i 

November 2022 

TABLE OF CONTENTS 

COMMISSION ORDERS 

11-28-22 PEABODY MIDWEST MINING, 

LLC 

LAKE 2017-0450 Page 655

ADMINISTRATIVE LAW JUDGE DECISIONS 

11-08-22 HASKELL ADDINGTON v. XMV, 

INC., and DEBRA VAUGHAN 

WEVA 2022-0114-D Page 657

ADMINISTRATIVE LAW JUDGE ORDERS 

11-02-22 RULON HARPER CONSTRUCTION, 

INC 

WEST 2022-0249 Page 671

11-02-22 RULON HARPER CONSTRUCTION, 

INC 

WEST 2022-0250 Page 681
ii 

No Review Was Granted or Denied During The Month of November 2022 
COMMISSION ORDERS
44 FMSHRC Page 654
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

November 28, 2022 

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

ORDER

BY THE COMMISSION: 

On September 17, 2020, the Petition for Discretionary Review filed by the Secretary of 

Labor in the above-referenced case was granted. The Commission hereby VACATES that 

Direction for Review. The Administrative Law Judge’s Decision is final. 

/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 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

PEABODY MIDWEST MINING, LLC 

Docket No. LAKE 2017-0450 

44 FMSHRC Page 655
Distribution (by e-mail): 

Andrew R. Tardiff, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202-5450 

tardiff.andrew.r@dol.gov 

Arthur M. Wolfson, Esq. 

Fisher & Phillips LLP 

Six PPG Place, Suite 830 

Pittsburgh, PA 15222 

awolfson@fisherphillips.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Administrative Law Judge David P. Simonton 

Federal Mine Safety & Health Review Commission 

Office of the Chief Administrative Law Judge 

721 19th Street, Suite 443 

Denver, CO 80202-2536 

dsimonton@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@DOL.GOV 

44 FMSHRC Page 656
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, D.C. 20004 

November 8, 2022 

HASKELL ADDINGTON, 

 Complainant, 

 v. 

XMV, INC., 

 and 

DEBRA VAUGHAN, 

 Respondents. 

 DISCRIMINATION PROCEEDING 

 Docket No. WEVA 2022-0114-D 

 MSHA No. PINE CD 2021-06 

 Mine No. 39 

 Mine ID 46-09261 

DECISION GRANTING RESPONDENTS’ MOTION FOR SUMMARY DECISION 

This discrimination proceeding is before me pursuant to section 105(c)(3) of the Federal 

Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(3). Chief Administrative 

Law Judge Glynn F. Voisin assigned me this case on January 3, 2022. On January 27, 2022, I set 

this case to be heard on June 14–15, 2022, in Beckley, West Virginia. On April 5, 2022, the 

parties filed a Joint Motion to Continue Hearing Date, which I granted and thus rescheduled the 

hearing for September 13–15, 2022. Due to a delay in completing discovery the parties asked for, 

and I agreed to, a revision of the prehearing order deadlines. 

On August 26, 2022, Respondents filed their Motion for Summary Decision.1

 I issued an 

order on August 31, 2022, continuing the hearing to allow time to consider the extensive 

documentary evidence provided in Respondents’ motion, as well as any opposition filed by the 

Complainant. (Order to Continue Hr’g Pending Determination on Resp’ts’ Mot. for Summ. 

Decision at 1–2.) My order also permitted Addington time to file an opposition without 

simultaneously preparing for hearing. On September 7, 2022, Complainant filed his Response in 

Opposition to the Motion for Summary Decision. Thereafter, on September 15, 2022, 

Respondents filed a Motion for Leave to File Reply, which I do not consider.2

1

 In this decision, the Memorandum of Law in Support of Respondents’ Motion for 

Summary Decision that accompanies their two-page motion for summary decision is cited as 

“Mot. Mem. at __” with references to its Exhibits A–T. Complainant’s Response in Opposition 

to Motion for Summary Decision is cited as “Opp’n at __,” with references to its Exhibits 1–3. 

2

 Pursuant to Commission Procedural Rule 67 no reply brief is contemplated after an 

opposition is filed to a motion for summary decision. 29 C.F.R. § 2700.67. Respondents had an 

opportunity to lay out their view of the case in their motion for summary decision with its 

voluminous attachments. Although Complainant filed no response to the Motion for Leave to 

File Reply, Respondents are not entitled to the proverbial “second bite at the apple,” and their 

motion is hereby DENIED. 

44 FMSHRC Page 657
Based on the entire record, I determine Addington alleges no genuine issue as to any 

material fact and conclude that Respondents are entitled to summary decision as a matter of law.3

I. PROCEDURAL AND FACTUAL BACKGROUND 

A. Addington’s Complaints Filed with MSHA and the Commission 

On August 30, 2021, Addington filed a discrimination complaint with MSHA using the 

agency’s standard form and naming as the violators Respondents XMV, Inc. (“XMV”) and 

Debra Vaughan, the company’s human resources manager. (Compl., Ex. A; Mot. Mem., Ex. A at 

1–2.) In MSHA Forms 2000-123 and 2000-124 Addington alleges that XMV and Vaughan 

discriminated and retaliated against him and interfered with the assertion of his Part 90 rights by 

“refusing to afford [him] access to benefits or a reasonable accommodation for [his] breathing 

impairment . . . due to [his B]lack [L]ung [D]isease” (coal workers’ pneumoconiosis) after 

Respondents became aware that his chest X-ray under the Coal Workers’ Health Surveillance 

Program showed complicated Black Lung Disease. (Compl., Ex. A; Mot. Mem., Ex. A at 1–2.) 

In his statement to the MSHA investigator, Addington acknowledges he received a June 19, 

2020, letter as part of this health surveillance program regarding a free chest X-ray, which he 

took on October 30, 2020. (Mot. Mem., Ex. D at 5–6.) On October 27, 2021, MSHA notified 

Addington of its investigation into his discrimination claim and its determination that a violation 

of section 105(c) of the Mine Act had not occurred.4

 (Compl., Ex. B; Mot. Mem., Ex. S.) 

Thereafter, on November 26, 2021, Addington filed a complaint with the Commission 

pursuant to section 105(c)(3) of the Mine Act. Addington’s section 105(c)(3) complaint alleges 

that XMV and Vaughan engaged in wrongful discrimination, retaliation, and interference when 

they “improperly accessed information about” Addington’s Part 90 eligibility “and then withheld 

that information” from Addington, “preventing him from availing himself of his Part 90 rights to 

remove himself from dusty coal environments until after his [B]lack [L]ung [D]isease had 

 

3

 Per Commission Procedural Rule 67(b), a motion for summary decision is granted only 

if “the entire record, including the pleadings, depositions, answers to interrogatories, admissions, 

and affidavits, shows: (1) [t]hat there is no genuine issue as to any material fact; and (2) [t]hat 

the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b). 

4

 The Mine Act provides that upon receipt of a discrimination complaint, the Secretary 

“shall cause such investigation to be made as he deems appropriate,” and that “[i]f upon such 

investigation, the Secretary determines that the provisions of this subsection have been violated, 

he shall immediately file a complaint with the Commission . . . .” 30 U.S.C. § 815(c)(2). Section 

105(c)(3) of the Mine Act provides that if the Secretary determines no discriminatory violation 

occurred, “the complainant shall have the right, within 30 days of notice of the Secretary’s 

determination, to file an action in his own behalf before the Commission, charging 

discrimination or interference in violation of [section 105(c)(1)].” 30 U.S.C. § 815(c)(3). 

44 FMSHRC Page 658
progressed to the point of respiratory failure, causing him to lose wages and benefits.” 5 (Compl. 

at 1.) Addington also alleges that Respondents refused to provide requested accommodations or 

any ongoing assistance with healthcare premiums while Addington was unable to work due to 

his Black Lung Disease. (Compl. at 1.) Addington claims that after he expressed concerns about 

his Black Lung Disease, Respondents took away his customary Saturday work hours and reduced 

his pay by $10,000, whereby according to Addington’s Prehearing Statement “beginning in 

2017” XMV departed from an arrangement of “agreeing to keep him in non-dusty areas of the 

mines” and “require[ed] him to work underground shoveling belts . . . that increased his exposure 

to coal mine dust. . . . [and] began reducing his wages repeatedly” from a top salary of “$125,000 

annually.” (Complainant’s Pre-hr’g Statement at 2–3.) 

The documentary evidence, including Addington’s statement to the MSHA investigator, 

reveals he lost $10,000 off his salary around December 2016 (Mot. Mem., Ex. D at 4), and 

Addington’s deposition testimony (Mot. Mem., Ex. B at 139) establishes that the last of these 

$10,000 salary cuts occurred on April 26, 2020, before Addington applied for Part 90 status “in 

the fall of 2020.” (Complainant’s Pre-hr’g Statement at 1; Compl. at 2; Mot. Mem., Exs. D at 4–

5, G.) In his September 3, 2021, statement to the MSHA investigator Addington does not allege 

any changes in his salary or work environment after applying for his chest X-ray, which was 

taken on October 30, 2020. (Mot. Mem., Ex. D at 5–6.) Addington’s last transfer at work 

occurred on September 22, 2020, when he transferred from Mine 43 (working on the surface 

areas of that mine) to Mine 39 (also on the surface areas of the mine) with the same title of 

“Foreman Projects” and doing “the same work that [he] had been doing at [Mine] 43” at the 

same payrate of “$105,000 + $800 VAP.” (Opp’n, Ex. 2 at 23; Mot. Mem., Exs. B at 23, 139, D 

at 5, H.) Addington told the MSHA investigator that “on January 18, 2021[,] I had acute 

respiratory failure and that was my last day of work at [Mine] 39,” whereafter “I got set up on 

short term disability benefits in January [2021].” (Mot. Mem., Ex. D at 6.) 

B. Respondents’ Allegations 

In their motion for summary decision Respondents argue, among other things, primarily: 

(1) section 105(c) of the Mine Act is an inappropriate vehicle for Addington’s generalized claims 

of discrimination and failure to accommodate based on his Black Lung Disease; (2) Addington’s 

claims are unsupported by the record because XMV did not and could not have discriminated 

against him given the timeline of events; (3) Addington’s claims are procedurally improper and 

 

5

 Addington seeks the following remedies—an injunction barring Respondents from 

engaging in further retaliation and discrimination, back pay with interest for his reduced hours 

and work allegedly missed for failure to move him to a less dusty area, retention of his current 

healthcare coverage without paying for healthcare premiums beginning October 2021 to assist 

with the costs of his lung transplant, retention of his life insurance benefits, and attorney costs 

and fees. (Compl. at 2, 5, 6.) 

44 FMSHRC Page 659
barred by the statute of limitations; and (4) there is no issue of material fact and thus 

Respondents are entitled to summary decision as a matter of law. (Mot. Mem. at 1, 7, 17–19.)6

 

For purposes of Commission Procedural Rule 67, I must examine and address the 

material facts as laid out in the parties’ pleadings, depositions, and documentary evidence, to rule 

on Respondents’ motion. 

C. Material Facts in the Pleadings, Depositions, and Documentary Evidence 

It is undisputed that Complainant Addington was a coal miner who worked for XMV 

since 2012, and that he developed and suffered from a severe form of Black Lung Disease called 

complicated pneumoconiosis. In an affidavit dated May 20, 2015, Addington acknowledges that 

a doctor diagnosed him with “complicated pneumoconiosis” in early 2015 and that Addington 

had “sufficient residual ventilatory capacity to return to [his] last coal mine job.” (Mot. Mem, 

Ex. C at 1.) Addington returned to work at XMV despite acknowledging “the potential for 

exposure to dust and a possible progression of [his] lung condition.” (Mot. Mem, Ex. C at 2.) 

Over two years later on October 10, 2019, a U.S. Department of Labor Administrative 

Law Judge (“ALJ”) noted in his decision adjudicating Addington’s federal Black Lung Benefits 

claim that XMV “stipulates that [Addington] has complicated pneumoconiosis and is entitled to 

the irrebuttable presumption of total disability due to pneumoconiosis.” Addington v. XMV, Inc., 

Case No. 2017-BLA-05663, slip op. at 3 (Oct. 10, 2019) (ALJ).7

 The Department of Labor ALJ 

who determined Addington suffered from complicated pneumoconiosis wrote that Addington 

“had to stop [work at XMV] on October 7, 2014, due to breathing problems,” which comports 

with Addington’s journal notes. (Opp’n, Ex. 1); Addington v. XMV, Inc., Case No. 2017-BLA05663, slip op. at 3. The ALJ wrote that a “chest X-ray dated January 6, 2015, was read as 

positive for complicated pneumoconiosis,” whereby the agency issued its decision awarding 

Addington benefits on September 29, 2016. Addington v. XMV, Inc., Case No. 2017-BLA-05663, 

slip op. at 2. Indeed, the ALJ stated, “[t]he only issue [XMV] contests is whether [Addington’s] 

benefits should be offset by his wages.” Id. That’s because Addington decided to return to work 

at XMV even with his complicated pneumoconiosis diagnosis, per the affidavit he signed on 

May 20, 2015. (Mot. Mem., Ex. C.) Despite Addington’s diagnosis of complicated 

pneumoconiosis and Black Lung Benefits award, he did not apply for Part 90 status at that time. 

6

 Respondents also allege that Addington’s complaint violated the statute of limitations 

because section 105(c)(2), 30 U.S.C. § 815(c)(2), requires a miner to file any complaint under 

this section “within 60 days after such violation occurs,” and that Addington added claims after 

the initial filing of the MSHA forms. I find these issues inapposite given my ruling. 

 

7

 I take judicial notice of the U.S. Department of Labor ALJ decision inasmuch as it is a 

public document discussing an issue at the heart of this case—the determination that Addington 

suffered from complicated pneumoconiosis and his employer’s knowledge of it. See, e.g., Sec’y 

on behalf of McGary v. The Marshall Cty. Coal Co., 38 FMSHRC 2006 (2016) (finding 

Commission Judge did not abuse discretion in admitting federal court complaint because “the 

court complaint is a publicly-filed document regarding a dispute over the reporting of mine 

safety and health hazards at Respondents’ mines, an issue that is at the heart of this case”). 

44 FMSHRC Page 660
Not until receiving a notice dated June 19, 2020, whereby XMV miners could obtain a 

free chest X-ray to determine Part 90 eligibility did Addington contemplate applying for Part 90 

status. (Mot. Mem., Ex. I); see generally 30 C.F.R. Part 90 (Mandatory Health Standards–Coal 

Miners Who Have Evidence of the Development of Pneumoconiosis). As he explains in his 

deposition, Addington consciously decided not to seek Part 90 status earlier: 

Q: You indicated you were getting the chest X-ray because you 

wanted to try to get Part 90 status. But what did you understand 

Part 90 status to entail? 

A: Again, you know, after we talked about Dale, you know, he had 

mentioned that — and honestly, I didn’t get the Part 90 early on is 

because I didn’t want to harm the company, because I knew that 

they would have to run dust — on me or I would have filed it a 

long time ago, but I wanted to be as fair as I could be. As long as I 

could continue to work and nobody really bothered my pay and my 

benefits, then I just wanted to leave it as is because if I got fired at 

XMV and I went to try to pursue another job somewhere else, then 

I knew the Part 90 would affect me in getting a job somewhere else 

because managers and people at the coal mine know what the Part 

90 — the protections that have to come along with the Part 90. So I 

elected not to do it ...” 

(Mot. Mem., Ex. E at 29.) 

Addington underwent a chest X-ray at a local hospital on October 30, 2020, as part of the 

process administered by the National Institute for Occupational Safety and Health (“NIOSH”), a 

component of the Department of Health and Human Services (“HHS”), for miners to be screened 

for Part 90 eligibility. (Mot. Mem., Ex. D at 6.) In his statement to the MSHA investigator, 

Addington noted a delay in the reading of his October 30, 2020, X-ray due to a nurse at the 

hospital making a mistake and not processing his results. (Mot. Mem., Ex. D at 6; Opp’n, Ex. 2 

at 33.) Addington’s chest X-ray was read by two NIOSH-approved doctors on January 11, 2021 

(Mot. Mem., Ex. J), and January 18, 2021 (Mot. Mem., Ex. K), as being positive for 

pneumoconiosis. See 42 C.F.R. §§ 37.52, 37.53 (HHS regulations on radiograph classifications). 

On January 20, 2021, HHS made a final determination that Addington’s October 30, 

2020, chest X-ray was positive for pneumoconiosis making him eligible to assert his Part 90 

transfer rights. (Mot. Mem., Ex. L); see 42 C.F.R. § 37.102 (transfer to less dusty area). After 

being notified of his Part 90 eligibility Addington exercised his Part 90 rights by signing an 

“Exercise of Option to Transfer” form and sending it to MSHA on January 21, 2021. (Mot. 

Mem., Ex. M.) MSHA notified XMV that Addington exercised his rights to dust monitoring and 

a transfer to a low-dust area of the mine by letter dated January 29, 2021. (Mot. Mem., Ex. N.) 

44 FMSHRC Page 661
II. PRINCIPLES OF LAW 

A. Summary Decision 

Commission Procedural Rule 67(b) provides that a motion for summary decision shall be 

granted only if “the entire record, including the pleadings, depositions, answers to 

interrogatories, admissions, and affidavits, shows: (1) [t]hat there is no genuine issue as to any 

material fact; and (2) [t]hat the moving party is entitled to summary decision as a matter of law.” 

29 C.F.R. § 2700.67(b); see Mo. Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981). 

The Commission has consistently held that summary decision is an “extraordinary 

procedure” and analogizes it to Rule 56 of the Federal Rules of Civil Procedure. Lakeview Rock 

Prods., Inc., 33 FMSHRC 2985, 2987 (Dec. 2011) (citations omitted). The Supreme Court, as 

the Commission observes, has determined that summary judgment is only appropriate “upon 

proper showings of the lack of a genuine, triable issue of material fact.” Id. at 2987–88 (citing 

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). The Supreme Court has also held that both 

the record and “inferences to be drawn from the underlying facts” are viewed in the light most 

favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 

(1962)). Commission Judges should not grant motions for summary decision “unless the entire 

record shows a right to judgment with such clarity as to leave no room for controversy and 

establishes affirmatively that the adverse party cannot prevail under any circumstances.” 

KenAmerican Res., Inc., 38 FMSHRC 1943, 1947 (Aug. 2016) (quoting Campbell v. Hewitt, 

Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994)). 

B. Protections under Section 105(c) of the Mine Act 

Section 105(c)(1) of the Mine Act8

 bars discrimination against or interference with 

miners asserting a protected right. For discrimination claims, the Commission applies the 

Pasula-Robinette framework in which a complainant must establish a prima facie case showing 

the miner (1) engaged in protected activity, (2) suffered an adverse action, and (3) the adverse 

action was motivated in any part by the protected activity. Driessen v. Nev. Goldfields, 20 

FMSHRC 324, 328 (Apr. 1998); Sec’y of Labor on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817–18 (Apr. 1981); Sec’y of Labor on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786, 2799–2800 (Oct. 1980), rev’d on other grounds, sub 

nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). 

The Commission has no settled legal test for claims of interference. See Monongalia Cty. 

Coal Co., 40 FMSHRC 679, 680–81 (June 2017). Several Commission Judges have applied the 

Secretary’s two-prong test, which asks first whether the alleged interfering actions reasonably 

can be viewed as “tending to interfere with the exercise of protected rights,” and, second, 

whether the interfering person can “justify the action with a legitimate and substantial reason 

whose importance outweighs the harm caused to the exercise of protected rights.” See, e.g., 

8

 “No person shall discharge or in any manner discriminate against . . . or otherwise 

interfere with the statutory rights of any miner . . . because of the exercise by such miner . . . on 

behalf of himself or others of any statutory right afforded by [this Act].” 30 U.S.C. § 815(c)(1). 

44 FMSHRC Page 662
Armstrong Coal Co., 39 FMSHRC 1072, 1089 (May 2017) (ALJ) (applying Secretary’s 

proposed test for interference), appeal dismissed per settlement stipulation, 40 FMSHRC 973, 

974 (July 2018). Some Commissioners, however, would replace the second prong of the test with 

a requirement that the complainant demonstrate the interfering actions were motivated by animus 

to the exercise of protected rights. Monongalia Cty. Coal Co., 40 FMSHRC at 708–29.

C. “Part 90 Miner” Rights under 30 C.F.R. Part 90 

One set of rights protected under the Mine Act are the Part 90 rights afforded to miners 

employed at coal mines who have evidence of pneumoconiosis. See 30 C.F.R. § 90.2 (definition 

of “Part 90 miner”). Part 90 rights include a miner’s option to transfer without a loss of pay to a 

less dusty area of the mine that is subject to testing where the average concentration of respirable 

dust in the mine atmosphere during each shift to which that miner is exposed is continuously 

maintained at or below 1.0 milligrams per cubic meter of air. 30 C.F.R. §§ 90.1, 90.3; see Goff v. 

Youghiogheny & Ohio Coal Co., 7 FMSHRC 1776, 1778–79 (Nov. 1985) (holding miner could 

maintain discrimination claim while Part 90 application was pending), and affirming decision on 

remand, 8 FMSHRC 1860, 1862–63 (Dec. 1986) (upholding ALJ decision on remand that mine 

operator had rebutted the miner’s prima facie case of discrimination). 

A multi-step interagency process exists for a miner to apply under Part 90 and exercise 

the option to become a “Part 90 miner.” See 30 C.F.R. §§ 90.2, 90.3; 42 C.F.R. §§ 37.52, 37.53, 

37.102. HHS/NIOSH sends miners an initial letter notifying them of the availability of getting a 

free chest X-ray that may indicate pneumoconiosis and make them eligible for the Part 90 

program. See 30 C.F.R. § 90.3(a). After the chest X-ray is taken and read, the Secretary of HHS 

interprets the results and, if the miner has pneumoconiosis, the miner is notified in writing of his 

rights along with an Option to Exercise form. Id.; see Rochester & Pittsburgh Coal Co., 12 

FMSHRC 189, 190–91 (Feb. 1990). Upon signing and dating the Option to Exercise form, the 

miner becomes a Part 90 miner with rights to transfer to a low dust area of the mine with 

respirable dust sampling and no loss of pay. Rochester & Pittsburgh Coal Co., 12 FMSHRC at 

192–93; Goff, 7 FMSHRC at 1778–79. 

 

III. DISCUSSION AND ANALYSIS

Because Addington alleges discrimination, retaliation, and interference with his Part 90 

rights, I review his allegations pursuant to the Commission’s case law on these issues. 

As Addington points out, the Commission has jurisdiction and has opined on miners 

filing discrimination cases under section 105(c)(1) for violations of their protections under Part 

90. (Opp’n at 6–8); see Goff v. Youghiogheny & Ohio Coal Co., 7 FMSHRC 1776. The key 

holding of Goff is that “a miner is protected from adverse personnel actions based on his medical 

evaluation or potential transfer pursuant to Part 90 at least as early as the date on which he files 

his application for Part 90 status.” Goff, 7 FMSHRC at 1781–82; see also McGlothlin v. 

Dominion Coal Corp., 37 FMSHRC 1256 (June 2015) (ALJ) (ruling section 105(c) protections 

apply to Part 90 miner applicant). In Goff, the Commission noted that the miner “presented 

sufficient allegations to plead a cause of action,” inasmuch as “[s]everal days prior to his 

discharge, he applied for classification as a Part 90 miner,” and “[t]his application made him ‘the 

44 FMSHRC Page 663
subject of medical evaluation and potential transfer’ within the meaning of section 105(c)(1).” 

Goff, 7 FMSHRC at 1782. The Commission further noted in Goff that the miner “also appears to 

allege that [the coal mine operator] had knowledge of his possible pneumoconiosis and his intent 

to file under Part 90 prior to the mailing of his [Part 90] application.” Id. Thus, the Commission 

in Goff interpreted the miner’s pleadings and documentation to present a claim cognizable under 

section 105(c)(1) of the Mine Act. 

Consequently, I must examine Addington’s pleadings and the entire record to determine 

whether Addington presents a cognizable claim. Using the Pasula-Robinette test for section 

105(c) discrimination claims, I must determine whether Addington has presented sufficient 

allegations to plead a cause of action under section 105(c)(1) for this case to proceed. 

A. Protected Activity Under Section 105(c) 

Addington makes allegations and presents facts that he engaged in protected activity 

when he had a chest X-ray on October 30, 2020, under the auspices of HHS/NIOSH as part of 

applying for Part 90 status.9

 The Mine Act protects miners from discrimination who are engaged 

in the process of seeking Part 90 status. 30 U.S.C. § 815(c)(1); Goff, 7 FMSHRC at 1782.10 Thus, 

Addington’s allegations would satisfy the first element under the Pasula-Robinette test for a 

discrimination or retaliation claim under section 105(c)(1). Also, this would qualify as an 

exercise of a protected activity under the interference tests articulated by the Commission. 

9

 Addington makes general allegations about his inability to work due to his breathing 

condition after his hospitalization on January 18, 2021, but I cannot construe this as protected 

activity under a work refusal theory. See Braithwaite v. Tri-Star Mining, 15 FMSHRC 2460, 

2463–64 (Dec. 1993) (miner has right under section 105(c) to refuse work, if miner has a good 

faith, reasonable belief in a hazardous condition); see also Dolan v. F&E Erection Co., 22

FMSHRC 171, 176 (Feb. 2000) (citing Simpson v. Fed. Mine Safety & Health Rev. Comm’n, 842 

F.2d 453, 461–63 (D.C. Cir. 1988)) (adverse action may be constructive discharge where 

operator has no conscious retaliatory motive but fails to reasonably remedy intolerable 

conditions, leading to resignation of miner who reported conditions). Indeed, the Commission 

flatly rejected a Commission Judge’s determination that a miner’s “medically substantiated 

inability to work underground” constituted the “functional equivalent of a work refusal” that 

could be deemed protected activity. Perando v. Mettiki Coal Corp., 10 FMSHRC 491, 494–96 

(1988). Here, Addington does not allege he refused to work on or after January 18, 2021, and his 

general factual allegations do not constitute a work refusal under Commission case law. 

10 Addington also alleges he engaged in protected activity by complaining to management 

over the years about his difficulty breathing due to his pneumoconiosis. (Compl. at 4; Opp’n at 3, 

Ex. 2 at 23–24.) In paragraph 19 of his Complaint, Addington believes his status as a miner with 

pneumoconiosis provides him protections from reductions in work hours or pay, and that 

Respondents refused to offer Addington any reasonable accommodation or unpaid leave with 

benefits. (Compl. at 4.) The Commission, however, has not recognized a discrimination claim 

under section 105(c)(1) for a miner simply having pneumoconiosis, absent a showing that the 

miner also “was ‘the subject of medical evaluation and potential transfer’ under Part 90.” Goff, 7 

FMSHRC at 1781–82. 

44 FMSHRC Page 664
B. Adverse Action for Discrimination or Retaliation Claims Under Section 105(c) 

Although Addington pleads facts sufficient to meet the first element under the PasulaRobinette test in that he engaged in protected activity by filing a Part 90 application, Addington 

fails under the second element to allege any adverse action taken by Respondents during the 

period of his Part 90 application or after his qualification as a Part 90 miner. Examining the 

parties’ undisputed timeline of events surrounding Addington’s Part 90 application demonstrates 

the hole in Addington’s claims as to his allegations of any adverse action by Respondents. 

Addington’s Part 90 application timeline is as follows: (1) the June 19, 2020, letter from 

HHS/NIOSH notified Addington of the availability of a free chest X-ray to apply for Part 90 

status; (2) Addington had his free chest X-ray taken at a local hospital on October 30, 2020; (3) a 

delay in processing Addington’s X-ray occurred due to an administrative error by a nurse at the 

hospital; (4) two NIOSH-approved doctors read Addington’s chest X-ray as being positive for 

pneumoconiosis on January 11, 2021 (Mot. Mem., Ex. J), and January 18, 2021 (Mot. Mem., Ex. 

K); (5) based upon the X-ray readings HHS made a final determination on January 20, 2021, that 

Addington was eligible under Part 90 (Mot. Mem., Ex. L); (6) Addington received notice of his 

Part 90 eligibility from MSHA and exercised his Part 90 rights by signing his “Exercise of 

Option to Transfer” and sending it to MSHA on January 21, 2021 (Mot. Mem., Ex. M); and (7) 

by letter dated January 29, 2021, Respondents were notified that Addington exercised his option 

to transfer to a low-dust area with quarterly respirable dust testing (Mot. Mem., Ex. N). 

A review of the entire record including pleadings, deposition testimony, and documentary 

evidence, reveals that Addington raises no issues of material fact or alleges that he suffered any 

adverse action at the hands of Respondents during the pendency of his Part 90 application. 

Addington’s last salary cut occurred on April 26, 2020, nearly two months before Addington 

received the June 19, 2020, notice from HHS/NIOSH about applying for Part 90 status. 

(Complainant’s Pre-hr’g Statement at 1; Compl. at 2; Mot. Mem., Exs. D at 4–5, G.) Addington 

had his free chest X-ray taken on October 30, 2020, yet his last work transfer took place over a 

month earlier on September 22, 2020, when he moved to the surface area of XMV’s Mine 39 at 

his same pay rate of $105,000 per year and with the same title he had at Mine 43, which was his 

prior assignment also on the surface area of the mine. (Mot. Mem., Exs. B at 135, H.) He makes 

no allegations that this transfer was an adverse personnel action. Indeed, Addington makes no 

allegations of any adverse personnel action or work change up to the time he took himself to an 

urgent care center due to breathing problems on January 18, 2021, when he was then admitted to 

the hospital. (Mot. Mem., Exs. H, O.) As Addington stated to the MSHA investigator: “[O]n 

January 18, 2021[,] I had acute respiratory failure and that was my last day of work at [Mine] 

39,” whereafter “I got set up on short term disability benefits in January [2021].” (Mot. Mem., 

Ex. D at 6.) Absent from the record are any allegations to suggest Respondents took any adverse 

action against Addington after he applied for Part 90 status in the fall of 2020, or after he become 

a Part 90 miner on January 21, 2021. 

Addington’s loss of company life insurance, health insurance, and other employee 

benefits as noted in the letter he received from Respondents on July 12, 2021 (Opp’n, Ex. 3), 

arose from his own inability to return to work after being admitted to the hospital in respiratory 

failure on January 18, 2021. (Mot. Mem., Exs. E at 66, O.) Addington’s allegation he was 

44 FMSHRC Page 665
somehow treated differently while unable to return to work is also inapposite, because to date he 

is still not cleared by his doctors to return to work. (Mot. Mem., Exs. B at 21, Q, R, T.) 

C. Adverse Action Motivated in Any Part by Protected Activity 

Because Addington has not alleged any adverse action by Respondents during the 

pendency of his Part 90 application or after, it is not possible to analyze the third prong of the 

Pasula-Robinette test for discrimination, i.e., whether the adverse action was motivated in part 

by the protected activity. Consequently, I determine that Addington has not presented sufficient 

allegations to plead a cause of action for discrimination or retaliation under section 105(c). 

D. Interference Claim 

Although Addington makes factual allegations that he engaged in protected activity by 

applying for Part 90 status, which could satisfy an element of a claim of interference under 

section 105(c), he must also plead allegations of interfering actions by Respondents during the 

pendency of his Part 90 application or after he exercised his option to become a Part 90 miner.11 

In his complaint Addington alleges that XMV and Vaughan engaged in wrongful 

interference when they “improperly accessed information about” Addington’s Part 90 eligibility 

“and then withheld that information” from Addington. (Compl. at 1.) The crux of Addington’s 

claim is contained in paragraph 9 of his complaint filed with the Commission where he states: 

In December 2020, Josh Judd and Debra Vaugh[a]n informed 

Addington that the company had learned that Addington had 

received Part[] 90 status. They did not inform Addington of his 

rights to be moved to a low-dust area. They did not inform him that 

he had to take any additional action to assert his Part 90 right. They 

did not afford any protection to [] Addington. 

(Compl. at 3.) These are serious allegations which require thorough analysis. 

 If by the above statement (i.e., “the company had learned that Addington had received 

Part[] 90 status”) Addington means that Respondents knew he was a Part 90 miner in November 

or December 2020 (which they deny), then that would defy logic. The undisputed facts reveal 

HHS made its final determination that Addington’s X-ray was positive for pneumoconiosis on 

January 20, 2021 (Mot. Mem., Ex. L), and Addington became a Part 90 miner on January 21, 

2021, when he signed his “Exercise of Option to Transfer” form and sent it to MSHA. (Mot. 

Mem., Ex. M.) Thus, it is impossible for Respondents to have known in November or December 

2020 about an event that took place on January 21, 2021. 

Looking at the entire record including the pleadings, deposition testimony, and 

documents in the light most favorable to Addington, it is quite possible that XMV and Vaughan 

not only believed Addington would apply for Part 90 status because XMV agreed to pay for free 

11 I need not decide between the two interference tests because Addington fails both. 

44 FMSHRC Page 666
X-rays as stated in the notice dated June 19, 2020 (Mot. Mem., Ex. I), but that Addington would 

eventually qualify as a Part 90 miner because of his pneumoconiosis diagnosis years earlier. 

(Mot. Mem., Ex. C at 1.) Both Addington and XMV knew of, and accepted, Addington’s 

complicated pneumoconiosis diagnosis several years before Addington ever applied for Part 90 

status under the Mine Act during the fall of 2020. Indeed, XMV knew of Addington’s 

complicated pneumoconiosis diagnosis at least as early as 2015, so if Addington applied for Part 

90 protections it would not have taken a leap in logic to conclude he would qualify. 

But Addington’s allegations in his complaint hinge on a misplaced belief that Judd and 

Vaughan’s knowledge of his pneumoconiosis and possible filing of his Part 90 application before

HHS made a final determination that his chest X-ray was positive for pneumoconiosis and before

MSHA had officially notified Addington of his Part 90 status, somehow qualifies as interference 

with his Part 90 rights. Knowledge alone does not qualify as interference, and such an allegation 

is legally erroneous and factually immaterial given the structure of the Part 90 program as 

discussed below. 

XMV and Vaughan’s alleged foreknowledge of Addington’s pneumoconiosis and his 

Part 90 application is immaterial here because, even if true, an operator possesses no role in the 

process of a miner qualifying for, or exercising his transfer option under, Part 90. Per the Part 90 

program regulations, only NIOSH-approved doctors review a miner’s chest X-ray and HHS 

makes the final determination on whether a miner has pneumoconiosis and is eligible for Part 90 

status, whereby notification is given to the miner about the miner’s qualification and transfer 

rights under Part 90. See 30 C.F.R. §§ 90.1, 90.3; 42 C.F.R. §§ 37.52, 37.53, 37.102. And only 

after a miner exercises the transfer option does MSHA notify a coal mine operator about the 

miner’s Part 90 status. See 30 C.F.R. §§ 90.2 (“Part 90 miner” definition), 90.100, 90.102(b), (c) 

(multiple references to operator’s “notification from MSHA that a part 90 miner is employed at 

the mine”). 

Further, under the Part 90 regulations neither XMV nor Vaughan would have a duty to 

transfer Addington to a less dusty area of the mine or begin respirable dust sampling prior to 

being notified by MSHA that Addington had exercised such option under Part 90. See 30 C.F.R. 

§ 90.3(a); §§ 90.100–90.104. Thus, even if Addington’s allegations of Respondents’ 

foreknowledge were proven true, they would have no bearing on his claim of interference, given 

that HHS made its final determination on January 20, 2021 (Mot. Mem., Ex. L), and Addington 

exercised his Part 90 rights on January 21, 2021 (Mot. Mem., Ex. M). Respondents had no legal 

obligation to transfer Addington to a less dusty area of the mine or to “run dust” (i.e., conduct 

respirable dust sampling) at Addington’s workplace until MSHA notified them, which did not 

happen until January 29, 2021, when Respondents received a letter from MSHA that Addington 

was a Part 90 miner. (Mot. Mem., Ex. N.) 

Given the structure of the Part 90 program discussed above, whether Judd and Vaughan 

allegedly knew about Addington’s pneumoconiosis and Part 90 application are not by themselves 

material facts. Put another way, it makes no difference whether Respondents knew in November 

or December 2020 that Addington had pneumoconiosis or that he had applied for Part 90 status, 

because Respondents neither had a role in the Part 90 approval process or in Addington 

becoming a Part 90 miner, nor had they any duty to transfer Addington to a less dusty area or to 

conduct respirable dust sampling until notified by MSHA. Knowledge of Addington’s 

44 FMSHRC Page 667
pneumoconiosis and Part 90 application alone—without an allegation of some interfering action 

by Respondents—cannot satisfy a claim of interference. 

Yet, in his Opposition to the Motion for Summary Decision, Addington focuses on his 

belief that Judd and Vaughan notified him of his Part 90 status earlier in November or December 

2020, rather than after January 21, 2021, when he exercised his transfer option to become a Part 

90 miner. (Opp’n at 8–9; Compl. at 3.)12 Addington points to his deposition testimony to buttress 

the veracity of his allegations that Judd and Vaughan called and advised him of his Part 90 status 

in late November or early December (Opp’n at 2–4, 8–9, Ex. 2 at 33–34), despite documentary 

evidence that no final determination on Addington’s Part 90 status was made by HHS until 

January 20, 2021. (Mot. Mem., Ex. L.) 

But as explained above, any such foreknowledge by Respondents about Addington’s 

application and potential eligibility for Part 90 status means nothing under section 105(c) without 

allegations of some interfering action by XMV or Vaughan. Here, Addington comes up empty 

because he conflates foreknowledge with an interfering action. His bald accusation that 

Respondents somehow delayed his becoming a Part 90 miner holds no water, because the 

administrative process of becoming a Part 90 miner lies with HHS and MSHA, not Respondents. 

Moreover, Addington raises no genuine issue of material fact, and he makes no allegations that 

he suffered any actual delay or interference at the hands of Respondents during the processing of 

his Part 90 application in the fall of 2020 up through his exercising of the option to become a 

Part 90 miner on January 21, 2021, or thereafter. No genuine, triable issue of material fact exists. 

Addington’s interference claim must fail due to the lack of allegations regarding any 

interfering action by Respondents that would have delayed, hindered, or otherwise interfered 

with, his Part 90 application or process of becoming a Part 90 miner. Accordingly, I determine 

that Addington has not presented sufficient allegations to plead a cause of action for a cognizable 

claim of interference under section 105(c)(1). 

C. Conclusion 

The entire record shows that no genuine issues of material fact exist, and Addington 

makes no allegations of an adverse action or interfering action to satisfy a claim under section 

105(c)(1) that Respondents engaged in any discrimination, retaliation, or interference during the 

pendency of his Part 90 application or after becoming a Part 90 miner. Addington was not 

terminated, forced to leave, transferred to a more dusty area, or subject to a pay cut by 

Respondents during the pendency of his Part 90 application. And Addington’s inability to return 

to work is not an adverse action caused by Respondents. Rather, Addington was unable to work 

due to medical reasons on January 18, 2021. HHS only made a final determination that 

Addington’s X-ray showed pneumoconiosis making him eligible under Part 90 on January 20, 

2021. By the time Addington exercised his Part 90 transfer rights on January 21, 2021, he was 

already unable to physically return to work. Indeed, over more than a year later during his 

12 In his opposition, Addington attaches his journal notes from 2014 and 2015 (Opp’n, 

Ex. 1), as well as excerpts of his deposition transcript (Opp’n, Ex. 2), and the suspension of 

benefits letter from XMV and Vaughan dated July 12, 2021. (Opp’n, Ex. 3.) 

44 FMSHRC Page 668
deposition taken on June 27, 2022, Addington stated he had not yet been cleared by his doctors 

to return to work and had no timetable as to a possible return.13 (Mot. Mem., Ex. B at 21.) 

Even when viewed in a light most favorable to Addington, the record and inferences 

drawn show he fails to make a cognizable claim, as his allegations are insufficient to plead a 

cause of action under section 105(c)(1). Legally, Addington’s claims of discrimination, 

retaliation and interference fail, and Respondents’ motion must be granted. This ruling applies 

only to Addington’s claims under the Mine Act and does not address any separate claims or 

remedies he may seek under other statutes, such as section 428 of the Black Lung Benefits Act. 

Respondents prevail because of an administrative process that puts the onus on miners to 

apply for Part 90 status—a process that took months even when the miner and coal mine operator 

would agree the result should be the applicant’s qualification as a Part 90 miner. Requiring a 

miner like Addington to go through the Part 90 application process seems to be a blind spot in 

the intersection of the Black Lung Benefits Act and the Mine Act. The only factor in play was 

time, which begs the question—why would a miner adjudicated as suffering from complicated 

pneumoconiosis and receiving Black Lung Benefits need to apply to receive a chest X-ray and 

wait for HHS to tell him he had pneumoconiosis to determine his eligibility as a Part 90 miner? 

Only the policymakers for the Part 90 rule know. Had Addington been able to exercise his 

transfer option at the time of the June 19, 2020, notice, or earlier, without going through the 

superfluous chest X-ray process, perhaps Addington would still be working. 

Because there is no genuine issue as to any material fact and Addington has not presented 

any cognizable claim under section 105(c) even after viewing the entire in the light most 

favorable to Addington, Respondents demonstrate their entitlement to summary decision as a 

matter of law. Therefore, I conclude that summary decision is appropriate and that Addington’s 

section 105(c) complaint must be dismissed.

IV. ORDER 

Respondents’ Motion for Summary Decision is GRANTED, and this proceeding is 

hereby DISMISSED. 

 /s/ Alan G. Paez 

Alan G. Paez 

Administrative Law Judge 

13 In his deposition Addington states he currently receives federal Black Lung Benefits, 

as well as Social Security benefits. (Mot. Mem., Ex. E at 72.) 

44 FMSHRC Page 669
Distribution: (Via Electronic Mail & U.S. Mail) 

Samuel B. Petsonk, Esq., Petsonk PLLC, P.O. Box 1045, Beckley, WV 25802-1021 

(sam@petsonk.com) 

Jonathan R. Ellis, Esq., & Mark C. Dean, Esq., Steptoe & Johnson PLLC, P.O. Box 1588, 

Charleston, WV 25326-1588 

(jonathan.ellis@steptoe-johnson.com) 

(mark.dean@steptoe-johnson.com) 

44 FMSHRC Page 670
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19TH ST., SUITE 443 

DENVER, CO 80202-2500 

OFFICE: (303) 844-5266/FAX: (303) 844-5268 

November 2, 20222 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

RULON HARPER CONSTRUCTION, INC,

 Respondent. 

 CIVIL PENALTY PROCEEDING 

 Docket No. WEST 2022-0249 

 A.C. No. 42-02078-554812 

 Mine: Pit 12 

ORDER DENYING SETTLEMENT 

 

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

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. The parties 

have notified the Court that they have reached a settlement agreement in this case. Based on the 

proposed modifications and significant penalty reduction, I deny the settlement motion. The 

terms of the proposed settlement are as follows: 

Citation/ 

Order No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modification 

Docket No. WEST 2022-0249 

9727214 $ 10,868.00 $ 662.00 - Modify Type of Action from 104(d)(1) 

citation to 104(a) citation; 

- Modify gravity from “Reasonably Likely” 

to “Unlikely”; 

- Modify negligence from “High” to 

“Moderate”; and 

- Modify Significant and Substantial from 

“Yes” to “No.” 

9727216 $ 12,076.00 $ 3,274.00 - Modify Type of Action from 104(d)(1) 

order to 104(a) citation; and 

- Modify negligence from “High” to 

“Moderate.” 

TOTAL $ 22,944.00 $ 3,936.00 

Section 110(k) of the Mine Act provides that “[n]o proposed penalty which has been 

contested before the Commission under section 105(a) shall be compromised, mitigated, or settled 

except with the approval of the Commission.” 30 U.S.C. § 820(k). This provision of the Act was 

designed to shed light and scrutiny upon the dealmaking that takes place between mine operators 

44 FMSHRC Page 671
and government regulators, and to ensure that settlements further the public interest and the 

purposes of the Mine Act. See Black Beauty Coal Co., 34 FMSHRC 1856, 1860-64 (Aug. 2012). 

Commission judges review settlements to determine whether they are “fair, reasonable, 

appropriate under the facts, and protects the public interest.” Am. Coal Co., 38 FMSHRC 1972, 

1976 (Aug. 2016). To enable judges to make this determination, Commission rules require that a 

motion to approve a penalty settlement must include “facts in support of the penalty agreed to by 

the parties.” 30 C.F.R. § 2700.31(b). A judge reviews the submitted facts, the six penalty criteria 

set forth in section 110(i) of the Act, and all other relevant considerations when scrutinizing a 

settlement. See Am. Coal Co., 38 FMSHRC at 1976, 1982. 

I. The Assessed Penalty, Proposed Settlement, and Amendments 

The Respondent owns and operates a sand-and-gravel operation at Pit 12 near Salt Lake 

City, Utah. This docket includes two citations issued to the Respondent on March 29, 2022. The 

Respondent contested the citations, and the Secretary filed a petition proposing a penalty of 

$22,944.00 on July 20, 2022. See Pet. for Assess. of Civil Pen. (hereinafter “Pet.”). 

On September 23, 2022, the Secretary filed his original Motion to Approve Settlement for 

this docket. In that filing, the Secretary proposed a compromised penalty of $3,936.00, 

representing a savings for the mine operator of $19,008.00 and a penalty reduction of 82.8 

percent. The motion also proposed numerous substantive modifications to the text of the 

citations. But the facts offered in support of the proposed modifications were lacking. 

Accordingly, the Court notified the parties that their settlement could not be approved as 

submitted and gave the parties additional time to renegotiate the settlement or provide more 

supporting information. The Secretary filed an Amended Motion to Approve Settlement on 

October 3, 2022. The amended motion contains little, if any, additional information supporting 

the settlement. 

II. The Proposed Settlement is not Fair, Reasonable, Appropriate Under the Facts, 

or Protective of the Public Interest 

The Court now turns to the terms of the agreement. The terms are analyzed based on the 

facts submitted in the settlement motion as amended by the parties. Consideration is given to the 

monetary and nonmonetary terms of the settlement, and to the criteria established in section 110(i) 

of the Mine Act, such as negligence and gravity. On balance, I find that the modified penalty 

proposed by the Secretary is not fair, reasonable, appropriate under the facts, or protective of the 

public interest. I find also that the settlement motion does not adequately address the six penalty 

criteria. I therefore deny the Secretary’s motion. 

A. The Proposed Modifications to Citation No. 9727214 

Citation No. 9727214 alleges a violation of 30 C.F.R. § 56.14207 as follows: 

The Dodge Ram 1500 truck was parked on a roughly 5% grade without being 

provided with wheel chocks or any other required means to prevent uncontrolled, 

44 FMSHRC Page 672
unintended movement. Miners walked up the grade directly behind the vehicle. 

Should a miner be struck by the truck, fatal blunt force trauma would be the 

expected result. Management engaged in conduct constituting more than ordinary 

negligence in that the mine operator was aware of the truck and took no action to 

correct or mitigate the hazard. Standard 56.14207 was cited 2 times in two years at 

mine 4202078 (2 to the operator, 0 to a contractor). . . . This violation is an 

unwarrantable failure to comply with a mandatory standard. 

Pet. at 6. The cited standard requires that, “[w]hen parked on a grade, the wheels or tracks of 

mobile equipment shall be either chocked or turned into a bank.” 30 C.F.R. § 56.14207. The 

inspector found that the alleged violation was reasonably likely to result in an injury, and that the 

injury could be reasonably expected to be fatal. Pet. at 6. He marked the citation as high 

negligence and S&S. Pet. at 6. After determining that the violation was an unwarrantable failure 

to comply with a mandatory standard, the inspector issued the citation under section 104(d)(1) of 

the Mine Act. The Secretary assessed a penalty of $10,868.00. 

Now, the Secretary seeks to radically alter this citation. First, he proposes reclassification 

of this action from a section 104(d)(1) citation to a 104(a) citation. That proposed change requires 

deletion of the unwarrantable failure designation. See 30 U.S.C. § 814(d)(1). Second, he seeks to 

change the likelihood of injury from “Reasonably Likely” to “Unlikely.” Third, he proposes a 

reduction in the negligence finding from “High” to “Moderate.” And finally, he seeks to remove 

the S&S designation. Altogether, these changes would reduce the penalty from $10,868.00 to 

$662.00. 

The Secretary offers very few facts in support of these major changes. He states in his 

motion that the pickup truck in question was “outfitted with an automatic transmission which was 

observed in the ‘park’ position” and that the “parking brake was set.” Am. Mot. to App. 

Settlement at 3. He also notes that his “review of the information provided by the operator 

supports that there was no one in mine management aware of any hazards on the pickup truck.”1

Am. Mot. to App. Settlement at 3. 

The violation alleged here is serious, despite the Secretary’s attempts to downplay it. Just 

one month before the Secretary filed his original motion in this case, a miner was killed by parked 

mobile equipment that had not been secured against accidental movement.2 Another miner was 

1

 Any other information adduced by the Secretary regarding this citation was either 

redundant or mere conclusion. Often, when a motion to approve settlement is filed by an MSHA 

conference and litigation representative (CLR), the motion relies heavily on legal conclusions 

that are either improperly applied or inadequately supported. The standard boilerplate language 

used by every CLR contains legal information that they are not sufficiently trained to understand 

or qualified to use in a legal document. Moreover, the Commission requires the Secretary to 

provide “facts,” not conclusions, in support of settlement. 30 C.F.R. § 2700.31(b). 

2

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, FATALITY ALERT:

AUGUST 4, 2022 FATALITY, https://www.msha.gov/data-reports/fatality-reports/2022/august-4-

2022-fatality/fatality-alert. 

44 FMSHRC Page 673
killed earlier this year when a dump truck—unsecured against accidental motion—crushed a 

miner attempting to troubleshoot a brake issue.3

 Last year, at least three such fatal accidents 

occurred. One miner was pinned by his parked truck while helping a second miner repair a truck 

parked immediately in front of his own.4 Another miner died when his haul truck, parked on a 

grade without wheel chocks, rolled downhill and crushed him.5 A third miner with ten years of 

experience died while performing a pre-operational examination on a truck with unchocked 

wheels.6

 MSHA’s root-cause analysis found that the death was caused by the contractor’s failure 

to ensure that all truck wheels were properly blocked when parked on a grade. In 2020, a truck 

ran over a miner who had attempted to adjust its brakes without blocking it against motion.7 In 

2018, a miner with eight years of experience was killed by mobile equipment that was not 

properly secured against movement while parked.8 In 2017, a parked pickup truck pinned a miner 

against a wall and killed him, in part because the wheels were not chocked.9

 

Miners are killed year after year in these accidents—accidents that are completely 

avoidable if operators were to follow the regulations with diligence and care. That is why the 

3 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, FATALITY ALERT:

JANUARY 26, 2022 FATALITY, https://www.msha.gov/data-reports/fatality-reports/2022/january26-2022-fatality/fatality-alert. 

4

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, DECEMBER 13, 2021

FATALITY – PRELIMINARY REPORT, https://www.msha.gov/data-reports/fatalityreports/2021/december-13-2021-fatality/preliminary-report-0. 

5

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF 

INVESTIGATION: SURFACE (CONSTRUCTION SAND AND GRAVEL) FATAL POWER HAULAGE 

ACCIDENT – APRIL 19, 2021, https://www.msha.gov/data-reports/fatality-reports/2021/april-19-

2021-fatality/final-report. 

6

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF 

INVESTIGATION: FACILITY (COAL) FATAL POWER HAULAGE ACCIDENT – AUGUST 11, 2021,

https://www.msha.gov/data-reports/fatality-reports/2021/august-11-2021-fatality/final-report. 

7

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF 

INVESTIGATION: SURFACE MINE (SAND) FATAL POWER HAULAGE ACCIDENT – SEPTEMBER 16,

2020, https://www.msha.gov/data-reports/fatality-reports/2020/september-16-2020-fatality/finalreport. 

8 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF 

INVESTIGATION: UNDERGROUND METAL MINE (GOLD ORE) FATAL POWER HAULAGE ACCIDENT –

NOVEMBER 11, 2018, https://www.msha.gov/data-reports/fatality-reports/2018/fatality-16-

november-11-2018/final-report. 

9

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF 

INVESTIGATION: SURFACE NONMETAL MINE (CRUSHED STONE) FATAL POWER HAULAGE 

ACCIDENT – MARCH 24, 2017, https://www.msha.gov/data-reports/fatality-reports/2017/fatality3-march-24-2017/final-report. 

44 FMSHRC Page 674
inspector’s original finding of S&S is well founded: the violation alleged here is serious, and mine 

operators need to take them seriously or else miners will continue to die. 

The Secretary now seeks to remove the S&S designation. I cannot accept this proposed 

modification based on the two sentences that he offers in support of the change. The Secretary 

points to other required safety features, like the parking brake, to show that the alleged violation 

is not significant or substantial. However, I am precluded from considering redundant safety 

measures as part of S&S analysis. See Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 

1028-29 (D.C. Cir. 2013). The relevant inquiry here is the magnitude of risk presented by the 

operator’s failure to chock the wheels of a truck parked on a grade. Given the number of serious 

accidents caused by this condition, I find that the inspector has set forth no basis for S&S and that 

the Secretary’s facts cannot support deletion of the S&S designation. Accepting the facts, even if 

true, stand in opposition to the current case law regarding S&S. I cannot accept a settlement that 

is contrary to law. 

As additional support for the S&S changes, the Secretary insists that he has “discretion to 

modify the significant and substantial designation” based on two Commission cases: American 

Aggregates of Michigan, Inc., 42 FMSHRC 570, 576-79 (Aug. 2020), and Mechanicsville 

Concrete, Inc., 18 FMSHRC 877, 879-80 (June 1996). Am. Mot. to App. Settlement at 4. But the 

Secretary’s reliance on these cases is misplaced. The Commission in Mechanicsville held that an 

ALJ may not add an S&S designation on her own initiative, and the Commissioners merely 

reiterated this holding in American Aggregates. By contrast, the present case involves the 

Secretary’s proposal to remove an S&S designation. The case citations of the CLR are irrelevant 

here. It appears they were drafted by an attorney and are used in every settlement agreement by a 

CLR who is not qualified to cite to legal authority. I find that the Secretary’s claim of discretion 

regarding S&S is erroneous, and that his decision to remove the S&S designation wrongfully 

dispenses with decades of history and precedent. 

I further find that the submitted facts cannot support the negligence changes. The 

Secretary attests that a “review of the information provided by the operator supports that there 

was no one in mine management aware of any hazards on the pickup truck.” Am. Mot. to App. 

Settlement at 3. This statement raises several concerns. It does not specify the basis of the 

“information provided by the operator” or whether it is credible. Id. It does not mesh with the 

inspector’s account, which noted that management “was aware” of the violative condition. Pet. at 

6. And it does not even say explicitly that management lacked knowledge of the unchocked 

wheels—only that management was unaware of any conditions that it deemed a “hazard.” Am. 

Mot. to App. Settlement at 3. 

Moreover, even if management lacked actual knowledge of the unchocked wheels, this 

fact would still not negate negligence. The Secretary defines negligence as when “[t]he operator 

knew or should have known of the violative condition.” 30 C.F.R. § 100.3 (emphasis added). The 

Commission looks to “the operator’s actual or constructive knowledge of the violative condition 

or practice” to determine its negligence. Knight Hawk Coal, LLC, 38 FMSHRC 2361, 2369 (Sept. 

2016) (emphasis added). The record indicates that management should have known of the 

condition since miners routinely “walked up the grade directly behind the vehicle.” Pet. at 6. The 

Commission also looks to the operator’s “supervision, training, and disciplining of its employees 

44 FMSHRC Page 675
to determine if [it] has taken reasonable steps necessary to prevent the rank-and-file miner’s 

violative conduct.” Knight Hawk, 38 FMSHRC at 2369. Here, the Secretary has submitted no 

facts regarding the operator’s supervision or training practices. Accordingly, the facts do not 

mitigate the operator’s negligence as alleged in the petition. 

Finally, and most importantly, I must deny the proposed penalty reduction associated with 

this citation. The threadbare information submitted cannot support such a drastically 

compromised penalty. For further discussion of the penalty, see infra, Section II.C. 

B. The Proposed Modifications to Order No. 9727216 

Order No. 9727216 alleges a violation of 30 C.F.R. § 56.18002(a) as follows: 

The mine operator failed to ensure that an adequate examination of working places 

was being conducted prior to miners working around the crusher and wash plant 

areas. During this inspection 20 violative conditions were noted and cited. The 

workplace examination record noted 0 safety concerns. Some of the conditions 

cited were extensive and obvious and had been in existence for days or weeks. The 

failure to identify and correct hazards is known to contribute to fatal accidents 

across the mining industry. Mine management engaged in conduct constituting 

more than ordinary negligence in that they did not complete the required 

examinations and allowed hazards to exist with no mitigation. . . . This violation is 

an unwarrantable failure to comply with a mandatory standard. 

Pet. at 7. The inspector found that the operator’s failure to conduct an adequate exam was 

reasonably likely to result in an injury that could reasonably be expected to be fatal. He marked 

the order as S&S and high negligence. After determining that the violation was an unwarrantable 

failure to comply with a mandatory safety standard, the inspector issued the order under section 

104(d)(1) of the Mine Act. He withdrew the crusher and the wash plant from operation until the 

mine operator terminated the order by training a designee to conduct a thorough workplace 

examination. 

Section 56.18002(a) requires that “a competent person designated by the operator shall 

examine each working place at least once each shift before miners begin work in that place, for 

conditions that may adversely affect safety or health.” 30 C.F.R. § 56.18002(a). Merely performing 

an examination is not enough to satisfy the standard—the operator must perform an adequate

examination. Under Commission case law, a workplace examination “must be adequate in the 

sense that it identifies conditions which may adversely affect safety and health that a reasonably 

prudent competent examiner would recognize.” Sunbelt Rentals, Inc., 38 FMSHRC 1619, 1627 

(July 2016). 

The first fact put forward by the Secretary—that a “workplace examination had been 

conducted and documented”—is therefore hollow. See Am. Mot. to App. Settlement at 3. This fact 

does not negate the fact of violation, the negligence finding, or the unwarrantable failure 

designation. The workplace examination has to be meaningful to satisfy the safety standard; 

haphazard inspections do not protect miners. For instance, in Sunbelt Rentals, the operator 

44 FMSHRC Page 676
performed and recorded a workplace examination. The exam failed to identify the loose material 

that would later strike a miner and knock him unconscious. 38 FMSHRC at 1627; Sunbelt Rentals, 

Inc., 40 FMSHRC 573, 583-90 (Apr. 2018) (ALJ). The operator did not protect the miner with its 

inadequate examination and could not avoid liability under section 56.18002(a). 

Here, the record supports a finding that the examination was inadequate. The inspector 

noted twenty violative conditions. Some of the violations were “extensive and obvious,” and some 

had been in existence for “days or weeks.” Pet. at 7. Meanwhile, the operator’s workplace exam 

noted none of these issues. 

The inspector’s report tends to contradict the second and final fact offered by the Secretary 

in support of settlement: that “there was no evidence that the examination was inadequate.” 10

Failure to identify and address safety violations can be evidence of an inadequate examination. 

LRock Industries, 39 FMSHRC 1429 (July 2017) (ALJ); APAC-Kansas, Inc., 38 FMSHRC 2560 

(Oct. 2016) (ALJ). The inspector documented the operator’s failure to identify twenty violations 

despite the extensiveness and duration of the violative conditions. Accordingly, there is evidence 

that the examination was inadequate. 

I cannot say how the Secretary has now concluded that “no evidence” exists in the face of 

the inspector’s report. He provides no further context or explanation for his conclusion, even when 

asked to supplement his original filing on this precise issue. Instead, he wants me to ignore the 

evidence of an inadequate examination and to accept his current version of events without further 

facts or scrutiny. To accept the Secretary’s facts uncritically would be a derogation of my statutory 

duty under section 110(k) of the Mine Act. 

By attempting to make such a drastic change with such weak and inconsistent facts, the 

Secretary again conveys that he does not take this violation seriously. But this is a serious offense. 

Miners continue to suffer injuries, fatal and otherwise, due to inadequate workplace examinations. 

Just days before the Secretary filed his motion in this case, he released a fatality alert indicating 

that a miner died due in part to the failure to conduct an adequate workplace examination.11

Accordingly, I take the allegations in this case seriously and would require concrete and specific 

facts to justify the dramatic changes proposed. The Secretary’s motion is devoid of such facts. I 

therefore must deny the proposed changes as unreasonable and inappropriate under the facts. 

C. The Proposed Penalty Reduction 

The other major defect in the present motion is the penalty reduction. The Secretary 

proposes a drastic penalty reduction from the assessed penalty of $22,944.00 to the compromised 

10 Any other information adduced in support of the proposed modifications was 

nonfactual and conclusory in nature. 

11 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, FATALITY ALERT:

SEPTEMBER 9, 2022 FATALITY https://www.msha.gov/data-reports/fatalityreports/2022/september-9-2022-fatality/fatality-alert. 

44 FMSHRC Page 677
value of $3,936.00. Based on the reasoning below, I find that the proposed penalty reduction is 

unfair and contrary to the public interest. 

Before passage of the Mine Act, mine operators were governed by the Coal Act and its 

regulations. Operators and regulators negotiated settlements that never saw public scrutiny, and 

negotiations often led to large penalty reductions for operators. Senator Richard Schweiker (RPennsylvania) described the dysfunction: 

[Mine operators] get slapped [with] a fine of $100 or $200 or $300. They 

accumulate a whole lot of them and go back in court and ultimately settle them at 

10 or 20 cents on the dollar... So what you actually assess them at and what they 

settle for are worlds apart and is part of the frustration of dealing with the act. 

123 Cong. Rec. S10,277, reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 1072-73 (1978) (“Legis. 

Hist.”). This system failed to deter hazardous workplace conduct, and devastating mine accidents 

continued to occur. Members of Congress knew that paltry settlement amounts would not be 

sufficient incentive for mine operators to adopt safe and compliant practices. As Senator Wendell 

Ford (D-Kentucky) said: 

The settlement of penalty assessments in the past, often for as little as 30 cents on 

the dollar, has been a disgrace, as well as a serious obstacle to effective use of the 

civil penalty mechanism to encourage compliance. 

123 Cong. Rec. S10,209, reprinted in Legis. Hist., at 922. There was bipartisan consensus that 

compromised settlements had become an impediment to ensuring miner safety. 

Congress decided to reshape the settlement regime with the Mine Act. Congress identified 

the compromise of assessed penalties in settlement as a problem with prior legislation, and it 

crafted section 110(k) of the Mine Act as a solution. By subjecting settlements to judicial review, 

Congress intended to avoid “the unwarranted lowering of penalties as a result of off-the-record 

negotiations” and to ensure that “the public interest is adequately protected before approval of 

any reduction in penalties.” S. Rep. No. 95-181, at 45 (1977), reprinted in Legis. Hist., at 633. 

It is therefore my duty to review compromised penalties. Motions proposing large penalty 

reductions—where the operator would pay only “10 or 20” or “30 cents on the dollar”—demand 

particular attention because they are the very settlements that Congress saw as an obstacle to 

regulatory compliance. 123 Cong. Rec. S10,277, S10,209, reprinted in Legis. Hist., at 1072-73, 

922. The parties must present concrete facts, review the six penalty criteria, and demonstrate how 

the proposed settlement will be fair and protective of the public interest. 

Here, the public interest is not adequately protected. Encouraging compliance with safety 

regulations was a key public interest motivating Congress to pass the Mine Act, and it has been a 

key public interest considered by the Commission when scrutinizing settlements. Black Beauty, 

34 FMSHRC at 1866. I fail to see how this settlement could promote compliance. Instead, by 

allowing the operator to pay just seventeen cents on the dollar for these two serious alleged 

44 FMSHRC Page 678
violations, the Secretary encourages the operator to embrace the status quo and accept the minor 

settlement amounts as the cost of doing business. The Secretary has not submitted any information 

to dissuade me of this thinking, or to show that a reduced penalty furthers the public interest. 

Accordingly, I find that the large penalty reduction undermines operator compliance, fails to deter 

dangerous behavior, and therefore contravenes the public interest. 

D. Non-monetary aspects of the settlement 

I have also considered the non-monetary aspects of this settlement motion. Just as in all 

other settlement motions, the Secretary includes the rote recitation that he “has evaluated the 

enforcement value of the compromise and is maximizing his prosecutorial impact in settling this 

case on appropriate terms.” Am. Mot. to App. Settlement at 2. He says that resolution of this case 

through settlement is of “significant enforcement value to the Secretary” in part because the 

citations, as modified, are “preserved for future enforcement actions and are not subject to 

potential vacatur or further downward adjustment after a hearing.” Am. Mot. to App. Settlement 

at 2-3. 

I accord significant weight to the value of avoiding litigation and its attendant uncertainty. 

However, the Secretary’s boilerplate statements do little more to help me understand how this 

particular settlement meets the AmCoal standard. Stripping citations of their S&S and 

unwarrantable failure designations also impacts future enforcement actions, but the Secretary 

provides no explanation of these specific changes and how they maximize prosecutorial impact. 

Furthermore, “[t]he Commission recognized that significant non-monetary value flows 

from accepting the citations as written.” Solar Sources Mining, 41 FMSHRC 594, 601 (Sept. 2019) 

(internal citations omitted). Here, the Secretary has elected to modify both of the citations in this 

docket and forfeit the non-monetary value that would flow from preserving them as written. 

Altogether, although there are some non-monetary benefits to this settlement, none of the 

Secretary’s generalized statements convince me that the particular changes proposed here are “fair, 

reasonable, appropriate under the facts, and protect[] the public interest.” Am. Coal Co., 38 

FMSHRC at 1976. 

III. Conclusion 

This case boils down to facts. The Secretary must submit facts in support of the proposed 

settlement, and I must scrutinize those facts. Here, the Secretary has submitted a grand total of 

three relevant sentences to support the 82.8 percent penalty reduction proposed. Most of the 

information submitted is conclusory and redundant. Few of the facts are concrete or specific. He 

does nothing to explain why the submitted facts differ from the inspector’s report. He fails to tailor 

the facts to the penalty criteria or the modified portions of the citations. He ignores the seriousness 

of the alleged violations. And, when asked for more information, he rebuffs the Court and merely 

rearranges the information already encapsulated in the original motion. 

It is my statutory duty to review the sufficiency of the Secretary’s facts. If I were to approve 

this proposed settlement based on the submitted facts, the judicial review provision in section 

44 FMSHRC Page 679
110(k) of the Mine Act would be rendered meaningless. I cannot close my eyes to the deficiencies 

of the facts submitted here, nor to the risk presented to miners by the violations alleged in this case. 

I must deny this motion. 

WHEREFORE, the Amended Motion to Approve Settlement is hereby DENIED. 

 /s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (Electronic and Certified Mail) 

Bruce H. Jakubauskas, CLR, U.S. Department of Labor, MSHA, Thornhill Industrial Park, 178 

Thorn Hill Road, Suite 100, Warrendale, PA 15086, jakubauskas.bruce@dol.gov 

Dennis Sorter, Harper Companies, P. O. Box 18549, Salt Lake City, Utah 84118, 

dsortor@harpercompaniesinc.com 

44 FMSHRC Page 680
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19TH ST., SUITE 443 

DENVER, CO 80202-2500 

OFFICE: (303) 844-5266/FAX: (303) 844-5268 

November 02, 2022 

ORDER DENYING SETTLEMENT 

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

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. The parties 

have notified the Court that they have reached a settlement agreement in this case. Based on the 

proposed modifications and significant penalty reduction, I deny the settlement motion. The terms 

of the proposed settlement are as follows: 

Citation/ 

Order No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modification 

Docket No. WEST 2022-0250 

9479096 $ 3,274.00 $ 662.00 Modify gravity from “Reasonably Likely” to 

“Unlikely” and modify Significant and 

Substantial from “Yes” to “No.” 

9479097 $ 3,274.00 $ 3,274.00 No change. 

9479098 $ 296.00 $ 296.00 No change. 

9727204 $ 3,274.00 $ 199.00 Modify gravity from “Reasonably Likely” and 

“Fatal” to “Unlikely” and “Lost Workdays or 

Restricted Duty,” and modify Significant and 

Substantial from “Yes” to “No.” 

9727205 $ 3,274.00 $ 662.00 Modify gravity from “Reasonably Likely” to 

“Unlikely” and modify Significant and 

Substantial from “Yes” to “No.” 

9727208 $ 3,274.00 $ 1,472.00 Modify gravity from “Fatal” to “Permanently 

Disabling.” 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

RULON HARPER CONSTRUCTION, 

INC,

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. WEST 2022-0250 

A.C. No. 42-02078-554812

Mine: Pit 12 

44 FMSHRC Page 681
9727211 $ 3,274.00 $ 0.00 Vacate. 

9727212 $ 2,194.00 $ 662.00 Modify gravity from “Fatal” to “Lost 

Workdays or Restricted Duty.” 

TOTAL $ 22,134.00 $ 7,227.00 

Section 110(k) of the Mine Act provides that “[n]o proposed penalty which has been 

contested before the Commission under section 105(a) shall be compromised, mitigated, or settled 

except with the approval of the Commission.” 30 U.S.C. § 820(k). This provision of the Act was 

designed to shed light and scrutiny upon the dealmaking that takes place between mine operators 

and government regulators, and to ensure that settlements further the public interest and the 

purposes of the Mine Act. See Black Beauty Coal Co., 34 FMSHRC 1856, 1860-64 (Aug. 2012). 

Commission judges review settlements to determine whether they are “fair, reasonable, 

appropriate under the facts, and protects the public interest.” Am. Coal Co., 38 FMSHRC 1972, 

1976 (Aug. 2016). To enable judges to make this determination, Commission rules require that a 

motion to approve a penalty settlement must include “facts in support of the penalty agreed to by 

the parties.” 30 C.F.R. § 2700.31(b). A judge reviews the submitted facts, the six penalty criteria 

set forth in section 110(i) of the Act, and all other relevant considerations when scrutinizing a 

settlement. See Am. Coal Co., 38 FMSHRC at 1976, 1982. 

I. The Assessed Penalty, Proposed Settlement, and Amendments 

The Respondent owns and operates a sand-and-gravel operation at Pit 12 near Salt Lake 

City, Utah. This docket includes eight citations issued to the Respondent on March 28, 2022. The 

Respondent contested the citations, and the Secretary filed a petition proposing a penalty of 

$22,944.00 on July 20, 2022. See Pet. for Assess. of Civil Pen. (hereinafter “Pet.”). 

On September 23, 2022, the Secretary filed his original Motion to Approve Settlement for 

this docket. In that filing, the Secretary proposed a compromised penalty of $7,227.00, 

representing a savings of nearly $15,000.00 for the mine operator and a total penalty 

reduction of 67.3 percent. The motion also proposed numerous substantive modifications to the 

text of the citations. The few facts offered in support of the proposed modifications were 

unconvincing, and I found that they were insufficient to sustain the changes proposed. 

Accordingly, the Court notified the parties that their settlement could not be approved as 

submitted and gave the parties additional time to renegotiate their agreement or provide more 

information. The Secretary filed an Amended Motion to Approve Settlement on October 3, 2022. 

The amended motion contains little, if any, additional information supporting the settlement. 

II. The Proposed Settlement is not Fair, Reasonable, Appropriate Under the Facts, 

or Protective of the Public Interest 

The Court now turns to the terms of the agreement. The terms are analyzed based on the 

facts submitted in the settlement motion as amended by the parties. Consideration is given to the 

monetary and nonmonetary terms of the settlement, and to the criteria established in section 110(i) 

44 FMSHRC Page 682
of the Mine Act, such as negligence and gravity. On balance, I find that the modified penalty 

proposed by the Secretary is not fair, reasonable, appropriate under the facts, or protective of the 

public interest. I find also that the settlement motion does not adequately address the six penalty 

criteria. I therefore deny the Secretary’s motion. 

A. The Proposed Modifications to the Berm Citations 

During his inspection on March 28, 2022, the mine inspector cited the Respondent for at 

least four separate violations of section 56.9300(a), which requires 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.” 30 C.F.R. § 

56.9300(a). 

Citation No. 9479096 alleges a violation as follows: 

The berms on the elevated feed ramp for the crusher were not maintained. The south 

berm was in a marginal condition but the north berm was almost entirely gone. The 

ramp was about 100’ long and a FEL over traveling the north edge would encounter 

a drop off of about 6 feet. Miners over traveling the edge would be exposed to fatal 

blunt force trauma. 

Pet. at 6. The inspector determined that the violative condition was reasonably likely to cause an 

injury, and that the resultant injury could reasonably be expected to be fatal. He marked the 

citation as moderate negligence and as S&S. The Secretary assessed a penalty of $3,274.00. 

Citation No. 9727204 alleges a violation as follows: 

The elevated roadway adjacent to the hole dug by the discharge conveyor on the 

wash plant was not provided with a berm to prevent equipment from over traveling 

the edge. The hole is about four feet deep and has a soft perimeter edge. This area 

is used by the skidsteer and the service truck was parked within a few feet of the 

edge. Should a vehicle (particularly the skidsteer) over travel this edge and 

overturn, fatal crushing/blunt force trauma would be the expected result. 

Pet. at 12. The mine inspector found that the lack of a berm was reasonably likely to cause injury, 

and that the injury could reasonably be expected to be fatal. He determined that the violation was 

S&S and resulted from moderate negligence. The penalty was assessed at $3,274.00. 

Citation No. 9727208 alleges a violation as follows: 

The elevated roadway being used for the FEL to access the wash plant feed pile 

was not provided with berms on both sides of the ramp. The approx. 50’ long by 6’ 

high ramp had no berm whatsoever on the south side. There were vehicle tracks 

trailing off the side of the ramp, indicating that in addition to the FEL, this ramp 

was used by smaller vehicles. Should a vehicle over travel the edge, fatal blunt 

force trauma would be the expected injury. 

44 FMSHRC Page 683
Pet. at 16. The inspector found that the condition was reasonably likely to cause injury, and that 

the resulting injury could reasonably be expected to be fatal. He designated the citation as S&S 

and as moderate negligence. The Secretary assessed a penalty of $3,274.00. 

Finally, Citation No. 9727211 alleges a violation as follows: 

The settling ponds were not provided with berms to protect the equipment accessing 

the surrounding areas from over traveling the edges and falling into the water. There 

was tracks crossing a material bridge across the pond and the edges of the roadway 

had begun to fail. Should a miner over travel the edge, fatal drowning would be the 

expected result. 

Pet. at 18. The mine inspector determined that the lack of a berm was reasonably likely to cause 

an injury that could reasonably be expected to be fatal. He marked the citation as S&S and as 

moderate negligence. The Secretary assessed a $3,274.00 penalty for this citation. 

The violations alleged here are serious. Accidents involving mobile equipment and 

powered haulage account for the greatest proportion of fatalities in mines.1

 Many of these 

accidents are caused by the lack of properly maintained berms. In 2021, at least two miners died 

as a result of inadequate berms. A miner with 43 years of mine experience was killed while 

tramming an excavator along an elevated roadway that abutted a dredge pond.2 Because the mine 

operator did not provide berms or guardrails on the edge of the roadway, and the excavator rolled 

over into the pond and the miner sustained fatal injuries. A second miner died when his haul truck 

overturned at the edge of a dumpsite that featured a deficient berm of inadequate height, width, 

thickness, and firmness.3

 In 2019, a 22-year-old electrician was killed while working in a trench 

when a front-end loader toppled over the unguarded edge of the trench and crushed him.4 In 2017, 

1

MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, CY 2021 MSHA

FATALITIES, 

https://www.msha.gov/sites/default/files/events/2021%20MSHA%20Fatalities%206-9-21.pdf. 

2

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF 

INVESTIGATION: SURFACE (SAND AND GRAVEL) FATAL MACHINERY ACCIDENT – MARCH 5, 2021,

https://www.msha.gov/data-reports/fatality-reports/2021/march-5-2021-fatality/final-report. 

3

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF 

INVESTIGATION: SURFACE (CONSTRUCTION SAND AND GRAVEL) POWERED HAULAGE ACCIDENT –

JANUARY 19, 2021, https://www.msha.gov/data-reports/fatality-reports/2021/january-19-2021-

fatality/final-report. 

4

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF 

INVESTIGATION: SURFACE NONMETAL MINE (CRUSHED LIMESTONE) FATAL POWERED HAULAGE 

ACCIDENT – JUNE 10, 2019, https://www.msha.gov/data-reports/fatality-reports/2019/june-10-

2019-fatality/final-report. 

44 FMSHRC Page 684
another fatal accident occurred when a haul truck overturned at a dumpsite that lacked proper 

berms and barriers.5

 In 2015, a miner sustained fatal injuries when his haul truck went over the 

edge of a bermless road and rolled over into a slough pond.6 In 2013, a miner with 25 years of 

experience fell 80 feet to his death when his truck traveled through a hole in the berm and over 

the edge of a highwall.7 In 2012, an experienced miner with almost five decades in the industry 

drowned when the skid steer he was operating traveled over a drop-off and into a water hole.8

Mine management in that case failed to provide berms in the work area. 

Year after year, miners die because operators fail to install and maintain proper barriers. 

The severity of these accidents could be minimized if operators were to follow the regulations 

with diligence and care. But operators take their cue from the Secretary, and—time and time 

again—the Secretary has agreed to settle berm violations like those before me today for mere 

cents on the dollar. 

Once again here, the Secretary sends the message that these violations are not serious. He 

agrees to vacate one citation, remove the S&S from two others, alter the gravity findings, and 

reduce the penalties for the four berm violations by 82 percent. It is clear that the MSHA 

conference and litigation representative (CLR) is not familiar with the current case law describing 

S&S and has failed to apply the proper legal analysis in this case. I cannot approve a settlement 

that is contrary to the law. 

 

5

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF 

INVESTIGATION: SURFACE NON METAL MINE (LIMESTONE) POWERED HAULAGE ACCIDENT –

JUNE 8, 2017, https://www.msha.gov/data-reports/fatality-reports/2017/fatality-4-june-08-

2017/final-report. 

6

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF 

INVESTIGATION: SURFACE NONMETAL MINE (SAND AND GRAVEL) FATAL POWERED HAULAGE 

ACCIDENT – MARCH 17, 2015, https://www.msha.gov/data-reports/fatality-reports/2015/fatality5-march-17-2015/final-report. 

7

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF INVESTIGATION:

SURFACE NONMETAL MINE (CRUSHED AND BROKEN LIMESTONE) FATAL POWERED HAULAGE 

ACCIDENT – SEPTEMBER 16, 2013, https://www.msha.gov/data-reports/fatalityreports/2013/fatality-11-september-16-2013/final-report. 

8

 MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF 

INVESTIGATION: SURFACE NONMETAL MINE (CEMENT) FATAL POWERED HAULAGE ACCIDENT –

JANUARY 27, 2012, https://www.msha.gov/data-reports/fatality-reports/2012/fatality-1-january27-2012/final-report. 

44 FMSHRC Page 685
The Secretary is careless in his attempt to justify the proposed changes. As support for the 

modifications to the four berm citations, the Secretary offers just five sentences of “facts.”9

 Much 

of the submitted information is irrelevant, uninformative, or unconvincing. For Citation No. 

9479096, he says that “feed ramp was straight, visibility was good, and a partial berm was in 

place” which “would have alerted the loader operator that they were close to the edge of the 

ramp.” Am. Mot. to App. Settlement at 3. For Citation No. 9727204, he submits that the “skidsteer in the area was equipped with rollover protection and a seatbelt.” He further states that “the 

alleged drop off was 4 [feet]” and that “[v]ehicles in the area stop at this location and do not 

continue to travel farther.” Am. Mot. to App. Settlement at 4. For Citation No. 9727208, the 

Secretary justifies the proposed changes by saying that the “front-end loader was outfitted with 

an enclosed cab with roll over protection and a seatbelt, and the highest overtravel hazard was 6 

[feet] above soft earthen material.” Am. Mot. to App. Settlement at 4. 

These facts cannot support the proposed S&S changes. The Secretary submits that 

“visibility was good,” but the S&S analysis is conducted in the continued course of normal mining 

operations, and visibility conditions could worsen. See U.S. Steel Mining Co., 7 FMSHRC 1125, 

1130 (Aug. 1985). He notes that “a partial berm was in place,” but a so-called partial berm 

described by an inspector as “almost entirely gone” does little to prevent accidents; it also does 

little to satisfy a standard requiring not just that berms exist, but also that they be maintained. The 

seatbelts and rollover protection on the mobile equipment are redundant safety features that 

cannot be considered as part of S&S analysis. See Cumberland Coal Res., LP v. FMSHRC, 717 

F.3d 1020, 1028-29 (D.C. Cir. 2013). 

Meanwhile, the inspector set forth a strong basis for the S&S designations. For Citation 

No. 9479096, a 100-foot elevated ramp with a 6-foot drop-off was left with an unmaintained and 

almost nonexistent berm. For Citation No. 9727204, the operator failed to place a berm on an 

elevated roadway abutting a 4-foot-deep hole with a soft perimeter. Large mobile equipment was 

parked within feet of the edge. Both alleged violations would be reasonably likely to cause a 

hazard that could injure a miner. The 4-foot and 6-foot drop-offs suggest that an injury could be 

reasonably serious, given the heavy equipment that was used on these roads. In my estimation, 

the Secretary has not presented any concrete information that would mitigate the inspector’s wellfounded S&S determination. 

As additional support for the S&S changes, the Secretary insists that he has “discretion to 

modify the significant and substantial designation” based on two Commission cases: American 

Aggregates of Michigan, Inc., 42 FMSHRC 570, 576-79 (Aug. 2020), and Mechanicsville 

Concrete, Inc., 18 FMSHRC 877, 879-80 (June 1996). Am. Mot. to App. Settlement at 5. But the 

Secretary’s reliance on these cases is misplaced. The Commission in Mechanicsville held that an 

9

 The Secretary has not submitted any facts in support of the vacatur of Citation No. 

9727211. I accept the Secretary’s decision to vacate this citation, since he is owed some 

discretion in his enforcement decisions. I note, however, that this discretion should not be 

plenary, especially when vacatur occurs as part of a larger settlement. Experience reveals that the 

Secretary often vacates citations as part of the quid pro quo of settlement, and this dealmaking 

should be subject to judicial review pursuant to section 110(k) of the Mine Act under an “abuse 

of discretion” standard. 

44 FMSHRC Page 686
ALJ may not add an S&S designation on her own initiative, and the Commissioners merely 

reiterated this holding in American Aggregates. By contrast, the present case involves the 

Secretary’s proposal to remove an S&S designation. 

These improper and irrelevant case citations misstate the law, and yet they are included in 

every settlement document filed by a CLR. A CLR is not qualified to analyze or interpret case law. 

By attempting to do so here, the CLR has proposed a settlement that ignores the meaning of S&S 

as articulated in Newtown Energy, 38 FMSHRC 2033 (Aug. 2016), and its progeny. The present 

settlement fails to set forth the correct case law and, moreover, fails to provide facts demonstrating 

that the parties understand the legal requirements and have met those requirements. I cannot 

approve such a settlement. In sum, I find that the Secretary’s claim of discretion regarding S&S is 

erroneous, and that his decision to remove the S&S designation wrongfully dispenses with decades 

of history and precedent. 

I further find that the penalty reductions associated with Citations Nos. 9479096, 9727204, 

and 9727208 are inappropriate. The proposed penalties do not reflect the seriousness of the alleged 

violations and do not adequately deter future violative conduct. Even if the gravity changes are 

proper, I do not have to accept the proposed penalties and I am not bound by the Secretary’s Part 

100 determinations. For further discussion of the penalty, see infra, Section II.C. 

Accordingly, I find that the S&S modifications for Citations Nos. 9479096 and 9727204 

are unreasonable and inappropriate under the facts. Similarly, I take issue with the proposed 

penalties for Citations Nos. 9479096, 9727204, and 9727208 on the same basis. These proposed 

modifications are therefore denied. 

B. The Proposed Modifications to Citation No. 9727205 

Citation No. 9727205 alleges a violation of 30 C.F.R. § 56.14101(a)(2) as follows: 

The park brake on the GMC Service truck failed to hold with its typical load on the 

maximum grade it travels. The test area was an access road to the pit and was 

selected by the mine. The truck rolled immediately and rapidly when the park brake 

was tested, it stopped rolling when the service brake was reapplied. This truck is 

used as needed around the mine site and with miners accessing the back of the truck 

as a work platform in addition to using the truck to haul maintenance supplies. 

There is a vice mounted on the back of the truck. Should a miner be struck by the 

truck due to a non-functional park brake, fatal crushing blunt force trauma would 

be the expected result. Standard 56.14101(a)(2) was cited 3 times in two years at 

mine 4202078 (3 to the operator, 0 to a contractor). 

Pet. at 14. The cited standard requires that, “[i]f equipped on self-propelled mobile equipment, 

parking brakes shall be capable of holding the equipment with its typical load on the maximum 

grade it travels.” 30 C.F.R. § 56.14101(a)(2). The inspector determined that the alleged violation 

was reasonably likely to cause an injury, and that the resulting injury could reasonably be 

expected to be fatal. He marked the citation as S&S and as moderate negligence. The Secretary 

assessed a civil penalty of $3,274.00 for this citation. 

44 FMSHRC Page 687
Again here, the Secretary proposes major changes. He seeks to modify the likelihood of 

injury from “Reasonably Likely” to “Unlikely,” to delete the S&S designation, and to reduce the 

penalty down to $662.00. In support of these changes, the Secretary says that “[t]here is no 

evidence that the truck is used while on grades, and the work areas around the plant are level. The 

service truck is used for maintenance, travels and parks on level ground, and is not reasonably 

likely to cause serious injury.” Am. Mot. to App. Settlement at 4. 

These facts do not mitigate the original S&S finding. Despite the Secretary’s claim that 

work areas at the mine are level, the mine access road selected by the operator itself for the test 

was on a grade. It is disingenuous to say that the truck was tested on a graded access road and 

also that no grades exist at the mine. The Secretary does not explain or account for the discrepancy 

between his facts and the inspector’s findings, and I have trouble accepting the Secretary’s facts 

in the absence of any explanation. This type of violation must be treated as serious. Unfortunately, 

braking system defects continue to result in fatal accidents in the mining industry.10 Therefore, 

without a more convincing explanation, I must deny the proposed S&S changes as unreasonable 

and inappropriate under the facts. 

C. The Proposed Penalty Reduction

The other major issue in the present motion is the penalty reduction. The Secretary 

proposes a drastic penalty reduction from the assessed penalty of $22,134.00 to the compromised 

value of $7,227.00. Based on the reasoning below, I find that the proposed penalty reduction is 

unfair and contrary to the public interest. 

Before passage of the Mine Act, mine operators were governed by the Coal Act and its 

regulations. Operators and regulators negotiated settlements that never saw public scrutiny, and 

negotiations often led to large penalty reductions for operators. Senator Richard Schweiker (RPennsylvania) described the dysfunction: 

[Mine operators] get slapped [with] a fine of $100 or $200 or $300. They 

accumulate a whole lot of them and go back in court and ultimately settle them at 

10 or 20 cents on the dollar... So what you actually assess them at and what they 

settle for are worlds apart and is part of the frustration of dealing with the act. 

123 Cong. Rec. S10,277, reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 1072-73 (1978) (“Legis. 

Hist.”). This system failed to deter hazardous workplace conduct, and devastating mine accidents 

continued to occur. Members of Congress knew that paltry settlement amounts would not be 

10 See. e.g., MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF

INVESTIGATION: FACILITY (COAL) FATAL POWERED HAULAGE ACCIDENT – AUGUST 11, 2021 

https://www.msha.gov/data-reports/fatality-reports/2021/august-11-2021-fatality/final-report; 

MINE SAFETY & HEALTH ADMINISTRATION, U.S. DEP’T OF LABOR, REPORT OF INVESTIGATION:

UNDERGROUND (LEAD-ZINC ORE) FATAL POWERED HAULAGE ACCIDENT – FEBRUARY 22, 2021 

https://www.msha.gov/data-reports/fatality-reports/2021/february-22-2021-fatality/final-report. 

44 FMSHRC Page 688
sufficient incentive for mine operators to adopt safe and compliant practices. As Senator Wendell 

Ford (D-Kentucky) said: 

The settlement of penalty assessments in the past, often for as little as 30 cents on 

the dollar, has been a disgrace, as well as a serious obstacle to effective use of the 

civil penalty mechanism to encourage compliance. 

123 Cong. Rec. S10,209, reprinted in Legis. Hist., at 922. There was bipartisan consensus that 

compromised settlements had become an impediment to ensuring miner safety. 

Congress decided to reshape the settlement regime with the Mine Act. Congress identified 

the compromise of assessed penalties in settlement as a problem with prior legislation, and it 

crafted section 110(k) of the Mine Act as a solution. By subjecting settlements to judicial review, 

Congress intended to avoid “the unwarranted lowering of penalties as a result of off-the-record 

negotiations” and to ensure that “the public interest is adequately protected before approval of 

any reduction in penalties.” S. Rep. No. 95-181, at 45 (1977), reprinted in Legis. Hist., at 633. 

It is therefore my duty to review compromised penalties. Motions proposing large penalty 

reductions—where the operator would pay only “10 or 20” or “30 cents on the dollar”—demand 

particular attention because they are the very settlements that Congress saw as an obstacle to 

regulatory compliance. 123 Cong. Rec. S10,277, S10,209, reprinted in Legis. Hist., at 1072-73, 

922. The parties must present concrete facts, review the six penalty criteria, and demonstrate how 

the proposed settlement will be fair and protective of the public interest. 

Here, the public interest is not adequately protected. The key public interest to consider 

in evaluating settlements is whether the proposal encourages compliance with safety regulations. 

Black Beauty, 34 FMSHRC at 1866. I fail to see how this settlement could promote compliance. 

Instead, by allowing the operator to pay just thirty cents on the dollar for these serious violations, 

the Secretary encourages the operator to embrace the status quo and accept the minor settlement 

amounts as the cost of doing business. The Secretary has not submitted any information to 

dissuade me of this thinking, or to show that a reduced penalty furthers the public interest. 

Accordingly, I find that the large penalty reduction undermines operator compliance, fails to deter 

dangerous behavior, and therefore contravenes the public interest. 

D. Non-monetary aspects of the settlement 

I have also considered the non-monetary aspects of this settlement motion. Just as in all 

other settlement motions, the Secretary includes the rote recitation that he “has evaluated the 

enforcement value of the compromise and is maximizing his prosecutorial impact in settling this 

case on appropriate terms.” Am. Mot. to App. Settlement at 3. He says that resolution of this case 

through settlement is of “significant enforcement value to the Secretary” in part because the 

citations, as modified, are “preserved for future enforcement actions and are not subject to 

potential vacatur or further downward adjustment after a hearing.” Am. Mot. to App. Settlement 

at 3. This language is found in every settlement motion filed by a CLR, yet a CLR is not qualified 

to comment on legal standards and the law regarding settlements. It is hard to imagine that 

reducing penalties to such a degree has any benefit to future enforcement actions. 

44 FMSHRC Page 689
I accord significant weight to the value of avoiding litigation and its attendant uncertainty. 

However, the Secretary’s boilerplate statements do little more to help me understand how this 

particular settlement meets the AmCoal standard. Stripping citations of their S&S designations 

also impacts future enforcement actions, but the Secretary provides no explanation of these 

specific changes and how they maximize prosecutorial impact. 

Furthermore, “[t]he Commission recognized that significant non-monetary value flows 

from accepting the citations as written.” Solar Sources Mining, 41 FMSHRC 594, 601 (Sept. 2019) 

(internal citations omitted). Here, the Secretary has elected to modify six of the eight citations in 

this docket and forfeit the non-monetary value that would flow from preserving them as written. 

Altogether, although there are some non-monetary benefits to this settlement, none of the 

Secretary’s generalized statements convince me that the particular changes proposed here are “fair, 

reasonable, appropriate under the facts, and protect[] the public interest.” Am. Coal Co., 38 

FMSHRC at 1976. 

III. Conclusion

The violations alleged in this docket are serious, but the Secretary appears to treat them 

casually. He proposes substantial modifications to the text of the citations and a penalty reduction 

of nearly seventy percent. To justify these changes, he submits few facts. The information that 

was submitted is littered with inconsistencies, irrelevancies, and leaps in logic. 

While the Secretary may have taken an indifferent approach in this case, I will not. I take 

my statutory duty to review settlements seriously. I find that the facts submitted by the Secretary 

simply cannot hold up to reasonable scrutiny. For the reasons stated above, the proposed 

settlement is not fair, reasonable, appropriate under the facts, or protective of the public interests. 

It is therefore denied. 

WHEREFORE, the Amended Motion to Approve Settlement is hereby DENIED. 

/s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (Electronic and Certified Mail) 

Bruce H. Jakubauskas, CLR, U.S. Department of Labor, MSHA, Thornhill Industrial Park, 178 

Thorn Hill Road, Suite 100, Warrendale, PA 15086, jakubauskas.bruce@dol.gov 

Dennis Sorter, Harper Companies, P. O. Box 18549, Salt Lake City, Utah 84118, 

dsortor@harpercompaniesinc.com 

44 FMSHRC Page 690