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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, DC 20004

Office: (202) 434-9933 / Fax: (202) 434-9949 

 April 25, 2023

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. PENN 2022-0129

Petitioner, : A.C. No. 36-07230-561904 

 : 

 : 

v. : 

: 

: 

CONSOL PENNSYLVANIA COAL : Mine: Bailey Mine

COMPANY, LLC, : 

 Respondent : 

: 

DECISION APPROVING SETTLEMENT WITH SIGNIFICANT RESERVATIONS

Before: Judge William Moran

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

104(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a Motion to 

Approve Settlement. The Respondent has agreed to the proposed settlement. The originally 

assessed total amount for the citations at issue was $9,036.00 and the proposed total settlement 

amount is $1,897.00, reflecting a 79% (seventy-nine percent) overall reduction, as reflected in 

the following table: 

Citation/Order MSHA’s 

Proposed Penalty

Settlement 

Amount

Other modifications to 

citation/order

9205312 $6,898 $1,393 

Citation modified to moderate 

negligence; 80% reduction in 

penalty

9204928 $1,069 $252 Citation modified to unlikely and nonS&S; 76% reduction in penalty

9205356 $1,069 $252 Citation modified to unlikely and nonS&S; 76% reduction in penalty

TOTAL 

REVISED 

PENALTY

Original total: 

$9,036.00

Revised total: 

$1,897.00 79% overall reduction in penalty
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The Citations in issue

Citation No. 9205312 

This citation invoked 30 U.S.C. §876(b), pertaining to “Communication facilities; locations 

and emergency response plans.” The section addresses telephone service or equivalent twoway communication facilities, which are to be approved by the Secretary or his authorized 

representative. Such communication facilities shall be provided between the surface and each 

landing of main shafts and slopes and between the surface and each working section of any coal 

mine that is more than one hundred feet from a portal. The cited subsection addresses the plan 

requirements.

The section 104(a) citation for this now-admitted violation stated:

The Mine Operator failed to comply with their Approved Emergency Response 

Plan (Approved 9-11-2020), in that, there were no leaky feeder line 

(communication) or tracking tags installed in the 2-K Working Section (009-0 

MMU) Alternate Escapeway (number 3 entry of 2-K) from the loading point inby 

8 crosscut outby to the 5 South Mains Right (K) Track at the number 80 crosscut 

(2420 feet in length). Therefore there was no redundant communication 

between the Primary or Alternate Escapeways and no communication or 

tracking at all in the alternate escapeway or at the Working Section refuge 

alternative/SCSR cache from the alternate escapeway. After issuance of this 

citation, the Operator removed the persons from the working faces to outby the 

loading point until the condition can be corrected. 

The Following statements are from the Approved Mine Emergency Response Plan 

and have not been complied with:

1. Page 1, Communication, 2. Coverage Area, line b.,- The system will also 

generally provide continuous coverage along escapeways and a coverage zone 

approximately 200' feet inby and outby strategic areas of the mine. Strategic Areas 

are fixed work locations where miners are normally required to work, section SCSR 

caches, working section power centers and manned belt transfers.

2. Page 2., 6.,- Survivability, a. The post accident communication system will 

generally provide redundant signal pathways to the surface component. b.-

Redundancy will be achieved by two or more systems installed in two or more 

entries, or one system with two or more pathways to the surface; provided that a 

failure in one system or pathway does not affect the other system or pathway. c.,-

Redundancy means that the system can maintain communication with the surface 

when a single pathway is disrupted. Disruptions can include major events in an 

entry or component failure.

3. Page 3, Tracking System, 1. Performance, aiii.,- Locate Miners in escapeway at intervals not to exceed 2000 feet. iv.,- Locate miners within 200 feet of 
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strategic areas. Strategic Areas are fixed work locations where miners are normally 

required to work, section mass SCSR caches, working section power centers and 

manned belt transfers. vii.,- Locate miners at the key junction in the escape-ways. 

viii.,- Locate miners within 200 feet of refuge alternatives. d.- The electronic 

tracking system will be installed in active daily traveled areas of the mine Primary 

and Secondary escapeways.

4. Page 5, 8. Maintenance, d. In the event of system or component failures, the 

miners will be notified of the problem. The affected miners will begin manual zone 

tracking and continue to advise the surface communication facility of their travel 

until the system is repaired. Repairs will start immediately if there is a loss in 

tracking capabilities. e.- The system will be examined weekly to verify that it is 

maintained in proper operating condition and the results of the examination will be 

entered in a record book.

5. Page 5, 9. Purchase and Installation,- b. If there is system failure the mine 

will revert to manual tracking system that was previously used. 

Petition for Civil Penalty at 11-13.

The citation was terminated the following day, with the inspector noting: 

Through a visual observation after traveling the 2K MMU 009-0 #3 entry (return) 

(Alternate Escapeway) in its entirety and having communication throughout and 

verifying through the tracking software on the Mine's surface of this inspectors 

locations, this citation is hereby terminated. The system is working in the 

previously mentioned entry/area. Secondly, the Mine Operator is carrying a 

record/ledger (weekly exam) to show the systems functioning properly.

Id. at 13.

The issuing inspector, who diligently recorded the aspects of the Approved Mine Emergency 

Response Plan provisions which were not complied with, listed the “Gravity” of the injury or 

illness as ‘Unlikely,’ but listed such injury or illness as “Fatal” if it were to occur. Marked as 

non-significant and substantial, nine miners would be affected. Given the multiple subjects of 

non-compliance, the inspector listed the negligence as “High.” Id.

Analysis for Citation No. 9205312

The penalty, which was regularly assessed at $6,898.00, is now proposed to be settled at 

$1,393.00, representing an 80% reduction. This figure is apparently derived by designating the 

negligence from ‘High’ to “Moderate.’ Motion at 3. The justification for this is short, the 

Motion relating that the “Respondent has represented to the Secretary that it had assigned miners 

to install the missing equipment that is the subject of the citation, but that the work was not 

timely completed because of supply problems.” Undercutting this claim is that the inspector 

found five instances of non-compliance, yet all five violative conditions were somehow corrected 
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the next day, the supply problems apparently having vanished rapidly. This is the sole basis 

presented in the motion for listing the negligence as moderate. 

In support of the Secretary’s contention, the Solicitor’s attorney looks to Vindex Energy 

Corporation, 34 FMSHRC 223, 224 (Jan. 2012) (ALJ) (“Vindex”), asserting that “[i]t is 

‘appropriate to defer to the judgment of the parties’ in arriving at a modified penalty based on 

the §100.3 tables.” Motion at 3. The Solicitor’s attorney is apparently unaware that an 

administrative law judge’s decision is not precedential. Commission Procedural Rule 69(d) 

provides that a Judge's decision does not constitute binding precedent. 29 C.F.R. § 2700.69(d). 

Rain for Rent, 40 FMSHRC 976, 980 (July 2018), Tilden Mining, 36 FMSHRC 1965 (Aug. 

2014). The Secretary also errs in asserting that there is an evidentiary dispute regarding the 

appropriate level of negligence but offers nothing to support the notion that the negligence 

should be deemed “Moderate,” other than the vague remark about the short-lived claim of 

‘supply problems.’ Merely asserting ‘supply problems’ is apparently sufficient to carry the day. 

Citation No. 9204928 

This section 104(a) citation, invokes 30 C.F.R. § 75.1403, well known as the ‘safeguard 

standard.’ It is also a statutory provision which requires that “[o]ther safeguards adequate, in the 

judgment of an authorized representative of the Secretary, to minimize hazards with respect to 

transportation of men and materials shall be provided.” 

For this now-admitted violation, on July 8, 2022 the inspector identified multiple 

violations of the provision, noting that “[t]he 2K section (MMU 009-0) #2 entry track from 0xc -

9.5xc has failed to be properly maintained as identified by the safeguards for the Bailey Mine in 

the aspect: 39 loose track bolts, a loose fish plate and a missing bolt are allowed to exist on 

this track. Also, at the #8 crosscut the rail is out of alignment by 1/4 inch at the time of the 

exam. 

Petition for Civil Penalty at 15 (emphasis added).

The citation noted that the safeguard standard had been cited 59 times in two years at the 

mine. Id.

The citation was terminated four days later, on July 12, 2022, after the identified 

violations were corrected with the inspector stating that the “operator was able to tighten the 

loose bolts with approved means, and properly adjust the rail at #8 crosscut, however will need 

to burn a hole in the rail to install the missing bolt on the right side of the track at #8 crosscut. 

Because the mine is currently operating on shutdown and minimal people are working, additional 

time is granted to get specialized manpower to this location to cut the rail to install the bolt. Id.

at 16.

Analysis for Citation No. 9204928

The Secretary’s attorney cites an administrative law judge decision as precedent, 

misconstrues the Commission’s decision in Mechanicsville Concrete, Inc., 18 FMSHRC 877, 

(June 1996), and does not provide ‘facts’ to support the requirements for settlement, per
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the Commission’s AmCoal decisions: 38 FMSHRC 1972, (Aug. 2016) (“AmCoal I”), 

American Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal II”)

If the basis for the 80% penalty reduction regarding the previously discussed Citation,

No. 9205312, is arguably justified, the same cannot be said for Citation No. 9204928. This is so 

because the offering by the Secretary does not even meet the Commission’s requirements for 

settlement motions. The justification, in its entirety, provides only that:

[t]he Secretary has elected to withdraw the S&S designation for this violation and 

resolve it as “unlikely.” The proposed penalty reduction in this settlement is based 

on the point values in 30 C.F.R. §100.3 based on the Secretary’s modification to 

the citation. The Secretary’s use of the Part 100 regular assessment tables in 

settlement is a prima facie indication that the penalty reduction is fair, reasonable, 

and adequate under the facts, and protects the public interest.

Motion at 3-4. 

The Secretary’s attorney cites once again to the ALJ decision in Vindex, asserting that 

“[i]t is ‘appropriate to defer to the judgment of the parties’ in arriving at a modified penalty 

based on the §100.3 tables.” Id. The inapplicability of ALJ decisions as precedent has been 

discussed above.

The Secretary then adds that she “possesses unreviewable discretion to withdraw an S&S 

designation,” citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879 (June 1996) 

(“Mechanicsville”) (finding “no material difference between the Secretary’s discretion on the 

one hand to vacate a citation [pursuant to RBK Construction, Inc., 15 FMSHRC 2099, 2101 (Oct. 

1993)] and his discretion on the other hand not to issue a citation in the first instance or not to 

designate a citation as S&S.”1 Motion at 4 (“RBK”).

The Secretary continues to inappropriately cite Mechanicsville as authority. This Court 

and other judges have noted that Mechanicsville does not support the Secretary’s claim that she 

possesses unreviewable discretion to withdraw an S&S designation. Yet, the Secretary continues 

to assert otherwise. It’s time to be clear about the Commission’s holding in Mechanicsville.

At the outset of its decision in Mechanicsville, the Commission very plainly set forth 

the issue before it, stating that it “raises the issues of whether a judge on his own initiative can 

designate a violation of a mandatory safety standard to be significant and substantial.” 18 

FMSHRC 877. The Commission’s answer to the issue was equally plain, stating that it “agree[d] 

with the Secretary that the judge erred in determining on his own initiative that the violation was 

S&S.” Id. at 879 (emphasis added). Thus, the decision was expressly limited to the 

Commission’s holding that the judge erred “by adding a new finding and conclusion, i.e., that 

the violation posed a hazard to employees that was reasonably likely to result in a reasonably 

serious injury and was therefore S&S.” Id. at 880 (emphasis added). The Commission’s decision 

1 RBK holds only that the Secretary has the authority to vacate the citations. 15 FMSHRC at 

2101 
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added nothing more to that holding. 

That the Commission’s decision in Mechanicsville did not go beyond the very words it 

employed in that decision was made additionally clear in Spartan Mining, 30 FMSHRC 699 

(August 2008). There, Spartan tried to expand Mechanicsville but the Commission would have 

nothing of it, informing that it “reject[ed] Spartan’s contention that the judge was bound by the 

Secretary’s assessment of the degree of negligence of “moderate” contained in the citation. ...

Spartan unpersuasively relies on Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879-80 (June 

1996) (finding that judge may not designate a violation as S&S on his own initiative), to assert 

that the judge’s alteration of the citation was impermissible. However, Mechanicsville is 

distinguishable because modifying a negligence determination, as the judge did here, is 

authorized by the Mine Act, whereas inserting an S&S designation is not.” Spartan at *22

(emphasis added).

Accordingly, there is no basis for the Secretary’s habitual citation to Mechanicsville as 

authority for the claim that she possesses unreviewable discretion to withdraw an S&S 

designation. It is one thing for the Secretary to argue that the Commission’s holding in 

Mechanicsville should be expanded beyond that holding, but to assert that the decision affords 

the Secretary with unreviewable discretion to withdraw such a finding is beyond the pale. Here, 

the Secretary does not present its contention as an argument. Instead, the Secretary’s attorney 

presents his position as the state of the law. It is not. 

Attorneys have an obligation not to misstate case law. Teamsters Local No. 579 v. B & 

M Transit, Inc., 882 F.2d 274, 280 (7th Cir.1989). Rule 11 of the Federal Rules of Civil 

Procedure requires attorneys to inquire about the ... law before filing pleadings. ... an attorney 

who submits a pleading must certify that: ‘to the best of the [attorney's] knowledge, information, 

and belief formed after reasonable inquiry [the pleading] is ... warranted by existing law or a 

good faith argument for the extension, modification, or reversal of existing law.” Dzwonkoski, 

2008 WL 2163916 (May 16, 2008) (S.D. Ala. 2008) citing Howard v. Liberty Memorial Hosp., 

752 F.Supp. 1074, 1080 (S.D.Ga.1990).

Therefore, unless and until the Commission revises its holding in Mechanicsville, the 

Secretary, both her attorneys and her non-attorney representatives, (Conference and litigation 

representative, “CLRs,”) should cease invoking that decision for propositions not supported by 

it. 

REVISITING PRESENT COMMISSION LAW FOR SETTLEMENT MOTIONS AS 

APPLIED TO THIS MATTER.

Fundamentally, the Secretary’s Motion in this matter does not meet the Commission’s 

test for settlement approvals, as set forth in American Coal Co., 38 FMSHRC 1972, (Aug. 2016) 

(“AmCoal I”), and American Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal II”)

Once past the obvious preliminaries – that a motion for settlement must state the penalty 

amount originally proposed by the Secretary and the new amount the parties have agreed to pay, 
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the Commission’s decision in AmCoal II sets forth the present requirements deemed sufficient 

for its judges in carrying out their “front line oversight of the settlement process” in order “to 

fulfill their duty of determining if a settlement of a penalty is fair, reasonable, appropriate under 

the facts, and protects the public interest.” Id. at 985, 987. 

The Commission repeatedly spoke of the need for ‘factual support’ for penalty reduction. 

Id. at 989, 990. Though the Commission advised that such ‘facts’ “are not limited to facts 

related to the section 110(i) penalty criteria or to the alleged violations,” the Commission still 

required that facts be presented. Id. at 986. Accordingly, it has “required parties to submit facts

supporting a penalty amount agreed to in settlement.” Id. at 987. It noted, “[i]n particular, 

Commission Procedural Rule 31 requires that a motion to approve penalty settlement must 

include for each violation “the penalty proposed by the Secretary, the amount of the penalty 

agreed to in settlement, and facts in support of the penalty agreed to by the parties.” Id.

The Commission rejected the need for a respondent to present legitimate questions of fact 

which can only be resolved through the hearing process and also rejected that there is a need to 

show any legitimate factual disagreement. Id. at 991. As such, the Commission stated that 

“[f]acts alleged in a proposed settlement need not demonstrate a ‘legitimate’ disagreement that 

can only be resolved by a hearing. The Commission’s Procedural Rules and standing precedent 

do not contain such a requirement. Rather, the Commission has recognized that parties may 

submit facts that reflect a mutual position that the parties have agreed is acceptable to them in 

lieu of the hearing process.” Id. 

Despite the above, the Commission’s AmCoal II decision still requires the submission of 

‘facts.’ Such facts must be “mutually acceptable facts that demonstrate the proposed penalty 

reduction is fair, reasonable, appropriate under the facts, and protects the public interest.” Id. at 

991. Here, no facts have been presented. 

It is not an exaggeration to describe the basis for the Secretary’s justification as 

essentially ‘because we can.’ Though set forth above, it is worth repeating what the Secretary 

presented here, to wit:

[t]he Secretary has elected to withdraw the S&S designation for this violation and 

resolve it as “unlikely.” The proposed penalty reduction in this settlement is based 

on the point values in 30 C.F.R. §100.3 based on the Secretary’s modification to 

the citation. The Secretary’s use of the Part 100 regular assessment tables in 

settlement is a prima facie indication that the penalty reduction is fair, reasonable, 

and adequate under the facts, and protects the public interest.

Motion at 3-4. 

None of this amounts to mutually acceptable facts that demonstrate the proposed penalty 

reduction is fair, reasonable, appropriate under the facts, and protects the public interest.
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Citation No. 9205356

This citation also invokes 30 C.F.R. § 75.1403. Issued on July 20, 2022, the inspector’s 

Condition or Practice section of the citation states: 

The Mine Operator failed to maintain an unobstructed travelway of at least 24 

inches in width on walk side of the 11-L Conveyor Belt between the outby end of 

the storage unit andthe bottom step of the 6 south Mains Left Track overcast stairs 

for a distance of 30 feet in length. Old pieces of conveyor belt were humped up in

the air, there were 2 small rolls of conveyor belt, splicing nail buckets, splices, a 

conveyor belt cutter and splicing template filling most of the required walkway in 

the cited area. The walkways in this area was wet, muddy and very slippery 

without having to traverse this extraneous materials. The Operator immediately 

started to clear the extraneous materials after the issuance of this citation.

Standard 75.1403 was cited 61 times in two years at mine 3607230 (60 to the 

operator, 1 to a contractor).

Petition for Civil Penalty at 18 (emphasis added).

The citation was terminated on July 21, 2022, with the inspectors remarking that “[a]ll of 

the extraneous materials have been cleaned out of the cited travelway/walkway. There is now at 

least 24 inches of clear, unobstructed travelway, therefore this citation is terminated. Id. at 19.

Analysis for Citation No. 9205356

As the Secretary’s attorney seeks the same modifications to this citation as he did for 

Citation No. 9204928 and offers the same justification, the Court’s previous analysis applies.

Summary:

As discussed above, the Secretary has cited to inapplicable precedent, by relying upon an 

administrative law judge decision, inappropriately cited to Mechanicsville Concrete, Inc., 18 

FMSHRC 877, (June 1996), for a proposition that case does not support, and failed to meet the 

Commission’s standards for an acceptable motion to approve settlement, per its decisions in 

AmCoal I and AmCoal II. 

That said, because the Commission has, to the best of this Court’s understanding, a 100% 

approval rate for settlement motions, it has decided to approve the settlement in this instance 

because the Commission examines all settlement determinations made by its judges, and has the 

authority, per 29 C.F.R. §2700.71, to review a judge’s decision on its own motion.2

2 29 C.F.R. § 2700.71, titled, “Review by the Commission on its own motion,” provides “[a]t any 

time within 30 days after the issuance of a Judge's decision, the Commission may, by the 

affirmative vote of at least two of the Commissioners present and voting, direct the case for 

review on its own motion. Review shall be directed only upon the ground that the decision may 

be contrary to law or Commission policy or that a novel question of policy has been presented. 
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The Court has considered the Secretary’s Motion and approves it solely on the basis of 

the Commission’s decisions in The American Coal Co., 40 FMSHRC 983 (Aug. 2018) and 

Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) for the standard to be applied by 

administrative law judges when reviewing such settlement motions under the Commission’s 

interpretation of section 110(k) of the Mine Act. As noted, under those decisions, reasonable 

inquiry by the Court is not permitted. 

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.

WHEREFORE, the motion for approval of settlement is GRANTED. Citation No. 

9205312 is modified to moderate negligence, Citation No. 9204928 is modified to unlikely and 

non-S&S, Citation No. 9205356 is modified to unlikely and non-S&S.

It is ORDERED that the Respondent pay the agreed-upon civil penalty of $1,897.00 

within 30 days of this order.3

 Upon receipt of payment, this case is DISMISSED. 

 

 ____________________ 

 William B. Moran

 Administrative Law Judge

Distribution:

Attorney Kyle D. Stelmack, U.S. Department of Labor, Office of the Regional Solicitor

1835 Market Street, Mailstop SOL/22, Philadelphia, PA 19104 

Stelmack.kyle.d@dol.gov

Craig S. Aaron, CONSOL Energy, Inc., 275 Technology Drive, Suite 101 

Canonsburg, PA 15317 craigaaron@consolenergy.com 

The Commission shall state in such direction for review the specific issue of law, Commission 

policy, or novel question of policy to be reviewed. Review shall be limited to the issues specified 

in such direction for review. 

3 Penalties may 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 vital to include Docket and A.C. Numbers when remitting payments.