other motion 

before the Commission.  

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chai 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

46 FMSHRC Page 31
Distribution: 

Louis Allyn 

Allyndale Corporation 

40 Allyndale Road 

P.O. Box 265 

East Canaan, CT 06024-0265 

allyndalecorp@gmail.com 

Bruce H. Jakubauskas 

U.S. Department of Labor 

Mine Safety and Health Administration 

Thorn Hill Industrial Park 

178 Thorn Hill Rd, Suite 100 

Warrendale PA 15086 

jakubauskas.bruce@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 

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 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV

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 

46 FMSHRC Page 32
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

January 25, 2024 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

COAL-MAC LLC 

 Docket No. WEVA 2023-0154 

A.C. No. 46-08249-569568 

Docket No. WEVA 2023-0155 

A.C. No. 46-08984-569574 

Docket No. WEVA 2023-0156 

A.C. No. 46-09075-569575 

Docket No. WEVA 2023-0192 

A.C. No. 46-08918-571114 

Docket No. WEVA 2023-0196 

A.C. No. 46-08249-571110 

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

 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). On August 24, 2023, the Commission received from Coal-Mac, 

LLC (“Coal-Mac”) a motion seeking to reopen five penalty assessment proceedings and relieve 

it from the Default Orders entered against it.1

 

In each of the captioned proceedings, the Chief Administrative Law Judge issued an 

Order to Show Cause in response to Coal-Mac’s perceived failure to answer the Secretary of 

Labor’s Petition for Assessment of Civil Penalty. The Secretary filed the relevant petitions on 

March 16 (Docket Nos. WEVA 2023-0154, WEVA 2023-0155, WEVA 2023-0156), March 30 

(WEVA 2023-0192) and April 4, 2023 (WEVA 2023-0196). The Chief Judge issued Orders to 

Show Cause on May 16, May 30 and June 5, 2023, respectively, which were deemed Default 

Orders on June 16, June 30 and July 6, 2023, when it appeared that the operator had not filed an 

answer within 30 days. 

Coal-Mac asserts, without further detail, that the captioned proceedings are in default 

because its Safety Manager was unfamiliar with the contest process and made mistakes. The 

Secretary opposes the request to reopen. The Secretary argues that the claim of “error” is 

insufficiently detailed to justify reopening, and that the Safety Manager’s lack of familiarity with 

1

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

Secretary’s motion to consolidate the captioned docket numbers involving similar procedural 

issues. 29 C.F.R. §2700.12. 

46 FMSHRC Page 33
the contest process indicates inadequate internal procedures. The Secretary also claims the 

proceedings are moot because the relevant penalties have all since been paid. Finally, the 

Secretary argues that the operator failed to identify facts that, if proven on reopening, would 

constitute a meritorious defense. 

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. § 

2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a Judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct 

review within 40 days of a decision’s issuance, it becomes a final decision of the Commission. 

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the 

Commission. 

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

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

from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or 

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

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

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

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

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

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

However, we emphasize that the party seeking to reopen a final penalty bears the burden 

of showing that it is entitled to such relief, through a detailed explanation of its failure to timely 

respond. Revelation Energy, LLC, 40 FMSHRC 375, 375-76 (Mar. 2018). General assertions or 

conclusory statements are insufficient. Southwest Rock Prod., Inc., 45 FMSHRC __, No. WEST 

2021-0275 (Aug. 30, 2023). At a minimum, the applicant must provide all known details, 

including relevant dates and persons involved, and a clear explanation that accounts, to the best 

of the operator’s knowledge, for the failure to submit a timely response. Higgins Stone Co., 32 

FMSHRC 33, 34 (Jan. 2010). Here, Coal-Mac provides only a cursory explanation for its failure 

to respond to the Secretary’s Petition and Chief Judge’s Order, simply stating that the safety 

manager was unfamiliar with the contest process and that the proceedings defaulted due to his 

“error.” We find that Coal-Mac has failed to meet its burden of showing that it is entitled to 

relief.

We have also held that operators are responsible for properly training all personnel who 

handle proposed assessments, and that failure to properly train such employees indicates an 

inadequate or unreliable internal processing system. Cumberland Contura, LLC, 40 FMSHRC 

1129, 1130 (Aug. 2018); Rogers Group, Inc., 39 FMSHRC 1551, 1554 (Aug. 2017); Kentucky 

Fuel Corp., 38 FMSHRC 632, 634 (Apr. 2016). The Commission has made it clear that, where 

an operator fails to properly contest an assessment due to an inadequate or unreliable system, the 

operator has not established grounds for reopening. Oak Grove Res., LLC, 33 FMSHRC 103, 104 

(Feb. 2011); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining 

Co., 31 FMSHRC 1313, 1315 (Nov. 2009). Here, Coal-Mac asserts that its safety manager erred 

46 FMSHRC Page 34
because he was new to contesting assessments and lacked the proper knowledge.2

 This strongly 

suggests that the safety manager did not receive adequate training prior to being placed in charge 

of this task. 

Having reviewed Coal-Mac’s request and the Secretary’s response, we conclude that the 

operator failed to establish good cause for reopening the captioned proceedings. Coal-Mac’s 

motion to reopen provides no explanation for its failure to timely answer the Petition or respond 

to the Show Cause Order beyond a general statement of “error.” We also find indications of an 

inadequate internal processing system. Accordingly, Coal-Mac’s request to reopen is denied with 

prejudice. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chai 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

2

 The Secretary questions the validity of Coal-Mac’s claim of inexperience, noting the 

operator’s size and its history of successfully navigating the contest process. While we do not 

question the Safety Manager’s statement that he lacked knowledge regarding the contest process, 

we note that the operator (as a whole) clearly has experience with the process and reiterate that 

operators bear the responsibility of training their personnel. 

46 FMSHRC Page 35
Distribution: 

Adam Gross 

Safety Manager 

Coal-Mac LLC 

1245 22 Mine Road 

Holden, WV 25625 

Adam.gross@jmpholdingsllc.com 

Nicholas Smallwood 

Safety Manager 

Coal-Mac LLC 

P.O. Box 1050 

Holden, WV 25625-1050 

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 

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 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

46 FMSHRC Page 36
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE 

721 19th ST. SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

January 26, 2024 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

BILLY COOPER STONE CO., INC., 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. CENT 2023-0216 

A.C. No. 41-03401-578784 

Mine: Cooper Stone 

DECISION AND ORDER 

Appearances: Maria C. Rich-DoByns, CLR, U.S. Department of Labor, MSHA, 1100 

Commerce Street, Room 462, Dallas, TX 75242 

 Micah Flippen, Billy Cooper Stone Co., Inc., P.O. Box 678, Jarrell, TX 

76537 

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 Billy Cooper Stone 

Co., Inc., (“Cooper Stone” or “Respondent”), pursuant to the Federal Mine Safety and Health 

Act of 1977 (Mine Act), 30 U.S.C. § 801.1 This case involves two Section 104(a) citations with a 

total proposed penalty of $1,757.00. 

 

The parties presented testimony and documentary evidence regarding the citation at issue 

at a virtual hearing held on November 15, 2023. MSHA Inspector Jason Hoermann testified for 

the Secretary. Billy Cooper Stone Co., Inc., owner Micah Flippen and employee Dan Wilson 

testified for the Respondent. After fully considering the testimony and evidence presented at 

hearing and the parties’ post-hearing briefs, I AFFIRM Citation Nos. 9741862 and 9741863, as 

modified herein. 

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. 

46 FMSHRC Page 37
II. STIPULATIONS OF FACT 

At hearing, the parties agreed to the following stipulations: 

1. Billy Cooper Stone Co., Inc., at all times relevant to these proceedings, engaged in 

mining activities and operations at the Cooper Stone Mine (Mine I.D. 41-03401) 

(“Cooper Stone”) in Williamston County, Texas. 

2. Billy Cooper Stone Co., Inc., is subject to the jurisdiction of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ et seq. (the “Mine Act”). 

3. Billy Cooper Stone Co., Inc.’s mining operations affect interstate commerce within the 

meaning and scope of § 4 of the Mine Act, 30 U.S.C. § 803. 

4. Respondent is an “operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. § 803(d), at 

the Mine where the contested citations in these proceedings were issued. 

5. The Administrative Law Judge has jurisdiction over these proceedings pursuant to § 105 

of the Mine Act. 

6. The individual whose signature appears in Block 22 of the contested citations at issue in 

this proceeding is an authorized representative of the United States of America’s 

Secretary of Labor, assigned to MSHA, and was acting in his official capacity when 

issuing the citations at issue in these proceedings. 

7. The citations at issue in this proceeding were properly served upon Billy Cooper Stone 

Co., Inc., as required by the Mine Act. 

8. The penalties associated with the violations in this docket if imposed, will not affect the 

Mine’s ability to remain in business. 

9. The Respondent agrees to withdraw contest of Citation No. 9741859 and agrees to pay 

the assessed penalty of $905.00. 

10. The Respondent agrees to withdraw contest of Citation No. 9741860 and agrees to pay 

the assessed penalty of $905.00. 

11. The Respondent agrees to withdraw contest of Citation No. 9741861 and agrees to pay 

the assessed penalty of $905.00. 

12. The Parties agree that Citation No. 9741864 be modified from “Fatal” injury to 

“Permanently Disabling”, and the penalty be modified from $905.00 to $407.00. For 

support of this modification, the Respondent asserts that the expected injury would not be 

as serious as alleged; the welder does not produce a high voltage. The Secretary under 

these specific circumstances agrees that the expected injury is more appropriately 

described as “Permanently Disabling.” 

46 FMSHRC Page 38
13. The moving machine parts described in Citation No. 9741862 are required to be guarded 

to protect persons from contact per 30 C.F.R. § 56.14107(a). 

14. The area described in Citation No. 9741863 is a roadway, over which vehicular traffic 

may travel. 

15. The area described in Citation No. 9741863 is within the property boundaries of Cooper 

Stone, LLC, 3786 FM 487, Jarrell, Texas 76537. 

16. Cooper Stone abated Citation No. 9741863 by placing berms along the roadway. 

Tr. 6. 

III. FINDINGS OF FACT AND SUMMARY OF TESTIMONY 

Billy Cooper Stone Co., Inc., operates the Cooper Stone Mine, a dimensional stone mine 

located in Williamston County, Texas. Tr. 13, 18-19; Jt. Stip. 1. On April 19, 2023, MSHA 

Inspector Jason Hoermann arrived at the mine to conduct a regular EO-1 inspection. Tr. 21. 

While inspecting the site, he was accompanied by two members of mine management, Dan Trejo 

and Dan Wilson. Tr. 23. 

While inspecting the rock chopper area, Hoermann issued a citation for a splitter that did 

not have the proper guards. Tr. 34; Ex. S-1-1. Hoermann testified at hearing that the lack of 

guards on the machine presented an entanglement hazard. Tr. 36. While he could not recall at 

hearing whether he determined if the splitter was locked out or not, he stated that he would 

generally make a note during his inspection process if a piece of machinery was locked out. Tr. 

40-41. His notes from this inspection did not state that the machine was locked out at the time he 

issued the citation. Tr. 41; Ex. S-3-2. Concerning the splitter’s condition, rock was lying on the 

belt, dirt debris was located on top of a catch table, and a hammer and gloves that are typically 

used to clean off the machine were nearby. Tr. 41-42; Ex. S-1-4, S-1-5, S-1-6. No guards were 

lying in the area or installed on the machine and there were no signs of repair. Tr. 42-43. 

Hoermann testified that he would have issued the citation regardless of whether the splitter was 

locked out or not because this evidence indicated that it had been used in a condition without 

guards, exposing miners to a hazard. Tr. 41-43, 80. 

Dan Wilson, one of the members of mine management who accompanied Inspector 

Hoermann on April 19, 2023, testified for the Respondent. He testified that the splitter had not 

been in use on the day of the inspection, nor was he aware of its use in the 70 days prior to that 

when he started his employment with Cooper Stone. Tr. 128-29. He did not check on the day of 

the inspection if the splitter was tagged out or not but stated that the splitter had been deenergized. Tr. 132-33. He also testified that it is common practice for employees to lay 

equipment down wherever there is space when it is not needed, as an explanation for the tools 

located in the splitter’s vicinity. Tr. 131-32. Micah Flippen, owner of Cooper Stone, also testified 

that it was normal for employees to lay tools and other equipment “anywhere they wish[ed]” and 

that the company made every effort to ensure the machine was de-energized. Tr. 165-66. To 

46 FMSHRC Page 39
demonstrate that the machine had been locked out at the time of the citation, the Respondent 

submitted a photograph that could not be authenticated by Dan Wilson, who was present on the 

day of the inspection. Tr. 146-47; R-1. 

When traveling on roads to inspect another area of the mine, Hoermann issued a citation 

for a missing berm on a 40-foot section of roadway. Tr. 50. The road appeared to be heavily 

traveled with equipment tracks and was narrow at only fifteen feet with an eight-foot drop-off 

leading to a pond. Tr. 51, 55-56. The inspector determined that this combination of conditions 

created a rollover hazard for vehicles traveling along the road. Tr. 57. Inspector Hoermann did 

not observe machinery operating on the road or mining equipment in the area but noted that there 

were signs that the area had been mined for dimensional stone, as evidenced by Vermeer saw 

cuts. Tr. 94-95, 109. He also testified that the area was moist where the berm had sloughed off. 

Tr. 95. Cooper Stone promptly terminated the violation by replacing the missing berm with 

blocks. Tr. 61-62. 

Concerning the ownership of the road, Hoermann determined the road belonged to 

Cooper Stone because the road connected into a network of other roads and there was no signage 

or other indicators that demonstrated ownership by an entity other than Cooper Stone. Tr. 60-61. 

He also stated that if a mine’s employees are traveling in an area, it is the mine’s responsibility to 

correct any hazard an employee may be exposed to. Tr. 84. The Respondent presented evidence 

that the road was under the control of Heartland Quarries, a separate entity that leased the road 

from Cooper Stone, and asserted that Heartland was responsible for its maintenance. Tr. 136-39, 

169-70, Ex. R-2, R-5. Mine employee Dan Wilson testified that Heartland Quarries had created 

new roads and manipulated roads that had been used by Cooper Stone in the past at its own 

discretion. Tr. 138-39. He admitted that the road where the citation was issued had been used by 

Cooper Stone in the past, but that it was not a normal travel way for Cooper Stone employees. 

Tr. 154-56, 161. Micah Flippen testified further that Heartland Quarries was in the process of 

stripping the area and had been manipulating the road and that Cooper Stone was not managing 

either the berm or the road at the time of the citation. Tr. 166, 169. Further, he testified that the 

largest piece of equipment owned by Cooper Stone is a “skid steer that is maybe six feet wide” 

and that they would not build a road that was so much wider than their equipment. Tr. 167. He 

also stated that rain had occurred in the area recently, explaining the moist ground that the 

inspector observed at the location of the citation, and that it was probable that the berm had 

sloughed off due to this recent rain. Tr. 169. 

IV. DISPOSITION 

A. Citation No. 9741862 

During his inspection on April 19, 2023, Hoermann issued 104(a) Citation No. 9741862, 

which alleged: 

The head pulley for the discharge belt and the chopper chains were not guarded 

on the No. 3 Hydrasplit Chopper. The head pulley guards were missing[,] and the 

chain guard was lying on the ground. This condition exposes miners using the 

chopper to an entanglement hazard resulting in serious injuries. 

46 FMSHRC Page 40
Ex. S-1-1; Tr. 35-36. 

Hoermann designated the citation as a non-significant and substantial violation of 30 

C.F.R. § 56.14107(a) that was unlikely to cause an injury that could reasonably be expected to be 

“permanently disabling,” would affect one miner, and was caused by Respondent’s moderate 

negligence. Ex. S-1-1. 

1. Fact of Violation 

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 

burden of showing something by a “preponderance of the evidence,” the most common standard 

in civil law and the standard applicable here, 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). 

30 C.F.R. § 56.14107(a) states that “[m]oving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, 

couplings, shafts, fan blades, and similar moving parts that can cause injury.” 

 The Secretary asserts that it is undisputed by both parties that the machine did not have 

proper guards at the time of the citation and that there was no indication of ongoing repair. Sec’y 

Br. at 10-11. Further, the inspector testified that there was substantial evidence that the machine 

had been used without guards and that he would have issued the citation anyway regardless of 

whether the splitter was properly locked out. Tr. 41-43. Cooper Stone contends that the machine 

was in fact locked out and tagged out at the time the citation was issued but failed to present any 

testimonial evidence to that effect. Resp Br. at 1-2. While the Respondent submitted a 

photograph that appeared to show that the machine was locked and tagged out, this photograph 

could not be authenticated at hearing. Especially critical is the failure to establish when the 

splitter was locked and tagged out. Therefore, I cannot place much evidentiary weight on the 

photograph. Tr. 146-47; Ex. R-1. I do place weight on and credit the inspector’s testimony that, 

even had the splitter been locked and tagged out, he would have issued the citation given the 

evidence it had been used without the presence of the required guards. Accordingly, I find that 

the Secretary has presented sufficient evidence to show that Cooper Stone violated 30 C.F.R. § 

56.14107(a). 

2. Gravity 

Hoermann designated the citation as unlikely to cause an injury that could be reasonably 

expected to result in a permanently disabling injury. Ex. S-1-1. He testified at hearing that he 

selected “unlikely” because the machine was not in use at the time of his inspection and the 

machine was a spare. Tr. 43. He selected permanently disabling because the pulley located on the 

machine could grab loose clothing or a hand, leading to crushing injuries and possible 

amputation. Tr. 43-44. Because the splitter was not in immediate use, it was unlikely to cause 

46 FMSHRC Page 41
injury, so Hoermann marked the gravity as not significant and substantial. Tr. 44. Hoermann also 

testified that one person would be affected since one person would be injured by the head pulley 

at a time. Tr. 44. Respondent did not contest the gravity designations for this violation, and I find 

the designations made by the inspector to be appropriate. 

3. 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. 

Hoermann marked the violation as moderate negligence because the violation was visible 

and it was obvious that the machine was unguarded, and because the operator had been cited in 

the past “for another guarding violation.” Tr. 44-45. At the time of this citation, management 

stated that they did not know that the cited machine was unguarded, and never mentioned that 

the machine was locked out or was down for repairs during the inspection. Tr. 45-46. Hoermann 

testified that the operator should have been aware that machine parts should be guarded, but the 

Assessed Violation History Report does not indicate any such prior machine related guarding 

violations. Tr. 45. Ex. S-4-1. Because there is no evidence of the operator’s previous history 

regarding such guarding violations, I lower the negligence from moderate to low. 

B. Citation No. 9741863 

During his inspection on April 19, 2023, Hoermann issued 104(a) Citation No. 9741863, 

which alleged: 

The roadway going to the upper bench at the main pit was missing a 40 ft section 

of berm. The roadway had an 8 ft drop off on the North side and tire tracks were 

observed within 2 ft from the edge. The roadway is used by mobile equipment to 

move blocks from the pit to the saw area. This condition exposes equipment 

operators to a [roll-over] hazard resulting in serious injuries. 

Ex. S-2-1; Tr. 55-56. 

Hoermann designated the citation as a significant and substantial violation of 30 C.F.R. § 

56.9300(a) that was reasonably likely to cause an injury that could reasonably be expected to 

result in “lost workdays or restricted duty,” would affect one miner, and was caused by 

Respondent’s moderate negligence. Ex. S-2-1. 

 

46 FMSHRC Page 42
1. Fact of Violation 

30 C.F.R. § 56.9300(a) provides that “[b]erms or guardrails shall be provided and 

maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to 

cause a vehicle to overturn or endanger persons in equipment.” 

The Secretary argues that Cooper Stone violated this standard by failing to have a berm 

on a narrow road with an eight-foot drop-off. Owner operator Flippen testified that the road was 

not under Respondent’s control, and that the area was not actively being mined by Cooper Stone. 

Instead, the road was being controlled and manipulated by Cooper Stone’s, lessee, Heartland 

Quarries. I find that the ownership of the road in this matter is irrelevant to the issuance of a 

citation, because if a mine’s employees are traveling on a road, per inspector Hoermann’s 

credited testimony it is that mine’s duty to ensure that the road is in compliance with all safety 

regulations. Tr. 84. I also note the parties stipulated to the fact that the road in question is within 

the property boundaries of Cooper Stone. Jt. Stip. 15. It is also undisputed that the road in 

question was missing a berm at the time of the citation. I affirm the finding that there was a 

violation of 30 C.F.R. § 56.9300(a). 

2. Gravity and S&S 

Hoermann designated the citation as reasonably likely to cause an injury that could 

reasonably be expected to result in “lost workdays or restricted duty.” Ex. S-2-1. He explained at 

hearing that the road was narrow and very compacted, which indicated heavy use. Tr. 57. He 

selected “lost workdays and restricted duty because the equipment would likely roll over on its 

side, leading to broken bones, sprains, contusions, and cuts. Tr. 57-58. The Respondent did not 

contest the gravity of the expected injury. I affirm the finding that the injury would likely result 

in lost workdays or restricted duty to one miner. 

The citation was also designated as significant and substantial. To establish that a 

violation is significant and substantial, the Secretary of Labor must prove: (1) the underlying 

violation of a mandatory safety standard; (2) the violation was reasonably likely to cause the 

occurrence of the discrete safety hazard against which the standard is directed; (3) the occurrence 

of that hazard would be reasonably likely to cause an injury; and (4) there would be a reasonable 

likelihood that the injury in question would be of a reasonably serious nature. Peabody Midwest 

Mining, LLC, 42 FMSHRC 379, 383 (June 2020). The Commission has explained that “the 

proper focus of the second step of the [S&S] test [is] the likelihood of the occurrence of the 

hazard the cited standard is designed to prevent.” Newtown Energy, Inc., 38 FMSHRC 2033, 

2037 n.8 (Aug. 2016). 

The Secretary has established a violation and therefore satisfies step 1. But the Secretary 

has failed to satisfy step 2 because she has not shown that the occurrence of a roll-over hazard is 

reasonably likely to occur to one of Respondent’s employees. There are too many intervening 

factors to establish that the rollover hazard was reasonably likely, particularly concerning the 

lack of evidence demonstrating Respondent’s use of the road. At the hearing, the inspector 

testified that he did not see equipment working in the area and that mine management were 

unaware of the berm’s condition. Tr. 59, 109. Further, Respondent presented testimony at trial 

that indicates that the road was not in use at the time of the inspection. Tr. 166-69. Additionally, 

46 FMSHRC Page 43
Cooper Stone contends that their equipment is significantly narrower than the road itself. Tr. 

167. The danger to Respondent’s employees presented by the missing berm remained relatively 

remote given these facts. Accordingly, the berm violation was not S&S and I lower the 

likelihood of injury to unlikely. 

3. Negligence 

Hoermann determined that the violation was a result of Cooper Stone’s moderate 

negligence. It was visible and obvious that the 40-foot section of berm was missing, but the 

mitigating circumstances of nobody using the road at the time of inspection and the lack of 

reporting about the situation decreased the negligence to moderate. Tr. 59. Further, the inspector 

determined that the road belonged to Cooper Stone because the road tied into the network of 

roads leading to the pit and there was no signage or barriers to indicate the road belonged to 

another entity. Tr. 60. 

 As stated above, it is the mine’s duty to ensure compliance with safety regulations if their 

employees are traveling on a road, regardless of the actual ownership of the road. However, 

given the considerable mitigating circumstances and the low frequency that Cooper Stone was 

using the road at the time of the citation, I reduce Cooper Stone’s negligence from moderate to 

low for this citation. 

V. 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). 

 For Citation No. 9741862, the Secretary proposed a regularly assessed penalty of 

$407.00. As discussed above, there is no evidence aside from the inspector’s unsupported 

testimony regarding the operator’s prior machine guarding violation history. It is undisputed that 

Cooper Stone is a small operator with approximately 30 employees. Tr. 21. The parties also 

stipulated that the penalty will not affect Cooper Stone’s ability to continue in business. Jt. Stip. 

8. As discussed above, I find that this non-S&S violation was unlikely to result in an injury 

causing permanently disabling injuries and was the result of Cooper Stone’s low negligence. 

Finally, Cooper Stone demonstrated good faith by quickly terminating the citation. In light of 

these considerations, I find that a penalty of $350.00 is appropriate. 

46 FMSHRC Page 44
 For Citation No. 9741863, the Secretary has proposed a regularly assessed penalty of 

$1,350.00. The mine operator has had berm violations in the past. Ex. S-4-1. The parties 

stipulated that the penalty will not affect Cooper Stone’s ability to continue in business. Jt. Stip. 

8. As discussed above, I find that this is a non-S&S violation that was unlikely to result in an 

injury causing lost workdays or restricted duty and was the result of Cooper Stone’s low 

negligence. Finally, Cooper Stone Co., Inc., demonstrated good faith by quickly remedying the 

citation, even under the belief that they were not responsible for the missing berm. I have 

considered the representations and documentation submitted and conclude that a penalty of 

$600.00 is appropriate under the criteria set forth in Section 110(i) of the Act. 

VI. ORDER 

It is hereby ORDERED that Citation No. 9741862 is AFFIRMED as modified to reduce 

the negligence to low and that Citation No. 9741863 is AFFIRMED, as modified to reduce the 

likelihood of injury or illness to “Unlikely”, reduce the negligence to low, and to remove the 

S&S designation. Billy Cooper Stone Co., Inc, is ORDERED to pay the Secretary the total sum 

of $950.00 within 40 days of this order.2

 /s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (Electronic and Certified mail) 

Maria Rich-DoByns, CLR, U.S. Department of Labor, MSHA, 1100 Commerce Street, Room 

462, Dallas, TX 75242, dobyns.maria@dol.gov

Micah H. Flippen, Owner, Cooper Stone LLC, P.O. Box 678, Jarrell, TX 76537, 

micah.flippen@cooperstone.com

2

 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. 

46 FMSHRC Page 45

ADMINISTRATIVE LAW JUDGE ORDERS
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

January 31, 2024 

ORDER GRANTING SECRETARY’S MOTION FOR SUMMARY DECISION 

AND DENYING CONTESTANT’S MOTION FOR SUMMARY DECISION 

Before: Judge Lewis 

This case is before me upon notice of contest filed by Peabody Gateway North Mining, 

LLC (“Peabody” or “Contestant”) under Section 105(d) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815(d). 

On March 6, 2023, Peabody submitted a Motion for Summary Decision and 

Memorandum of Points and Authorities in Support of Motion for Summary Decision. In the 

Motion, Peabody requested that this Court vacate this docket. On March 23, 2023, the Secretary 

of Labor filed a Response to Contestant Peabody Gateway North Mining, LLC’s Motion for 

Summary Decision, both opposing the Contestant’s motion and cross-moving for summary 

decision. I denied the cross-motions for summary decision on April 3, 2023, because there was 

not agreement on the material facts of the case. 

The following day, Contestant filed an unopposed Motion for Reconsideration of this 

Court’s April 3, 2023, order, stating that this Court’s denial of the cross-motions was premature 

pursuant to Commission Procedural Rules 10(d) and 67(d), 29 C.F.R. §§ 2700.10(d) and 

2700.67(d), which entitled Peabody to file a response to the Secretary’s cross-motion for 

summary decision. The Motion was accompanied by a Response in Opposition to Secretary of 

Labor’s Cross-Motion for Summary Decision. I granted Peabody’s Motion for Reconsideration 

on April 6, 2023. After reviewing Contestant’s Response in Opposition dated April 4, 2023, and 

the Secretary’s subsequent Response dated April 18, 2023, I issued an order denying the parties’ 

cross-motions on May 18, 2023. 

PEABODY GATEWAY NORTH 

 MINING, LLC, 

 Contestant 

 v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, MSHA, 

 Respondent 

 CONTEST PROCEEDING 

Docket No. LAKE 2023-0075 

Citation No. 9039082; 01/24/2023 

Mine: Gateway North Mine 

Mine ID: 11-03235 

46 FMSHRC Page 46
Before me are Peabody’s Renewed Motion for Summary Decision dated July 18, 2023; 

the Secretary’s Renewed Cross-Motion for Summary Decision dated July 28, 2023; and 

Peabody’s Response in Opposition dated August 9, 2023. 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). “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. 

In their respective submissions, the parties have confirmed that the material facts are 

uncontested and have submitted facts that show as much. Contestant’s Renewed Motion for 

Summary Decision, 1; Secretary’s Renewed Motion for Summary Decision, 1. As agreed-upon 

by the parties, the relevant facts are as follows. On December 08, 2022, MSHA issued Citation 

No. 9541193, alleging in the Condition or Practice section that on December 05, 2022, a main 

fan outage occurred that required miners to be withdrawn from the mine. Miners then re-entered 

the mine with the section foreman and traveled back to the working sections before an 

examination was conducted by certified examiners as required by 75.360(h) through (e). The 

Citation was marked as Significant and Substantial, as well as constituting an unwarrantable 

failure to comply with a mandatory standard. 

On January 5, 2023, MSHA issued an information request related to Citation 

No. 9541193, requesting, inter alia, the contact information for all miners working the evening 

shift on December 5, 2022. Cont. Ren. MSD, 2; Secy. Ren. MSD, 2. On January 17, 2023, 

Peabody supplied some of the information sought, but refused to produce contact information for 

eight miners, stating that “miners who may be considered agents of the operator on that shift may 

be contacted through counsel.” Cont. Ren. MSD, 2; Secy. Ren. MSD, 2, SX-B. On January 19, 

2023, MSHA issued a second set of requests and, among other information sought, repeated its 

previous demand for the personal contact information for all miners that worked on the evening 

shift of December 5, 2022, including those that “may be considered agents of the operator.” 

Cont. Ren. MSD, 2; Secy. Ren. MSD, 2, SX-C. Peabody responded on January 23, 2023, by again 

refusing to supply the contact information of the eight miners “who may be considered agents of 

the operator,” and stating that those miners “may be contacted through counsel.” Cont. Ren. 

MSD, 5; Secy. Ren. MSD, 2, SX-D. On January 24, 2023, MSHA issued Citation No. 9039082 

for Peabody’s refusal to provide the contact information of the eight miners that it stated were 

agents of the operator. Cont. Ren. MSD, 6, CX-H; Secy. Ren. MSD, 2. 

The Condition or Practice section of Citation No. 9039082 alleges as follows: 

On January 5, 2023, the Mine Operator received a request for information from 

MSHA regarding case VINC-CSI-2023-02. The Mine Operator was given 11 days 

to comply with the due date of January 16, 2023. The Operator did not request an 

extension or provide all of the requested information. On January 17, 2023, the 

46 FMSHRC Page 47
Operator sent a partial inadequate response to the request for information. On 

January 19, 2023, MSHA requested additional information and requested that the 

original request be complied with fully by January 23, 2023 by 12:00 p.m. Central 

Time. As of 12:00 noon on January 23, 2023, the Operator has not responded in 

full by providing the information from items #2 and #3 on the initial request. At 

this time the operator has not complied and daily penalties will be requested to gain 

compliance from the operator. 

The Operator’s failure to provide the requested information is a violation of Section 

103(a)(h) of the Mine Act. 

Contestant, in its briefs and exhibits, provides ample evidence that the eight individuals 

in question could be considered agents of the operator on the date in question, and the Secretary 

argues that the status of these miners is irrelevant. Secy. Ren. MSD, 3. Therefore, for the 

purposes of this analysis, this Court will assume that the eight miners are agents and address the 

validity of Citation No. 9039082. 

Section 103(a)(h) of the Mine Act, which the Citation alleges was violated, states as 

follows: 

(a) Authorized representatives of the Secretary or the Secretary of Health, 

Education, and Welfare shall make frequent inspections and investigations in 

coal or other mines each year for the purpose of (1) obtaining, utilizing, and 

disseminating information relating to health and safety conditions, the causes 

of accidents, and the causes of diseases and physical impairments originating 

in such mines, (2) gathering information with respect to mandatory health or 

safety standards, (3) determining whether an imminent danger exists, and (4) 

determining whether there is compliance with the mandatory health or safety 

standards or with any citation, order, or decision issued under this title or other 

requirements of this Act. In carrying out the requirements of this subsection, no 

advance notice of an inspection shall be provided to any person, except that in 

carrying out the requirements of clauses (1) and (2) of this subsection, the 

Secretary of Health, Education, and Welfare may give advance notice of 

inspections. In carrying out the requirements of clauses (3) and (4) of this 

subsection, the Secretary shall make inspections of each underground coal or 

other mine in its entirety at least four times a year, and of each surface coal or 

other mine in its entirety at least two times a year. The Secretary shall develop 

guidelines for additional inspections of mines based on criteria including, but 

not limited to, the hazards found in mines subject to this Act, and his experience 

under this Act and other health and safety laws. For the purpose of making any 

inspection or investigation under this Act, the Secretary, or the Secretary of 

Health, Education, and Welfare, with respect to fulfilling his responsibilities 

under this Act, or any authorized representative of the Secretary or the Secretary 

of Health, Education, and Welfare, shall have a right of entry to, upon, or 

through any coal or other mine. 

46 FMSHRC Page 48
(h) In addition to such records as are specifically required by this Act, every 

operator of a coal or other mine shall establish and maintain such records, make 

such reports, and provide such information, as the Secretary or the Secretary of 

Health, Education, and Welfare may reasonably require from time to time to 

enable him to perform his functions under this Act. The Secretary or the 

Secretary of Health, Education, and Welfare is authorized to compile, analyze, 

and publish, either in summary or detailed form, such reports or information so 

obtained. Except to the extent otherwise specifically provided by this Act, all 

records, information, reports, findings, citations, notices, orders, or decisions 

required or issued pursuant to or under this Act may be published from time to 

time, may be released to any interested person, and shall be made available for 

public inspection. 

30 U.S.C. § 813(a)(h). 

Citing the Seventh Circuit case, Big Ridge v. FMSHRC, 715 F.3d 631 (7th Cir. 2013), 

Contestant argues that under applicable law, a request by MSHA under Section 103(h) for 

documents or information not required to be maintained must be “reasonable.” Contestant’s 

Memorandum of Points and Authorities, 7. Specifically, a reasonable request must be limited in 

scope, manner, and time, which it interprets as “information needed by the agency to verify a 

specific point of compliance and is conducted by appropriate means.” Id. at 7-8. The Contestant 

states that with regard to the contact information of miners that were agents of the operator, 

“MSHA presumably made this request so that it could have contacted agents without company 

counsel’s involvement,” and that such a request is unreasonable under Big Ridge. Id. at 8. 

Contestant argues that as agents of the operator, these miners’ statements may be imputed to the 

company for purposes of negligence and unwarrantable failure. Id. at 10-11. Citing attorneyclient privilege and the transcript from an ALJ hearing, the Contestant argues that MSHA was 

not permitted to interview a supervisor without company counsel present. Id. at 11-12. 

The Secretary similarly cites Big Ridge to argue that its request for the contact 

information for the eight miners at issue under Section 103(h) was reasonable. Secy. Ren. MSD, 

4-5. In the instant case, MSHA argues that its requests were limited to personal contact 

information of miners working on a single relevant shift and that they were necessary to offer 

confidential interviews to miners during the course of an investigation. Id. 4-6. Furthermore, it 

argues that Contestant’s claims are not ripe for determination because MSHA routinely contacts 

miners during an investigation and offers them the ability to give a confidential interview. Id. 6. 

It is only if a miner declines to act as a government informant that MSHA has an obligation to 

determine if the miner is an agent and represented by counsel. Id. The Secretary argues that the 

Contestant’s allegations that it is trying to circumvent counsel for illegitimate purposes are 

premature and incorrect. Id. at 6-7. 

Section 103(h) of the Mine Act provides that, “In addition to such records as are 

specifically required by this Act, every operator of a coal or other mine shall establish and 

maintain such records, make such reports, and provide such information, as the Secretary ... may 

reasonably require from time to time to enable him to perform his functions under this Act.” 30 

U.S.C. § 813(h). In Big Ridge, the Seventh Circuit considered whether MSHA had the authority

46 FMSHRC Page 49
under Section 103(h) to require mine operators to permit MSHA inspectors to review employee 

medical and personnel records in order to verify that operators were not underreporting injuries 

and illnesses. The Court affirmed MSHA’s authority to demand such documents, holding that 

“the [Mine] Act grants MSHA broad inspection and document review powers, including the 

power to ‘reasonably require’ mines to provide information that would enable MSHA to perform 

[its] functions under [30 U.S.C. § 813(h)]” 715 F.3d at 638. The Court defined a “reasonable” 

demand as one that is “limited in scope, manner, and time.” Id. at 641-642. In Big Ridge, the 

Court found that the scope was reasonable because it included only the information needed to 

verify injury and illness reporting compliance; the manner was reasonable because MSHA 

requested “only to inspect and copy the relevant records, not to rummage through mine offices;” 

and the time limits were reasonable because they only covered records for one year. Id. at 642. 

Furthermore, the Court highlighted that “verifying compliance with the Mine Safety Act and 

relevant regulations is one of the express purposes for which Section 813(a) authorizes MSHA to 

inspect and investigate mines.” Id.

Applying the Big Ridge test for reasonableness to the instant case, I find that MSHA’s 

request for the personal contact information of the miners working on the shift at issue was 

reasonable. MSHA issued its information request in this case as part of an investigation into an 

alleged fan outage and subsequent failure to perform a Section 313(d) investigation on December 

05, 2022. The request was limited in scope as it did not demand the personal contact information 

of all miners, but only those related to the investigation into the alleged violation. The request 

was limited in time as it only asked for the contact information of the miners working on a single 

shift on the date of the alleged violation. Lastly, the manner here was reasonable because MSHA 

asked the company to provide relevant records it had on hand rather than sending inspectors to 

“rummage through mine offices” for the personal contact information of miners. 

The Secretary has stated that the primary reason it needs the personal contact information 

of the miners who worked the shift at issue is to offer them confidential interviews as 

government informants. The Secretary’s right to interview miners is central to the functioning of 

the Mine Act. See BHP Copper, Inc., 21 FMSHRC 758, 765 (July 1999) (“Unless the Secretary’s 

right to be on mine property and investigate accidents is a hollow one, it must carry with it the 

right to interview witnesses.”). Miners who participate in MSHA interviews are entitled to have 

their identities withheld in order to prevent retaliation. The Mine Act and its legislative history 

highlight the importance of providing confidentiality to government informants. Section 

103(g)(1) of the Act requires that the names of miners who complain of safety violations be 

removed from the notice provided to operators. 30 U.S.C. § 813(g)(1). The legislative history of 

the Mine Act explained the reasoning for such confidentiality: 

The Committee is aware of the need to protect miners against possible 

discrimination because they file complaints, and accordingly, the Section requires 

that the name of the person filing the complaint and the names of any miners 

referred to in the compliant not appear on the copy of the complaint which is served 

on the mine operator. While other provisions of the bill carefully protect miners 

who are discriminated against because they exercise their rights under the Act, the 

Committee feels that strict confidentiality of complainants under Section 

[103(g)(1)] is absolutely essential. 

46 FMSHRC Page 50
S. Rep. No. 95-181, at 29, reprinted in Legis. Hist. at 617, reprinted in Senate Subcomm. on 

Labor, Comm. on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and 

Health Act of 1977 (1978). Citing to this legislative history, the Commission stated that: 

The reasoning behind this right to confidentiality is considered so persuasive that 

the Commission adopted a version of the right for Commission proceedings, 

recognizing that witnesses who qualify for it should generally be protected by the 

informant's privilege. See Sec'y on behalf of Logan v. Bright Coal Co., 6 FMSHRC 

2520, 2524-25 (Nov. 1984); see also Commission Procedural Rule 61, 29 C.F.R. 

§ 2700.61 (“A Judge shall not, except in extraordinary circumstances, disclose or 

order a person to disclose to an operator or his agent the name of an informant who 

is a miner.”). 

Sec’y obo McGary and Bowersox, et al. v. Marshall County Coal Co., et al., 38 FMSHRC 2006, 

2014 (Aug. 2016). MSHA has a right and responsibility to contact miners during an investigation 

to offer them the opportunity to make confidential statements as government informants. 

Therefore, similar to the facts in Big Ridge, MSHA’s information request here is also “relevant 

to the goals of the statutory scheme and the government’s interest in miner safety.” 715 F.3d at 

646. 

The Contestant argues that since the miners at issue were agents of the operator, then 

MSHA can only contact them through counsel. However there appears to be no justification in 

the Mine Act or caselaw that miners who are supervisors, or otherwise can be considered agents 

of the company, lose their rights under the Mine Act to make confidential safety complaints to 

MSHA. To require MSHA to have company counsel present while informing miners of their 

rights to make confidential complaints, and while conducting confidential interviews, would 

effectively strip these miners of their rights. The Secretary is limited in certain ways that it can 

interview agents of the operator, but not in providing a miner the opportunity to make 

confidential safety complaints to the government.1

This Court is in agreement with the Secretary that many of Contestant’s claims and 

arguments are premature and speculative. Contestant argues that MSHA is attempting to 

circumvent counsel and violate attorney-client privilege by requesting the personal contact 

information of miners. Cont. Ren. MSD, 10-12. While there is certainly the possibility that 

MSHA would abuse the information it received, there is no evidence in this case that it planned 

to do so.2 If, at some future point, the Secretary were to use the personal contact information of a 

1 Obviously, nothing would prevent Contestant prior to its disclosure of requested contact 

information to MSHA, from notifying employees whom it deemed to be agents of the operator 

during the time period in question, to seek, if they so wished, advice from Contestant’s counsel, 

before speaking with MSHA. 

2 Indeed, in almost every legal proceeding, there is the possibility that a lawyer will abuse 

information that it receives, leak discovery documents, or otherwise act in an unethical manner. 

However, courts must presume that lawyers will act in an ethical manner, absent evidence to the 

contrary. 

46 FMSHRC Page 51
miner agent to interview him after he declined to serve as a government informant, then the 

Contestant would not be without recourse. As illustrated by Contestant’s citation to the transcript 

provided in CJ-X, where Judge McCarthy struck the testimony of a miner after determining that 

the witness was a supervisor and MSHA had not notified company counsel of the interview, 

Contestant can object to the use of any improperly gathered information from the miners at issue. 

However, the possibility that MSHA may misuse the contact information provided is not grounds 

for withholding it in advance, in violation of Section 103(h). 

Accordingly, the Secretary’s Motion for Summary Decision is GRANTED and the 

Contestant’s Motion for Summary Decision is DENIED. Citation No. 9039082 is AFFIRMED

and Contestant is ORDERED to provide MSHA the information sought in the January 5, 2023,

and January 19, 2023, information requests within 30 days of this Order. 

 /s/ John Kent Lewis 

John Kent Lewis 

Administrative Law Judge 

Distribution: 

Haley R. Jenkins, Esq., Office of the Solicitor, 230 S. Dearborn Street, 8th Floor, Chicago, 

Illinois 60604 (jenkins.haley.r@dol.gov) 

Arthur M. Wolfson, Fisher & Phillips LLP, Six PPG Place, Suite 830, Pittsburgh, PA 15222, 

(awolfson@fisherphillips.com) 

46 FMSHRC Page 52