1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

 January 17, 2023

SECRETARY OF LABOR, 

UNITED STATES DEPARTMENT OF 

LABOR, MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

 Petitioner

v. 

IRON CUMBERLAND, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING

Docket No. PENN 2022-0084 

A.C. No. 36-05018-555460 

Mine: Cumberland Mine

DECISION APPROVING SETTLEMENT

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

section 105(d) of the Federal Mine Safety and Health Act of 1977. Two section 104(d)(2) 

orders are involved, both of which were specially assessed. The Secretary has filed the Motion 

to Approve Settlement of the orders. As set forth in the table below, the Motion seeks to reduce 

the penalties, resulting in an overall reduction of $31,862.00 for this docket. The parties move 

to reduce the penalty assessed for the orders, as stated below. 

Order

MSHA’s 

Proposed 

Penalty

Settlement 

Amount Other modifications to order

9257780 $21,100.00 $14,172.00 Penalty reduction of 33%

9257810 $59,100.00 $34,166.00 Penalty reduction of 42%

Total $80,200.00 $48,338.00 Total penalty reduction of 40%

Both 104(d)(2) orders are associated with 104(d)(1) Order No. 9253174. That (d)(1) 

order was settled as part of the docket PENN 2022-0014. Decision Approving Settlement, 

PENN 2022-0014, May 26, 2022. The relevant underlying order was Order No. 9253174, for 

which the Motion sought a 62% reduction in the penalty.

Background 

This following background is being presented to preserve the relevant historical record

regarding the Cumberland Mine’s recent violation history for violations of 30 C.F.R. § 
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75.400.

The June 2021 Violation of 30 C.F.R. § 75.400

As reflected in Docket No. PENN 2022-0014, Order No. 9253174 was issued on June 17, 

2021 as a Section 104(d)(1) Order, for violation of 30 C.F.R. § 75.400. Titled “Accumulation of 

combustible materials,” this standard requires that “Coal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not 

be permitted to accumulate in active workings, or on diesel-powered and electric equipment 

therein.” 30 C.F.R. § 75.400. The citation was regularly assessed at $6,494.00 and was not given 

the 10% good faith reduction. Via the Secretary’s Motion to Approve Settlement, at the end of 

the day, for this admitted violation, the Secretary agreed to modify the likelihood of injury from 

“reasonably likely” to “unlikely.” That change altered the violation to non-S&S, with the 

consequence that the operator paid the minimum penalty for a Section 104(d)(1) order from 

$6,494.00 down to $2,493.00, a sixty-two percent (62 %) reduction. To the Court at least, it is 

noteworthy that as of June 17, 2021, the mine operator had been cited fifty-seven (57) times 

for violations of 30 C.F.R. § 75.400. Within just that docket, five (5) of the eleven (11) 

citations involved violations of that standard. All of the violations were (d) orders

The order read:

The operator allowed accumulations of combustible materials to exist in the 

following locations and in various forms on the 75 Headgate development section 

(MMU 002) [Area or Equipment impacted: from the Tailpiece inby in all 3 entries].

1 - Accumulations of float coal dust, dark grey to black in color has been deposited 

on the mine roof and ribs from 22 1/2 block to 25 block in the number 3 entry, 

which is the Return. These accumulations were approximately 1/16 of an inch in 

depth.

2 - Accumulations of loose coal and coal fines were found in the number 2 entry at 

25 3⁄4 block, along the left rib. These accumulations measured up to 40 feet in length, 

25 inches in depth and 28 inches in width.

3 - Accumulations of loose coal and coal fines were found just inby the 26 block 

crosscut in the number 2 entry face area that measured 20 feet in width, 14 feet in 

length and up to 4 feet in depth.

4 - Accumulations of float coal dust, black in color were found to be deposited on 

both ribs in the number 1 entry from just inby the 24 block crosscut to 25 3/4 block.

5 - There was 21 cardboard boxes (roof bolt resin boxes) found to be piled up along 

the solid rib at the 26 block crosscut in the number 1 entry.
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The [conditions] were obvious and extensive and should have been evident to even 

a casual observer, much less a certified person. If these conditions were left 

unnoticed, and therefore uncorrected, and normal mining operations were to 

continue, it would be reasonably likely that an accident would occur due to the 

exposure to the conditions. Also, a confluence of factors exists as there was also a 

citation issued for 24 cutting bits being excessively worn (completely missing 

carbide tips or more) and 4 cutting bits being completely missing on the company 

number 1022 Continuous Mining Machine.

Standard 75.400 was cited 57 times in two years at mine 3605018 (57 to the 

operator, 0 to a contractor). This violation is an unwarrantable failure to comply 

with a mandatory standard.

Petition for a Civil Penalty at 11-12.

The gravity of the violation was found to be “reasonably likely,” and could reasonably be 

expected to result in “lost workdays or restricted duty,” affecting one person. Id. at 11. The 

violation was found to be significant and substantial. Id. Negligence was assessed as “high.” Id. 

The order was terminated on June 19, 2021 with the justification that “The operator has removed 

all accumulations from the cited areas and rockdusted the entire section with a scoop mounted 

flinger duster.” Id. at 13.

In support of the proposed modification, the Secretary offers the following:

Order No. 9253174 is a Section 104(d)(1) order for the accumulation of

combustible materials in five locations on the 75 Headgate development section in 

violation of 30 C.F.R. § 75.400. MSHA determined that the violation was 

reasonably likely to cause an injury resulting in lost workdays and restricted duty, 

and was therefore significant and substantial, that it affected one person, and that 

the operator exhibited a high degree of negligence. MSHA assessed a penalty of 

$6,494.00.

The inspector referenced worn cutting bits on the continuous mining machine as an 

ignition source for the cited materials. The Respondent contends that the material 

in the first area mentioned, which MSHA cited for accumulations of float coal dust 

on the mine roof and ribs in the No. 3 entry, was rather a mixture of coal and rock 

dust of unknown combustible content. The Respondent further contends that this

affected area was located outby the last open crosscut approximately 200 feet from 

the working face and therefore removed from the referenced ignition source. The 

second area mentioned, which MSHA cited for accumulations of loose coal and 

coal fines in the No. 2 entry, the Respondent contends consisted of extremely wet

material that resulted from rib sloughage, which was also located outby the last 

open crosscut away from the referenced ignition source. The Respondent contends 

that the material in the third area, which MSHA cited for coal accumulations inby 
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the last open crosscut at the working face of the No. 2 entry, were contained in a

mud hole, fully saturated with water, and therefore would not contribute to an 

explosion or fire. The material in the fourth area, which MSHA cited for float coal 

dust in the No. 1 entry, was, argues the Respondent, in the intake air course and did 

not extend up to the working face and therefore was not near the referenced ignition 

source. Finally, the fifth area, which MSHA cited for the placement of cardboard 

boxes adjacent to the last open crosscut in the No. 1 entry, would not have been 

readily ignited by the referenced ignition source, and were awaiting immediate

removal prior to the resumption of mining in the No. 1 entry. In consideration of 

this and the risks inherent in litigation, the Secretary agrees to modify the likelihood 

of injury from “reasonably likely” to “unlikely”, which changes the order to nonS&S, and reduces the penalty to $2,493.00, the minimum for a Section 104(d)(1) 

order.

Motion to Approve Settlement at 3-5.

Per the Secretary’s custom the motion did not inform whether he consulted with the 

issuing inspector regarding the mine operator’s assertions for any of the five areas cited in the 

Order.

As the Court noted in its review of this citation: 

At the outset it is important to note that the inspector identified five (5) 

distinct areas of accumulations of combustible materials in this highly gassy mine. 

Two of these involved accumulations of float coal dust, with one location 

describing them as dark grey to black and the other as black. Two other, separate, 

areas involved accumulations of loose coal and coal fines. The fifth area, also in a 

distinct location, involved 21 cardboard boxes. Cardboard is combustible material. 

As the inspector stated and the information in his Order reflects, the conditions were 

obvious and extensive and should have been evident to even a casual observer, 

much less a certified person. 

The issuing inspector also applied the correct Commission test for these multiple 

accumulations, namely that assuming continuation of normal mining operations, he 

found that it would be reasonably likely that an accident would occur due to the 

exposure to the conditions. 

Though not a requirement to support his evaluation, the inspector also stated that 

there was a confluence of factors existing as there was also a citation issued for 24 

cutting bits being excessively worn (completely missing carbide tips or more) and 

4 cutting bits being completely missing on the company number 1022 Continuous 

Mining Machine. This appears to be a reference to Citation No. 9253300, which 

describes such worn or missing bits on the 1022 Continuous Mining Machine. 

PENN 2021-0112 Pet. for a Civil Penalty at 12.
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Further, the operator was no stranger to the accumulation of combustible 

materials standard, 30 C.F.R. § 75.400, with it being cited 57 (fifty-seven) times in 

two years at mine.

In the context of these five distinct areas of combustible accumulations and 

its very frequent occurrence, Respondent makes, as it must, various arguments in 

an attempt to show that the likelihood of an injury occurring was unlikely. These 

contentions have been set forth above and need not be repeated here. A tall task, 

the Respondent tries to diminish the seriousness of each of five distinct areas with 

various claims. They consist of various claims – that the combustible accumulations 

were some distances from the working face or were otherwise located so as to 

diminish the likelihood of occurrence or, an irrelevant consideration, the inspector 

didn’t analyze the combustible content of the coal dust, which is not a requirement 

to establish a violation, or they were wet or, in the case of the 21 boxes, they were 

awaiting immediate removal before mining resumed. However, at some point, the 

array of accumulations and the operator’s habitually being cited for such 

accumulations cannot be explained away. It is noteworthy, that per its motion, the 

Secretary recounts the claims without comment. 

Some additional comments about the Respondent’s claims that it is unlikely 

for an injury to occur are in order. 

Several of these arguments, as detailed below, assert evidence not observed 

by the inspector in the initial inspection giving rise to the order and the Secretary 

does not inform whether it presented the Respondent’s claims to the issuing 

inspector, who diligently detailed the conditions and extent of the five areas he 

identified in his order, areas, as noted above, that he remarked “were obvious and 

extensive and should have been evident to even a casual observer.” 

As to the first of the five identified areas, the inspector observed that the 

material was dark grey to black in color, indicative that it the accumulations were

not some innocuous combination of coal dust and rock dust and the float coal dust 

accumulation was substantial, extending over the length of 2.5 blocks. 

For the second area, Respondent contends that the accumulated material was 

extremely wet material from rib sloughage. Here again, the Motion does not inform 

if the Secretary made inquiry, in support of the inspector’s detailed recounting of 

the conditions he found, if he inquired about this claim. What the Court does know, 

from the text of the order itself, is that the loose coal and coal fines accumulation 

was significant, 40 feet long, 25 inches deep, and 28 inches wide; and that the 

Respondent does not dispute this.
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The same can be said for the third area, where Respondent contends the 

material was located in a mud hole, fully saturated with water, and therefore 

unlikely to ignite. One can only hope that, if the Secretary intends to encourage 

MSHA inspectors in their efforts to detail hazards, that the courtesy of presenting 

these claims to the issuing inspector was made. As with the first location, what the 

Court does know is that the accumulation of material was significant – 20 feet wide, 

14 feet long, and up to 4 feet in depth.

For the first, second, fourth, and fifth areas, Respondent claims the 

identified combustible material in question – accumulated lose coal and coal fines, 

float coal dust, or cardboard boxes – was too far away from the working face. This 

contention ignores the plain language of the standard, which requires that 

combustible materials shall be cleaned up and not be permitted to accumulate in 

active workings. The accumulations cited by the inspector were all in active 

workings. Active workings” is defined in 30 C.F.R. § 75.2 as “[a]ny place in a 

coal mine where miners are normally required to work or travel. 

Decision Approving Settlement May 26, 2022 at 6-8.

December 2021

The 104(d)(2) Orders for this matter, Docket No. PENN 2022-0084 

Order No. 9257780 was issued on December 20, 2021, for a violation of 30 C.F.R. 

§ 75.400. Titled “Accumulation of combustible materials,” the standard specifies that 

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, 

and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on diesel-powered and electric equipment 

therein.

30 C.F.R. § 75.400.

The order read:

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, 

and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings. On the 6 Mains West #1 Belt accumulations of 

combustible material in the form of coal, coal fines and float coal dust has been 

allowed to exist at the following locations: 
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1.) 11 Mains West transfer (11 block), coal accumulations in the form of coal 

and coal fines is present on the off side of the transfer measuring 12 inches wide by 

12 foot long and 4 feet to 16 inches in depth. In addition there is coal fines present

in the walkway measuring 3 feet wide by 15 feet long and 2 to 4 inches in depth.

2.) 12 1⁄4 block, coal accumulations in the form of loose coal and coal fines is 

present in contact with a turning bottom roller creating frictional heat. Smoke was 

being imitted from the accumulations. The accumulations measured 40 inches long 

by 24 inches wide and 10 inches deep.

3.) 15 1⁄4 block, coal accumulations in the form of loose coal and coal fines is 

present in contact with a turning bottom roller. The accumulations measured 32 

inches long by 24 inches wide and 12 inches deep.

4.) 15 1⁄2 block, coal accumulaions in the form of loose coal and coal fines is 

present in contact with a turning bottom roller. The accumulations measured 32 

inches long by 22 inches wide and 8 inches deep.

5.) 15 1⁄2 block, coal accumulations in the form of loose coal and coal fines is 

present in contact with a turning bottom roller. The accumulations measured 48 

inches long by 26 inches wide and 10 inches deep.

6.) 15 3⁄4 block, coal accumulations in the form of loose coal and coal fines is 

present in contact with a turning bottom roller. The accumulations measured 32 

inches long by 24 inches wide and 10 inches deep.

7.) 15 3⁄4 block, coal accumulatios in the form of loose coal and coal fines is 

present in contact with a turning bottom roller. The accumulations measured 40 

inches long by 20 inches wide and 10 inches deep.

8.) 16 1⁄2 block, coal accumulations in the form of loose coal and coal fines is 

present in contact with a turning bottom roller. The accumulations measured 30 

inches long by 20 inches wide and 8 inches deep.

9.) 11 to 17 block, coal accumulations in the form of coal float dust is present 

on mine floor, roof, ribs, structure and water pipe. The accumulations measured 

approximately 1200 feet and 16 feet wide.

10.) 11 to 17 block, coal accumulations in the form of loose coal and coal fines 

is present on the offside of the belt under every bottom roller.

Standard 75.400 was cited 71 times in two years at mine 3605018 (71 to the 

operator, 0 to a contractor). This violation is an unwarrantable failure to comply 

with a mandatory standard.

Petition for a Civil Penalty at 10-11.

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

reasonably be expected to result in “lost workdays or restricted duty”1 affecting one person. 

1 Originally assessed as “fatal,” a subsequent correction, made on February 9, 2022, changed 

the injury expected from “fatal” to “lost workdays,” with the explanation that 
8

Id. at 10. The violation was found to be significant and substantial. Id. Negligence was found 

to be “high.” Id.

The order was terminated on December 20, 2021, when “Seven Hourly miners, two 

supervisors and three rock dusters worked to correct conditions for 3 hours for total of 36 

man hours to remove[] all accumulations and rock dust the area. All conditions have 

been corrected.” Id. at 10 (emphasis added). 

Order No. 92457810

Order No. 92457810 was issued on January 19, 2022, for a violation of 30 C.F.R. 

§ 75.400, “Accumulation of combustible materials,” supra.

The order read:

Accumulation of combustible materials. Coal dust, including float coal dust 

deposited on rock-dusted surfaces, loose coal, and other combustible materials, 

shall be cleaned up and not be permitted to accumulate in active workings. On the 

6 Mains West #1 belt there is accumulations present at the following locations on 

previous rock dusted surfaces:

1.) 6 Mains West #2 Transfer at 35 block, there is accumulations present in the 

form of loose coal and coal fines in contact with a bottom roller. The 

accumulations measured 72 inches long by 32 inches wide and 14 inches 

deep.

2.) 34 to 28 block on the offside of belt, there is accumulations present in the 

form of coal dust on previous rock dusted surfaces on the mine roof, mine 

floor, mine ribs, belt structure and water line. The accumulations measured 

8 foot wide by 1500 feet long.

The injury-causing event that would most reasonably result from the cited condition 

was a mine fire caused by frictional heating of coal contacting the moving conveyor 

belt and rollers. Fires in isolated belt entries typically result in lost workday or 

restricted duty type injuries. Explosion of the coal dust in the affected area was 

unlikely due to the absence of methane accumulations or other conditions that 

would place a sufficient quantity of dust in suspension. 

Id. at 12. 

The justification given was that “[t]his subsequent action is issued as a result of a 

safety and health conference conducted January 6, 2022.” Id. 
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3.) 32 block, there is accumulations present in the form of loose coal, coal fines, 

and coal dust in contact with a bottom roller. The accumulations measured 2 

foot long by 4 foot wide and 10 inches deep.

4.) 31 1⁄2 block, there is accumulations present in the form of loose coal, coal

fines, and coal dust in contact with a bottom roller. The accumulations 

measured 2 foot long by 3 foot wide and 10 inches deep.

5.) 26 to 23 block on the off side of the belt, there is accumulations present in the 

form of coal dust on previous rock dusted surfaces on the mine roof, mine 

floor, mine ribs, belt structure and water line. The accumulations measured 

8 foot wide by 750 feet long.

6.) 22 1⁄2 to 20 1⁄2 block on the off side of the belt, there is accumulations present 

in the form of coal dust on previous rock dusted surfaces on the mine roof, 

mine floor, mine ribs, belt structure and water line. The accumulations 

measured 8 foot wide by 500 feet long.

7.) 20 1⁄2 block, there is accumulations present on the offside of the belt in the 

form of loose coal, coal fines and coal dust. The accumulations measured 10 

foot long by 32 inches wide and 16 inches deep.

8.) 19 block, there is accumulations present in the form of loose coal and coal 

fines in contact with a bottom roller. The accumulations measured 2 foot long 

by 2 foot wide and 12 inches deep.

9.) 19 block, there is accumulations present in the form of loose coal and coal 

fines in contact with a bottom roller. The accumulations measured 2 foot long 

by 2 foot wide and 10 inches deep.

10.) 18 3⁄4 block, there is accumulations present in the form of loose coal and 

coal fines in contact with a bottom roller. The accumulations measured 4 foot 

long by 2 foot wide and 6 inches deep.

11.) 17 1⁄4 to 17 block, there is accumulations present in the form of loose coal 

and coal fines on mine floor. The accumulations measured 20 foot long by 

16 foot wide and 1 to 2 inches deep. There is also coal dust accumulations 

present on the mine floor, roof, ribs, structure and water line.

12.) 15 1⁄4 there is accumulations present in the form of loose coal and coal fines 

in contact with a bottom roller. The accumulations measured 2 foot long by 

3 foot wide and 12 inches deep.

13.) 14 3⁄4 there is accumulations present in the form of loose coal and coal fines 

in contact with two bottom sets of rollers. The accumulations measured 9 

inches long by 1 foot wide and 16 inches deep and 6 inches long by 12 inches 

wide and 12 inches deep respectively.

14.) 11 to 11 1⁄2 bloc, there is accumulations present in the form of coal dust on 

previous rock dusted surfaces on the mine roof, mine floor, mine ribs, belt 

structure and water line. The accumulations measured 16 foot wide by 125 

feet long.

15.) 11 Mains transfer at 11 block, there is accumulations present in the form of 

loose coal and coal fines in contact with a bottom roller. The accumulations 

measured 16 foot long by 72 inches wide and 16 inches deep. The 
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accumulations are in contact with the bottom belt of 6 Mains West #1 belt and 

a bottom roller.

16.) 10 3⁄4 block, there is accumulations present in the form of loose coal and 

coal fines in contact with a bottom roller. The accumulations measured 24 

inches long by 12 inches wide and 12 inches deep.

17.) 8 1⁄2 block, there is accumulations present in the form of loose coal and coal 

fines in contact with a bottom roller. The accumulations measured 27 inches 

long by 30 inches wide and 8 inches deep.

18.) 8 1⁄2 block, there is accumulations present in the form of loose coal and coal 

fines in contact with a bottom roller. The accumulations measured 48 inches 

long by 27 inches wide and 8 inches deep.

19.) 6 3⁄4 block, there is accumulations present in the form of loose coal and coal 

fines in contact with a bottom roller. The accumulations measured 42 inches 

long by 30 inches wide and 12 inches deep.

20.) 6 3⁄4 block, there is accumulations present in the form of loose coal and coal 

fines in contact with a bottom roller. The accumulations measured 6 foot long 

by 3 foot wide and 12 inches deep.

21.) 6 block Langley, there is accumulations present in the form of loose coal, 

coal fines and coal dust present. The accumulations measured 50 foot long 

by 16 foot wide and 2 to 3 inches deep.

22.) 6 Mains West #1 transfer, there is accumulations present in the form of 

loose coal, coal fines, and coal dust present. The accumulations are in contact 

with the 79 North Mains belt. The accumulations measured 16 foot long by 

8 foot wide and 12 inches deep.

23.) 79 North Mains tailpiece, There is accumulations present in the form of 

loose coal, coal fines, and coal dust present. The accumulations are in contact 

with the 79 North Mains belt and tail roller. The accumulations measured 14 

foot long by 24 inches wide and 14 to 16 inches deep.

24.) 79 North Mains tailpiece off side, There is accumulations present in the 

form of loose coal, coal fines, and coal dust present. The accumulations are 

in contact with the 79 North Mains belt. The accumulations measured 6 foot 

long by 28 inches wide and 36 inches deep.

25.) 6 Mains West #1 belt transfer adjacent crosscut inline with 6 Mains West 

Belt, There is accumulations present in the form of loose coal, coal fines, and 

coal dust. The accumulations measured 9 foot long by 4 foot wide and 32 

inches deep.

26.) 11 block to 6 Mains West #1 Transfer, there is accumulations of coal dust 

present on the offside of the belt. Accumulations are present on mine floor, 

roof, ribs, structure and water line on previous rock dusted surfaces. The 

accumulations measured 10 foot wide by 2750 feet long.

Standard 75.400 was cited 78 times in two years at mine 3605018 (78 to the 

operator, 0 to a contractor). This violation is an unwarrantable failure to comply 

with a mandatory standard.
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Petition at 13-15.

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

reasonably be expected to result in “lost workdays or restricted duty,” affecting eight persons. Id. 

at 13. The violation was found to be significant and substantial. Id. Negligence was found to be 

“high.” Id. The order was terminated on January 20, 2022, when 

The cited accumulations have been removed and adequately rock dusted. The cited 

conditions took approximately 10 men per shift and 24 hours to correct for a total 

of 720 man hours.

Id. at 16.

Included with the Petition is a narrative supporting the special assessment. The 

narrative read:

 000555460

Assessment Control Number

Narrative Findings for a Special Assessment

Civil monetary penalties for violations of the Federal Mine Safety and Health Act 

of 1977 (the Mine Act) and mine safety and health standards are determined using 

the six criteria set forth in 30 C.F.R. Part 100. The Mine Safety and Health 

Administration (MSHA) may elect to waive the regular assessment formula 

contained in § 100.3 if the conditions concerning the violation warrant a special 

assessment under § 100.5.

In December 2021 and January 2022, MSHA issued two § 104(d)(2) Orders to Iron 

Cumberland LLC for violations of 30 C.F.R. § 75.400 at the Cumberland Mine. 

MSHA inspectors observed extensive accumulations of combustible material on 

the 6 Mains West #1 Belt, including loose coal, coal fines, and float coal dust. The 

material was observed on the mine floor, roof, ribs and on equipment. In multiple 

places, the material was in contact with moving belt rollers, and in one location was 

warm to the touch and emitting smoke. These conditions provided fuel for a mine

fire and could have resulted in serious injuries to multiple miners.

MSHA is proposing special assessments under § 100.5 for these Orders because 

they exhibited a high degree of negligence, presented significant risk of injury, and 

are part of an extensive history of accumulation violations at this mine. This 

indicates the need for greater deterrence than the regular assessment penalties 

would provide. Based on the six criteria set forth in § 100.3(a) and the information 

available to the Office of Assessments, it is proposed that Iron Cumberland LLC 

be assessed the following civil penalties:
12

§ 104(d)(2)

Order No.

Condition or Practice Proposed Penalty

9257780 Accumulations were observed in 10 locations, 

measuring up to 1,200 feet long. In seven 

locations, the material was in contact with 

bottom belt rollers, one of which was creating 

frictional heat and emitting visible smoke,

$21,100

9257810 Accumulations were observed in 26 locations, 

on previously rock dusted surfaces, measuring 

up to 2,750 feet long. In 18 locations, belt 

rollers were turning in accumulations.

$59,100

MSHA has carefully evaluated the conditions cited, relevant information, and the 

inspector’s evaluation. The proposed penalty reflects MSHA’s appraisal of all the 

facts presented. The attached proposed assessment includes the number of 

previously assessed violations and the size of the mine and the company. Under 

§ 100.3(h), MSHA presumes that the operator’s ability to continue in business will 

not be affected by the assessment of the civil penalties.

Petition at 7.

The Secretary’s Monetary Concessions for the two Section 104(d)(2) orders

Order 9257780

The Secretary moves to reduce the assessed penalty for this citation, offering the following 

in support:

104(d)(2) Order 9257780 was issued for an alleged violation of §75.400. The 

Secretary has proposed a civil penalty of $21,100.00 for this violation. Gravity was 

evaluated as: Reasonably Likely, Lost Workdays or Restricted Duty, 1 Person 

Affected. Consequently, the violation was designated as S&S. Negligence was 

evaluated as high and amounted to an unwarrantable failure to adhere to the cited 

standard. Respondent argues that the specially assessed proposed penalty is 

excessive. As shown on the Special Assessment Narrative Form in Exhibit A of the 

penalty petition, the special assessment was derived by increasing the penalty 

points for likelihood, severity, and negligence (including three unwarrantable 

failure points). However, were the matter to go to hearing, Respondent would 

argue that the facts and evidence would not support the high negligence or 
13

unwarrantable failure findings. Specifically, Respondent would argue that the 

conditions could have occurred or worsened over a short period of time due to 

the quantity and velocity of air on the belt and that the evidence would not 

prove that the conditions observed by the inspector were indicative of the 

conditions at the time of the most recent examination. In consideration of the 

facts, the available evidence, Respondent’s arguments, the risks inherent in 

litigation and Respondent’s agreement to accept the order as issued, the Secretary 

agrees to settle this matter by affirming the order as issued and agreeing to a reduced 

penalty of $14,172.00. The regular assessment amount for the order as issued would 

have been $5,293.00 and, had the violation been cited as a moderate negligence 

104(a) citation, the Part 100 penalty would have been $1,421.00. Thus, the agreed 

upon compromised amount of $14,172.00 is a fair and reasonable amount. 

Mot. to Approve Settlement at 3-4 (emphasis added).

Order No. 92457810

The Secretary moves to reduce the assessed penalty for this citation, offering the following 

in support:

104(d)(2) Order 9257810 was issued for an alleged violation of §75.400. The 

Secretary has proposed a civil penalty of $59,100.00 for this violation. Gravity was 

evaluated as: Reasonably Likely, Lost Workdays or Restricted Duty, 8 Persons 

Affected. Consequently, the violation was designated as S&S. Negligence was 

evaluated as high and amounted to an unwarrantable failure to adhere to the cited 

standard. Respondent argues that the specially assessed proposed penalty is 

excessive. As shown on the Special Assessment Narrative Form in Exhibit A of the 

penalty petition, the special assessment was derived by increasing the penalty 

points for likelihood, severity, and negligence (including three unwarrantable 

failure points). However, Respondent would argue at hearing that the high 

negligence and unwarrantable failure findings are not supported. Specifically, 

Respondent argues that miners were working on the cited conditions when the 

order was issued and that the examination books show that corrective actions 

were being taken on an ongoing basis. Furthermore, because a large portion 

of the mine had recently been sealed, increased air velocity on the belt caused 

coal fines to be blown off the belt and the conditions would change significantly 

over a short period of time. In consideration of the facts, the available evidence, 

Respondent’s arguments, the risks inherent in litigation and Respondent’s 

agreement to accept the order as issued, the Secretary agrees to settle this matter by 

affirming the order as issued and agreeing to a reduced penalty of $34,166.00. The 

regular assessment amount for the order as issued would have been $14,172.00 and, 

had the violation been cited as a moderate negligence 104(a) citation, the Part 100 

penalty would have been $4,268.00. Thus, the agreed upon compromised amount 

of $34,166.00 is a fair and reasonable amount. 
14

Motion at 4-5 (emphasis added).

Analysis

The Cumberland Mine has a compliance problem with 30 C.F.R. 75.400. 

Titled “Accumulation of combustible materials,” this standard requires that “Coal dust, 

including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to accumulate in active workings, or on 

diesel-powered and electric equipment therein.

The 104(d)(2) Orders for this matter, Docket No. PENN 2022-0084 

Order No. 9257780 was issued on December 20, 2021, for a violation of 30 C.F.R. 

§ 75.400. Titled “Accumulation of combustible materials,” the standard specifies that 

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, 

and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on diesel-powered and electric equipment 

therein.

In what can be fairly described as a staggering number of individual violation 

instances, this Order, No. 9257780, identified 10 separate instances of 30 C.F.R § 75.400

violations, the details of which will be discussed. By the time this Order was issued the 

number of cited violations of this standard had risen to 71 (seventy-one). With the addition of 

yet another 30 C.F.R § 75.400 violation, by the issuance of Order No. 92457810, that number 

became 78 (seventy-eight) such violations. Recall that as of June 17, 2021, the number of 

cited violations was 57 (fifty-seven). Thus, in the six-month interval, the Cumberland Mine 

was cited at least another 15 times for violating this standard. 

Notable aspects of Order No. 927780 

The Respondent’s argument is that “the facts and evidence would not support the high 

negligence or unwarrantable failure findings. Specifically, Respondent would argue that the 

conditions could have occurred or worsened over a short period of time due to the quantity and 

velocity of air on the belt and that the evidence would not prove that the conditions observed by 

the inspector were indicative of the conditions at the time of the most recent examination.” Motion 

at 3-4.

This claim is hard to believe, and the Secretary apparently takes the same view, as he is 

unwilling to walk away from the issuing inspector’s negligence and unwarrantable failure 

designations. There are several reasons to look askance at the Respondent’s claim. For starters, 

there is the inspector’s undisputed finding of ten separate instances of 75.400 violations for 

this Order alone. Any one of the conditions would have justified issuance of a violation of the 
15

standard. Then too, among the ten instances, seven (7) involved bottom rollers turning in loose 

coal and coal fines. These accumulations were not restricted to bottom rollers; the inspector noted 

that “[a]ccumulations [we]re present on mine floor, roof, ribs, structure and water line on previous 

rock dusted surfaces” at the 11 block to 6 Mains West #1 Transfer, and that those “accumulations 

measured 10 foot wide by 2750 feet long.” Petition at 13-15 (emphasis added). 

And one can gain a true sense of the enormity of the violations for this order as it took 

“[s]even Hourly miners, two supervisors and three rock dusters work[ing] to correct [the violative] 

conditions for 3 hours for total of 36 man hours to remove[ ] all accumulations and rock dust the 

area.” Petition for a Civil Penalty at 10-11 (emphasis added).

With the Order being issued on December 20, 2021, it is noteworthy that none of the 

excuses later raised by the Respondent’s attorney, were advanced when the inspector held a safety 

and health conference on January 6, 2022. Yet, one would have expected those later-raised claims 

to have been raised at the conference, because they were factually-based excuses which did not 

require an attorney’s expertise, the point being that, if they existed, the mine operator had amply 

opportunity post the Order’s issuance to learn of and assert the claim. With ten separate instances 

found, that number by itself, casts doubt on the claim that they all “could have occurred or 

worsened over a short period of time.”

With all of the foregoing, MSHA understandably reviewed the Order to determine whether 

a special assessment was appropriate. Cogently, that review led to the conclusion that it was 

warranted. MSHA noted that its inspector “observed extensive accumulations of combustible 

material on the 6 Mains West #1 Belt, including loose coal, coal fines, and float coal dust. The 

material was observed on the mine floor, roof, ribs and on equipment. In multiple places, the 

material was in contact with moving belt rollers, and in one location was warm to the touch and 

emitting smoke. These conditions provided fuel for a mine fire and could have resulted in serious 

injuries to multiple miners.” Petition at 7. On the basis of those findings, MSHA concluded that 

the multiple instances “exhibited a high degree of negligence, presented significant risk of injury, 

and [we]re part of an extensive history of accumulation violations at this mine. This indicates the 

need for greater deterrence than the regular assessment penalties would provide.” Id. 

It must be asked whether in circumstances such as this do penalty reductions of this order 

faithfully carry out Congress’ express direction that penalties for violations are to be of such a 

magnitude that mine operators are sufficiently incentivized to comply with the safety and health 

standards or whether reduced penalties are a cheaper alternative to compliance.

 

Notable aspects of Order No. 92457810

Barely a month after the same MSHA inspector issued his Order, No. 927780, he issued 

another order for violations of the same safety standard, 30 C.F.R. § 75.400, addressing 

accumulations of combustible materials. This time the inspector found, not 10, but 26 (twentysix) separate instances of the standard being violated. More dramatic than the effort required to 

abate the violative accumulations found for Order No. 9257780, it “took approximately 10 men 
16

per shift and 24 hours to correct [the accumulations] for a total of 720 man hours.” Petition for 

a Civil Penalty at 16 (emphasis added). 

As with Order No. 927780, the Respondent again contends that “the high negligence and 

unwarrantable failure findings are not supported. Specifically, Respondent argues that miners 

were working on the cited conditions when the order was issued and that the examination books 

show that corrective actions were being taken on an ongoing basis. Furthermore, because a large 

portion of the mine had recently been sealed, increased air velocity on the belt caused coal fines 

to be blown off the belt and the conditions would change significantly over a short period of 

time.” Motion at 4-5. 

Given the staggering number of individual instances it is hard to take the Respondent’s 

claims seriously. Several observations cast doubt on those claims. To begin, it is noteworthy 

that both Order No. 927780 and Order No. 9257810, issued just a month apart, stem from 

accumulations on the same belt, the 6 Mains West #1 belt. While each of the 26 instances 

recorded for Order No. 9257810 make out violations, some are particularly noteworthy. For 

example, instance number 2 recorded accumulations 8 feet wide by 1500 feet long. Others were 

also extremely long: instance number 5 at 750 feet; instance no. 6 at 500 feet, instance no 14 at 

125 feet. Eleven (11) of the violations involved loose coal and coal fines in contact with a 

bottom roller. 

A disaster waiting to happen?2 

On several occasions the Commission has spoken to the importance of this standard.

In San Juan Coal, 29 FMSHRC 125, (March 2007), it noted: 

Repeated similar violations may be relevant to an unwarrantable failure 

determination to the extent that they serve to put an operator on notice that greater 

efforts are necessary for compliance with a standard. Amax Coal Co., 19 FMSHRC 

846, 851 (May 1997); see also Consol, 23 FMSHRC at 595 (“a high number of past 

violations of section 75.400 serve to put an operator on notice that it has a recurring 

safety problem in need of correction.”) (citations omitted). The purpose of 

evaluating the number of past violations is to determine the degree to which those 

violations have “engendered in the operator a heightened awareness of a serious 

accumulation problem.” Mid-Continent Res., Inc., 16 FMSHRC 1226, 1232 (June 

1994); see also Consol, 23 FMSHRC at 595. The Commission has also recognized 

that ‘past discussions with MSHA about an accumulation problem serve to put an 

operator on heightened scrutiny that it must increase its efforts to comply with the 

standard.’” Consol, 23 FMSHRC at 595 (citations omitted).

Id. at 131.

2 A mining disaster is defined as an incident with 5 or more fatalities.

https://wwwn.cdc.gov/NIOSH-Mining/MMWC/MineDisasters/Count
17

In Mid-Continent Resources, 16 FMSHRC 1218 (June 1994), again addressing 30 

C.F.R § 75.400, the Commission rejected the idea that where the coal in issue is of low 

combustibility, that does not prevent a significant and substantial finding as “coal is, by its 

nature, combustible.” Id. at 1222.

In another Mid-Continent Resources case, 16 FMSHRC 1226 (June 1994), the 

Commission noted that section 75.400 is violated “ ‘when an accumulation of combustible 

materials exists.’ Old Ben Coal Co., 1 FMSHRC 1954, 1956 (December 1979); see also

Old Ben Coal Co., 2 FMSHRC 2806, 2808 (October 1980). Id. at 1229. The Commission 

has further explained that a prohibited “accumulation” refers to a mass of combustible 

materials that could cause or propagate a fire or explosion. Old Ben, 2 FMSHRC at 2808.” 

Such combustible material includes float dust, coal fines, and lump coal.” Id.

That decision underscored the relevance of a significant history of 75.400 violations, noting 

that the mine “was cited for 170 alleged violations of section 75.400, which should have 

engendered in the operator a heightened awareness of a continuing accumulation problem. S. Ex. 

M-3. Cf. Peabody Coal Co., 14 FMSHRC 1258, 1259, 1264 (August 1992); Youghiogheny & 

Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 1987).” Id. at 1232. 

If a tragedy occurs, this decision tells the tale of its avoidable origin. With the inspector 

diligently noting the many, many instances of accumulations, and with MSHA then taking those 

matters with the seriousness the conditions demanded, by issuing special assessments, the matter 

was then in the hands of the Secretary of Labor to evaluate the matters. The Secretary did so, but 

in a manner, at least to the Court, that was at odds with itself, as the Secretary stood by the 

inspector’s evaluations, while significantly reducing the special assessment penalties. Though 

the Secretary touts that, if regularly assessed, the penalties would have totaled $19,465.00, that is 

the wrong comparison. MSHA did not apply a regular assessment to the Orders and 

understandably so, as the special assessment totaled $80,200.00. 

As noted by the Third Circuit Court of Appeals in its February 2008 decision regarding 

the Cumberland Mine: “[t]he mine has the unfortunate distinction of being “gassy,” which means 

that it typically liberates more than 1,000,000 cubic feet of methane in a twenty-four hour period 

and consequently requires spot inspection every five days by representatives of MSHA.” 

Cumberland Coal Resources, 515 F.3d 247, 249 (3d Cir. 2008). 

Given the disquieting number of 30 C.F.R § 75.400 violations issued over the past two 

years at this high methane producing mine, 78 times, not to mention that 26 of those occurred 

within a month of these two Orders, it is difficult to appreciate the justification for the 40% (forty

percent) reduction in this instance.
18

Reasonable Inquiry is not Permitted

Despite the Court’s analysis and concerns, it is not permitted to make reasonable inquiry 

about the contentions advanced in settlement motions. This is because, under the Commission’s 

interpretation of section 110(k) of the Mine Act, Congress only intended that the three elements 

as laid out in The American Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal”) and Rockwell 

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

standard for review of settlement submissions. The settlement motion does not require more 

information from the Secretary. Accordingly, per the Commission’s decisions on the scope of a 

judge’s review authority of settlements, the “information” presented in this settlement motion is 

sufficient for approval.

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

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

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

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

the Respondent’s arguments. 

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

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

perfunctory. 

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

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

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

before the penalty petition is filed.

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

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

parties stating the penalty amount to which they have agreed.

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

agreed to by the parties. 

In the context of settlement motions, “facts” have an atypical meaning.3 In discussing 

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

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

objective reality. Fact, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/fact (accessed Nov. 18, 2021). Accordingly, in settlements, a fact does 
19

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

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

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

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

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

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

added).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

therefore the motion is to be approved as appropriate.

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

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

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

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

“considered the representations and documentation submitted, f[ound] that the agreed-upon 

penalties are reasonable, and conclude[d] that the proposed settlement is appropriate under the 

criteria set forth in Section 110(i) of the Act.” Draft Order at 2. The Court cannot subscribe to 

such language.4 Rather, the Court’s review of settlement motions is confined to comparing the 

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

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

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

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

Neither does the Court endorse or agree with the Secretary’s claim that the modifications to the 
20

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

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

FMSHRC 994 (Aug. 2018). 

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

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

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

penalties for the orders contained in this docket are MODIFIED as set forth above and

Respondent Iron Cumberland, LLC, is ORDERED to pay the Secretary of Labor the sum of 

$48,338.00 within 30 days of this decision.

5

___________________

William B. Moran

Administrative Law Judge

Distribution:

Robert S. Wilson, Esq., Office of the Solicitor, Division of Mine Safety and Health

201 12th Street South, Suite 500, Arlington, Virginia 22202-5450

wilson.robert.s@dol.gov

R. Henry Moore, Esq., Fisher Phillips, Six PPG Place, Suite 830, Pittsburgh, Pennsylvania 15222

hmoore@fisherphillips.com

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

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

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

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

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

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

payment (check or money order) to: 

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

Louis, MO 63179-0390.

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