i 

May 2023 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

05-08-23 CONTINENTAL CEMENT 

COMPANY, LLC 

CENT 2021-0013 Page 237 

05-08-23 CONTINENTAL CEMENT 

COMPANY, LLC 

CENT 2021-0013 

correction 

Page 258 

COMMISSION ORDERS 

05-02-23 CONSOL PENNSYLVANIA COAL 

COMPANY, LLC 

PENN 2023-0011 Page 279 

05-16-23 GCC PERMIAN CENT 2022-0218 Page 283 

05-16-23 MORTON SALT, INC. CENT 2022-0237 Page 286 

05-16-23 HANSON AGGREGATES 

PENNSYLVANIA, LLC 

PENN 2022-0124 Page 289 

05-16-23 WAYNE J. SAND & GRAVEL, INC. WEST 2022-0295 Page 292 

05-18-23 DUININCK, INC. LAKE 2022-0058 Page 296 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-02-23 IRON CUMBERLAND, LLC PENN 2023-0007 Page 299 

05-08-23 LEHIGH CEMENT COMPANY, LLC PENN 2022-0133 Page 303 
ii 

05-10-23 TWIN STATE MINING, INC. WEVA 2023-0051 Page 313 

05-18-23 MARYLAND ENERGY 

RESOURCES, LLC 

YORK 2023-0024 Page 317 

05-22-23 GREENBRIER MINERALS, LLC WEVA 2023-0166 Page 324 

05-23-23 CANYON FUEL COMPANY, LLC WEST 2021-0188 Page 328 

05-23-23 GREENBRIER MINERALS, LLC WEVA 2023-0166 Page 380 

05-24-23 CACTUS CANYON QUARRIES, 

INC. 

CENT 2022-0010-M Page 384 

05-25-23 NEVADA GOLD MINES LLC WEST 2022-0201 Page 403 

ADMINISTRATIVE LAW JUDGE ORDERS 

05-08-23 CONSOL MINING COMPANY, LLC WEVA 2023-0035 Page 426 

05-11-23 CONSOL MINING COMPANY LLC WEVA 2023-0141 Page 431 

05-15-23 DAVID A. ROSE FARM & AG 

SERVICES 

SE 2023-0159-RM Page 434 

05-17-23 SEC. OF LABOR o/b/o PAUL KIRK 

v. CEMEX CONSTRUCTION 

MATERIALS FLORIDA, LLC 

SE 2023-0007-DM Page 437 

05-31-23 SEC. OF LABOR O/B/O LARRY 

ANDERSON v. KALAMAZOO 

MATERIALS, INC., AND ROCK 

PROS USA, LLC, and any and all 

successors in interest 

WEST 2023-0238 Page 443 
iii 

No Review Was Granted or Denied During The Month Of 

May 2023

COMMISSION DECISIONS
45 FMSHRC Page 236
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

May 8, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of TARA OTTEN 

 v. 

CONTINENTAL CEMENT COMPANY, 

LLC 

 

Docket No. CENT 2021-0013 

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

DECISION

BY: Jordan, Chair; Rajkovich and Baker, Commissioners 

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

§ 801 et seq. (2018) (“Mine Act” or “Act”), concerns a complaint filed by the Secretary of Labor 

on behalf of Tara Otten, pursuant to section 105(c) of the Act, 30 U.S.C. § 815(c).1 The 

Secretary alleges that Continental Cement Company (“Continental”) violated section 105(c)(1) 

when it withheld pay from Otten because she exercised her statutory rights as a designated 

representative of miners pursuant to section 103(f) of the Mine Act, 30 U.S.C. § 813(f) (miners’ 

representatives shall have the “opportunity to accompany [an inspector] during the physical 

inspection [of the mine]” while “suffer[ing] no loss of pay during the period of [her] 

participation.”) (emphasis added). 

After a hearing, a Commission Judge issued a decision holding that Continental violated 

sections 103(f) and 105(c)(1) of the Mine Act when it refused to pay Otten the wage-rate she 

would have otherwise earned on certain shifts, had she not served as a miners’ representative. 44 

FMSHRC 121, 149 (Feb. 2022) (ALJ). The Judge awarded Otten backpay of $388.39 plus prejudgment interest and assessed a civil penalty of $17,500 against Continental. Id. at 159. 

Thereafter, Continental filed a petition for discretionary review of the Judge’s decision, which 

the Commission granted. For the reasons herein, we affirm the Judge’s decision. 

1

 Section 105(c)(1), 30 U.S.C. § 815(c)(1), provides that: 

 [n]o person shall discharge or in any manner discriminate against . 

. . or cause discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, representative of 

miners . . . because of the exercise by such miner, representative of 

miners . . . on behalf of himself or others of any statutory right 

afforded by this Act. 

45 FMSHRC Page 237
I. 

Factual and Procedural Background 

At the time of the events at issue, Tara Otten worked as a “Laborer” in the Yard 

department at Continental’s underground limestone mine in Hannibal, Missouri. Otten also 

served as a designated representative of miners pursuant to section 103(f) of the Mine Act. 

The United Steelworkers represents Continental’s employees; a collective bargaining 

agreement (“CBA”) governs the terms and conditions of their employment. According to the 

CBA, if there are an insufficient number of “Mobile Equipment Operators” on a shift, the most 

senior qualified “Laborer” is given the opportunity to perform mobile equipment work and is 

paid at the higher Mobile Equipment Operator hourly rate.2

 Therefore, in instances when Otten 

was the most senior qualified Laborer in the Yard department, she would receive the first 

opportunity for an available mobile equipment assignment. 

On certain shifts that occurred between March 2020 and January 2021, Otten 

accompanied an inspector from the Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) as the designated miners’ representative on inspections of the mine.3

 

During these shifts, a Laborer operated mobile equipment and received the corresponding pay 

upgrade. It is undisputed that as the senior Laborer, Otten would have had the first opportunity to 

operate the mobile equipment on these shifts, had she not acted as a miners’ representative. 

Otten testified that she previously received Mobile Equipment Operator pay when she 

served as a miner’s representative during shifts on which she would have otherwise operated 

mobile equipment. Vol II, Tr. 253-55. Otten further testified that she was assigned to operate 

mobile equipment “generally every day.” Vol. II, Tr. 268. 

A dispute arose when Heather Ames, a Continental human resources manager, instructed 

the payroll specialist to retract the Mobile Equipment Operator pay upgrades that Otten’s 

supervisor had coded on her timecard for shifts on which Otten worked as a miners’ 

representative (March 24-26, 31 and April 1-2, 2020). Ames testified that she believed that 

according to the new CBA, a miner must actually operate mobile equipment to receive the 

corresponding wage rate. Vol. II, Tr. 179, 182, 214-15. Ames relied upon the CBA’s “zipper 

clause” which she understood to cancel past-practices concerning wage upgrades. Jt. Stip. at 24 

2

 According to the CBA’s Wage Rate Schedule, effective May 5, 2019, the Laborer rate 

was $25.05 an hour and the Mobile Equipment Operator hourly rate was $28.21. Effective May 

3, 2020, the Laborer hourly rate was $25.68, and the Mobile Equipment Operator hourly rate was 

$28.92. Jt. Stip. at 21. 

3 Specifically, Otten participated in MSHA inspections that took place on March 24, 

2020; March 25, 2020; March 26, 2020; March 31, 2020; April 1, 2020; April 2, 2020; June 9; 

2020; July 8, 2020; July 14, 2020; July 15, 2020; July 21, 2020; July 22, 2020; January 28, 2021; 

and January 29, 2021. Jt. Stip. 30. 

45 FMSHRC Page 238
(“This Agreement supersedes and cancels prior practices and agreements . . . .”). Accordingly, 

Ames believed that Otten should instead be paid as a Laborer for these specific shifts.4

Otten filed a grievance alleging that Continental wrongfully withheld pay, which 

Continental denied. On April 28, 2020, Otten filed the subject discrimination complaint with 

MSHA. The Secretary filed a complaint on behalf of Otten with the Commission.5

 

The Judge concluded that section 103(f) requires that a miners’ representative receive the 

same compensation she would have otherwise received had the inspection not occurred. The 

Judge held that Continental structured its pay practices in a manner that may dissuade a miners’ 

representative from exercising her statutory rights in violation of sections 103(f) and 105(c)(1). 

The Judge conducted two discrete analyses in support of his conclusion. In his primary analysis 

the Judge stated that the Secretary establishes a violation of section 105(c)(1) by demonstrating, 

by a preponderance of the evidence, that the miners’ representative suffered a loss of pay in 

violation of section 103(f). 44 FMSHRC at 149. As an alternative analysis, the Judge utilized the 

traditional Pasula-Robinette test for discrimination, finding that the loss of pay was motivated by 

Otten’s exercise of protected rights. Id. at 150. 

On review, Continental raises numerous arguments as to why the Judge erred in his 

analysis and why his findings lack evidentiary support. For the reasons which follow, we reject 

those arguments, and we affirm the Judge. 

II. 

Disposition 

Section 103(f), 30 U.S.C. § 813(f), establishes walkaround rights for miners who 

accompany MSHA inspectors on mine safety inspections. It provides that: 

. . . a representative of the operator and a representative authorized 

by his miners shall be given an opportunity to accompany the 

Secretary or his authorized representative during the physical 

inspection of any coal or other mine . . . for the purpose of aiding 

such inspection and to participate in pre- or post-inspection 

conferences held at the mine . . . Such representative of miners 

who is also an employee of the operator shall suffer no loss of pay

during the period of his participation in the inspection made under 

this subsection. 

4

 Continental later reinstated partial pay upgrades for March 31 and full upgrades for 

April 1-2 because Otten performed mobile equipment work during those shifts. Jt. Stip. 57, 77. 

Otten operated mobile equipment after finishing her duties as a miner’s representative. 

5

 On January 29, 2021, Otten became a full-time Mobile Equipment Operator. 

45 FMSHRC Page 239
The Act’s legislative history states that section 103(f) was included in the Mine Act to: 

enable miners to understand the safety and health requirements of 

the Act and [thereby] enhance miner safety and health awareness. 

To encourage such miner participation, it is the Committee's 

intention that the miner who participates in such inspection and 

conferences be fully compensated by the operator for time thus 

spent. To provide for other than full compensation would be 

inconsistent with the purpose of the Act and would unfairly 

penalize the miner for assisting the inspector in performing his 

duties. 

S. Rep. No. 95-181, 95th Cong., 1st Sess, at 28-29 (1977), reprinted in Senate Subcomm. 

on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 616-17 (1978) (emphasis added). 

With respect to section 105(c) of the Mine Act, its legislative history has led the 

Commission and courts to conclude that the section is to be construed “expansively to assure that 

miners will not be inhibited in any way in exercising any rights afforded by the [Act].” S. Rep. at 

36, Legis. Hist. at 624 (quoted in Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1480 

(Aug. 1982)); see also Sec’y of Labor v. Cannelton Industries, 867 F.2d 1432, 1437 (D.C. Cir. 

1989). In Moses, the Commission held that section 105(c)(1) was intended to encourage miner 

participation in enforcement of the Mine Act by protecting them against “‘not only the common 

forms of discrimination, such as discharge, suspension, demotion . . . but also against the more 

subtle forms of interference . . . .”’ Id. at 1478 (quoting S. Rep. No. 95-191, at 36, Leg. Hist. at 

624). 

A. Continental Violated Sections 103(f) and 105(c)(1) of the Mine Act. 

Section 103(f) of the Mine Act plainly requires an operator to compensate a miners’ 

representative with the pay she would have received had she not exercised her statutory rights. 

30 U.S.C. § 813(f) (“[s]uch representative of miners who is also an employee of the operator

shall suffer no loss of pay during the period of his participation.). Our plain reading of the 

section is fully consistent with Congress’ stated intention “to encourage [ ] miner participation” 

by providing “full compensation.” S. Rep. No. 95-181, 95th Cong., 1st Sess, at 28-29 (1977); see 

also Magma Copper Co., 1 FMSHRC 1948, 1951-52 (Dec. 1979) (“[t]he purpose of the right to 

walkaround pay granted by section 103(f) is [] clear: to encourage miners to exercise their right 

to accompany inspectors.”). 

We affirm the Judge’s primary analysis and his holding that Continental interfered with 

miner representative Otten’s statutory rights in violation of section 105(c)(1) when it paid her at 

a lower hourly rate than she would have otherwise earned. 44 FMSHRC at 149. 

The Judge’s decision is supported by Roger L. Stillion v. Quarto Mining Co., 12 

FMSHRC 932 (May 1990), in which the Commission concluded that the failure to compensate a 

miners’ representative as required by section 103(f) demonstrates that the operator discriminated 

45 FMSHRC Page 240
against the miners’ representative. The Commission considered whether the miner was entitled 

to compensation pursuant to section 103(f) and whether the right was violated. Id. at 937-39. 

Notably, the Commission did not find it necessary to consider whether the operator was 

motivated by discriminatory animus.6 

We also find the Judge’s analysis to be fully consistent with Sec’y obo Richard Truex v. 

Consolidation Coal Co., 8 FMSHRC 1293, 1299 (Sept. 1986). In Truex, the Commission found 

that the operator interfered with the miners’ representative’s section 103(f) rights in violation of 

section 105(c)(l). As in Stillion, the Commission in Truex did not base its liability findings on 

whether the operator was motivated by discriminatory animus. The Commission therefore 

ordered backpay, finding “Consol's attempt to use the Contract as a defense [to be] irrelevant.” 

Id. 

The record in this case is clear. Continental does not dispute that Otten would have 

earned a higher wage-rate on the shifts at issue if she had not exercised her walkaround rights 

and instead accepted the available mobile equipment assignment. In fact, Heather Ames testified 

that she instructed the payroll specialist to retract the pay upgrades “[b]ecause [Otten] was 

accompanying the MSHA [inspector] during an inspection.” Vol. II, Tr. 58-62, 67-68, 72. She 

further testified Otten “could say she didn’t want to go on the inspection. There are other miners’ 

reps.” Vol II, Tr. 79-80. Furthermore, in an email to her colleague Ames wrote “if Tara [Otten] is 

unavailable for a job, she is not available – no different than if she was on vacation or in the store 

house filling in, she would not get the upgrade because junior people below her received the 

upgrade. She chooses to work with MSHA.” J Ex. 7-j. Ames confirmed, in a written statement to 

MSHA, that Continental would not pay wage upgrades to miners’ representatives when a less 

senior employee receives the upgrade. J Ex. 3.7 Because Otten exercised her statutory 

walkaround rights, she suffered an adverse action (loss of pay in violation of section 103(f)).8 

6

 The parties’ arguments addressing animus and the Pasula-Robinette test are addressed 

infra in subsection B. 

7

 Our dissenting colleague claims that the Secretary submitted only “inclusive” evidence 

regarding animus to support a finding that the violation was motivated by protected activity. Slip 

op. at 14. While our analysis as set forth herein does not turn on an evaluation of Continental’s 

motivation, we note the record evidence described above. 

8

 Also, our dissenting colleague claims the majority has arbitrarily dismissed a statutorily 

required element of section 105(c) by ignoring the operator’s motivation. Slip op. at 14-15. 

However, what the statute explicitly requires is causality. 30 U.S.C. § 815(c)(1) (no person shall 

discriminate against a miner “because of” the exercise of a statutory right). None of the cases 

cited by our colleague support his proposition that the definition of “because” must inherently 

require a showing of motivation. Slip op. at 14. Of course, in standard discrimination cases

motivation has traditionally played a critical role in establishing causality. However, as discussed 

further below, we find that discriminatory motivation is not required to establish causality under 

the conditions of this case. The record clearly shows that this miner suffered a loss expressly 

prohibited by the Act because of her exercise of an expressly protected right. A finding of 

discrimination is consistent with the statutory requirements of section 105(c). 

45 FMSHRC Page 241
The operator argues that it complied with the Mine Act’s requirements when it paid Otten 

her Laborer rate of pay for time served as a miners’ representative. We disagree. Otten suffered a 

prohibited “loss of pay during the period of [her] participation in the inspection” when she was 

paid less for the shifts than she would have otherwise earned. 30 U.S.C. § 813(f). Continental 

“unfairly penalize[d] the miner for assisting the inspector” contradicting the legislative purpose 

of the section.9 S. Rep. No. 95-181 at 28-29, Legis. Hist. at 616-17. 

Additionally, Continental argues that according to the CBA, Otten was only entitled to 

the wage upgrade provided that she actually operated the mobile equipment. In the event of a 

conflict between the terms of the parties’ agreement and the requirements of a federal statute, the 

statutory requirements take precedence. See Barrentine v. Arkansas-Best Freight System, Inc., 

450 U.S. 728, 740-41 (1981) (“[W]e have held that congressionally granted FLSA rights take 

precedence over conflicting provisions in a collectively bargained compensation arrangement.”); 

see also W.R. Grace and Co. v. Local Union 759, 461 U.S. 757, 766 (1983) (citing Hurd v. 

Hodge, 334 U.S. 24, 34-35 (1948) (“As with any contract, however, a court may not enforce a 

collective bargaining agreement that is contrary to public policy.”)). 

To the extent that the CBA may conflict with section 103(f), the requirements of section 

103(f) control. See also R. Mullins v. Beth-Elkhorn Coal Corporation, 9 FMSHRC 891, 899 

(May 1987) (citations omitted) (“we do not decide cases in a manner which permits parties’ 

private agreements to overcome mandatory safety requirements or miners’ protected rights; nor 

do we unnecessarily thrust ourselves into resolution of labor or collective bargaining disputes.”). 

Any agreement between mine operators and unions must meet or exceed the statutory floor.10

 Continental maintains that it did not discriminate against Otten or otherwise interfere 

with her rights, noting that during the same payroll processing period it also retracted the wage 

upgrades for Laborers that had performed carpentry work. Continental maintains it interpreted 

the CBA’s zipper clause as canceling all informal prior pay practices, including its informal 

practice of providing pay upgrades for working as a miners’ representative or as a carpenter. The 

analogy Continental draws between miner’s representatives and carpenters is inapposite, 

performing carpentry work, in and of itself, is not a protected activity. Again, section 103(f) 

protects the pay of miners performing the statutory role of a “miners’ representative” and is not 

superseded by any private agreement. 

9

 Continental also alleges that previous decisions of Commission Administrative Law 

Judges support its position. To the contrary, we conclude that the Judge’s decision in this matter 

is consistent with previous decisions of our Judges. In any event, Commission Judge’s decisions 

are not precedential according to Commission Procedural Rule 69(d), 29 C.F.R. § 2700.69(d). 

10 Furthermore, the evidence demonstrates that on at least one occasion Otten was not 

assigned to operate mobile equipment, but was provided with upgraded pay because a junior 

Laborer was assigned to operate mobile equipment. The CBA provides Continental management 

with the discretion to grant unilateral wage increases. Vol II, Tr. 93-94. 

45 FMSHRC Page 242
B. A Showing of Discriminatory Animus is Not Required to Establish a Violation of 

Section 103(f). 

Continental argues that it did not interfere with Otten’s section 103(f) rights in violation 

of section 105(c)(1) because it was not motivated by a discriminatory animus. Continental argues 

that the Secretary must demonstrate that Otten’s loss of pay was motivated by the exercise of 

protected activity in accordance with the Pasula-Robinette test for discrimination, in order for 

Continental to be liable for the alleged violations of the Mine Act. 11

The Secretary likewise argues that a finding of discriminatory animus is a necessary 

element of a claim. However, the Secretary maintains that the Judge’s alternative analysis – 

finding that Continental was motivated by Otten’s exercise of protected rights when it retracted 

the pay upgrades – is supported by substantial evidence. The Secretary relies upon Sec’y of 

Labor on behalf of Glover v. Consolidation Coal Co., 19 FMSHRC 1529 (Sept. 1997), in which 

the Commission applied the Pasula-Robinette test for discrimination and found that the operator 

violated section 105(c)(1) when it transferred the positions of two miners’ representatives in 

retaliation for the exercise of their rights. 

We disagree with Continental’s and the Secretary’s contentions. As established supra, the 

Commission has not required that a miners’ representative demonstrate that a loss of pay was 

motivated by discriminatory animus to prove unlawful interference with section 103(f) rights. In 

fact, permitting the operator to provide an affirmative defense – as Continental seeks to do – 

would be inconsistent with the operator’s duty to comply with the explicit “no loss of pay” 

requirement in section 103(f) of the Mine Act. See Sec’y on behalf of Truex, 8 FMSHRC at 1299 

(finding the operator’s affirmative defense “irrelevant”). 

11 According to the Pasula-Robinette framework, in order to establish a prima facie case 

under section 105(c) the complainant must establish that the adverse action was motivated in any 

part by the complaint’s exercise of protected activity. Sec’y on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds 663 F.2d 1211 (3rd Cir. 

1981); Sec'y on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 

1981). An operator may defend affirmatively against a prima facie case by proving that it was 

also motivated by the miner's unprotected activity and would have taken the adverse action for 

the unprotected activity alone. See Robinette, 3 FMSHRC at 817-18; Pasula, 2 FMSHRC at 

2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 

1987) (applying Pasula-Robinette test). 

The Ninth Circuit has rejected the Pasula-Robinette test in Thomas v. CalPortland Co., 

993 F.3d 1204, 1209-10 (9th Cir. 2021). Thomas has been remanded to the Commission and 

remains a pending matter on our docket. Continental’s Hannibal mine is located in the Eighth 

Circuit, and thus the Ninth Circuit ruling is not binding. Nevertheless, the Judge found that the 

loss of pay to Ms. Otten would not have occurred “but for” her engaging as a miners’ 

representative during a walkaround inspection. We conclude that the Judge’s findings under his 

alternative analysis are supported by substantial evidence, reasonable inferences drawn from the 

record, and proper consideration of relevant testimony. 

45 FMSHRC Page 243
We also find Glover to be readily distinguishable. Transfers of positions are not generally 

prohibited under the Mine Act. A transfer is unlawful, however, when motivated by 

discriminatory animus in violation of section 105(c)(1). In contrast, the “loss of pay” while 

exercising rights as a miners’ representative is always expressly prohibited by section 103(f) of 

the Mine Act, regardless of intent. 30 U.S.C. § 820(a) (“The operator of a coal or other mine in 

which a violation occurs of a mandatory health or safety standard or who violates any other 

provision of this chapter, shall be assessed a civil penalty by the Secretary . . . .”); see also Nally 

& Hamilton Enterprises, 38 FMSHRC 1644, 1650 (July 2016) (citations omitted) (“Because the 

Mine Act is a strict liability statute, an operator is liable if a violation of a mandatory safety 

standard occurs, regardless of the level of fault.”). 

Accordingly, consistent with Commission precedent, we find that a showing of animus is 

not required to establish a violation of section 103(f) and that Pasula-Robinette is not the 

appropriate test for evaluating a miners’ representative’s claim of an unlawful loss of pay in that 

regard.12 

C. We Affirm the Judge’s Penalty Assessment. 

Continental additionally argues that the Judge erred in assessing a $17,500 civil penalty. 

Section 110(i) of the Mine Act, 30 U.S.C. § 820(i), provides that the Commission is authorized 

to assess all penalties under the Mine Act and that such penalties must reflect consideration of 

six statutory factors.13 The Commission’s review of a Judge’s discretionary penalty assessment is 

a two-step process. First, the Commission reviews the Judge’s findings on the penalty factors for 

the support of substantial evidence and, second, the Commission reviews the Judge’s overall 

assessment for an abuse of discretion. Solar Sources I, 42 FMSHRC 181, 208 (Mar. 2020). 

Here, the Judge found that the operator’s previous violation history, size of the mine and 

the size of the controlling entity were all moderate. 44 FMSHRC at 159. However, the Judge 

concluded that the negligence and gravity factors were significant. Id. at 158. 

Continental asserts that the Judge erred in his assessment of the mine’s violation history, 

failing to account for its lack of a prior history of section 105(c) violations. Continental is 

incorrect. It is well established that the Commission considers the operator’s general violation 

history, not just its history of similar violations, when assessing a penalty. See Solar Sources 

Mining, LLC, 43 FMSHRC 367, 373 (Aug. 2021) (citations omitted). 

Continental also argues that the Judge erred in his gravity finding. The operator wrongly 

maintains that the Judge should have considered its reliance on the CBA as a mitigating factor. 

12 We make no other finding regarding the Pasula-Robinette test in this proceeding. 

 

13 [1] the operator’s history of previous violations, [2] the appropriateness of such penalty 

to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the 

effect on the operator’s ability to continue in business, [5] the gravity of the violation, and [6] the 

demonstrated good faith of the [operator] charged in attempting to achieve rapid compliance 

after notification of a violation. 30 U.S.C. § 820(i). 

45 FMSHRC Page 244
We conclude that the Judge’s findings are supported by the record and that the Judge did 

not otherwise abuse his discretion in assessing a civil penalty. See American Coal Co. v. 

FMSHRC, 933 F.3d 723, 726 (D.C. Cir. 2019), aff’g 40 FMSHRC 1011 (Aug. 2018) (“we 

review the ALJ’s penalty calculation for an abuse of discretion.”); see also Donovan ex rel. 

Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983) (Commission may not 

“substitute a competing view of the facts for the view [an] ALJ reasonably reached.”); Island 

Creek Coal Co., 15 FMSHRC 339, 347 (Mar. 1993) (“[i]t would be inappropriate for the 

Commission to reweigh the evidence ... or to enter de novo findings based on an independent 

evaluation of the record.”). 

Accordingly, we affirm the penalty assessed by the Judge. 

III. 

Conclusion 

For the foregoing reasons, we affirm the Judge’s decision in all respects. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

45 FMSHRC Page 245
Commissioner Althen, concurring in part and dissenting in part:

I. 

The record supports a loss of pay in violation of section 103(f). 

I concur that the Complainant, Tara Otten, suffered a loss of pay due to not receiving an 

upgrade in pay to the status of a Mobile Equipment Operator (“MEO”) on the days in question. I 

emphasize that nothing is illegal or improper in paying a miner for the work the miner performs 

on a given day. There is no legal deficiency with Article VI Section 9 of Continental Cement 

Company, LLC’s (“Continental”) contract with the United Steel Workers of America. 

Here, however, the record permits no conclusion other than that Otten would have 

worked as an MEO on the days in question and, therefore, would have received upgraded MEO 

pay for those days. She was entitled to MEO pay for her time as a walkaround representative on 

those days. 

II. 

The Commission should overrule the discredited Pasula/Robinette standard and apply the 

“because” standard used in federal discrimination statutes. 

 Section 103(f) does not provide a private right of action for a miner to recoup a loss of 

wages. The miner must rely upon the Mine Safety and Health Administration (“MSHA”) to 

recover lost pay. 

Two routes are available to MSHA. It may cite the operator for a violation under section 

104(a), 30 U.S.C § 814(a), for causing a loss of pay. For 103(f) citations issued under section 

104(a), a strict liability section, MSHA must only prove a loss of pay from the miners’ 

representative’s participation in the inspection. A section 104(a) citation is straightforward and 

does not require proof of action motivated by protected activity. See Magma Copper Co. v. Sec’y 

of Labor, 645 F.2d 694 (9th Cir. 1981). 

Alternatively, MSHA or a miner may file a discrimination complaint under section 

105(c). 30 U.S.C. § 815(c). Section 105(c) requires proof of motivation “because of” protected 

activities. As relevant, Section 105(c)(1) of the Mine Act provides: 

No person shall discharge or in any manner discriminate against or 

cause to be discharged or cause discrimination against or otherwise 

interfere with the exercise of the statutory rights of any miner . . . 

[1] because such miner . . . has filed or made a complaint under or 

related to this Act . . . or [2]because such miner . . . is the subject of 

medical evaluations and potential transfer under a standard 

published pursuant to section 101 or [3] because such miner . . . has 

instituted or caused to be instituted any proceeding under or related 

to this Act or has testified or is about to testify in any such

45 FMSHRC Page 246
proceeding, or [4] 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) (emphasis added). 

The Secretary asserted a section 105(c) violation in this matter. By doing so, the 

Secretary accepted an obligation to prove its claim under the statute’s requirements.1

 

The Commission’s traditional standard of proof for a section 105(c) discrimination 

violation has been the Pasula-Robinette test. Sec’y of Labor on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981); 

Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). 

Under that test, the complainant or Secretary establishes a prima facie case of discrimination by 

proving (1) that the miner engaged in a protected activity and (2) that the adverse action was 

motivated in any part by the protected activity. The operator may raise an affirmative defense by 

claiming it would have taken the same action for a reason other than protected activity. Despite 

its years as the Commission standard, it is now clear the Pasula-Robinette test is invalid.

In 2021, the United States Court of Appeals for the Ninth Circuit invalidated the PasulaRobinette test, holding: “Section 105(c)’s unambiguous text requires a miner asserting a 

discrimination claim under Section 105(c) to prove but-for causation.” Thomas v. CalPortland 

Co., 993 F.3d 1204, 1211 (9th Cir. 2021). The CalPortland case focused squarely upon section 

105(c). The Commission must now apply that standard in cases within the Ninth Circuit. 

However, more compelling is that the circuit court’s holding is correct. Indeed irrefutable. In 

CalPortland, the circuit court cited numerous Supreme Court decisions. Id. at 1209-10, citing

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013); Gross v. FBL Fin. Servs., 557 U.S. 

167 (2009). Those cases and CalPortland compel the application of the but-for standard to 

section 105(c) cases. 

As the inevitable result of CalPortland, Judges now hedge their decisions by referring to 

Pasula-Robinette and CalPortland. Continued citation to Pasula-Robinette will inevitably result 

in parties and Commission Judges trying, arguing, and deciding cases under two standards. In 

this case, the Judge added a tagline in the decision that he would have reached the same result 

1

 The majority finds the Administrative Law Judge (“ALJ”) grounded his decision on the 

basis that it was unnecessary to prove the statutorily required elements of discrimination. The 

majority errs in accepting and endorsing the Judge’s error. It is startling to read the majority 

describe section 105(c) as a strict liability section to which intent does not apply. The concept of 

strict liability in the Mine Act is derived from the section 110(a) of the Act (30 U.S.C. § 820(a)) 

which authorizes the imposition of civil penalties for violations of mandatory health or safety 

standards. See Allied Prod. Co. v. FMSHRC, 666 F.2d 890, 893 (5th Cir. 1982). I disagree with 

the majority’s attempt to expand strict liability into section 105(c) proceedings, beyond what 

Congress clearly intended. Moreover, if strict liability is to be incorporated into section 105(c) 

proceedings, the majority’s decision must be read to only do so in the limited context of a section 

103(f) contest. To do otherwise would present a major change in long-standing Commission 

precedent and fly directly in the face of the plain letter of the law. 

45 FMSHRC Page 247
under the but-for standard. Such pro forma references to but-for causation may result, as in this 

case, in a minimized finding of but-for causation without meaningful discussion. The 

Commission should forego whistling Pasula-Robinette in the wind and formally adopt the proper 

standard. The correct issue on this appeal is whether Continental's insufficient payment was 

“because” of animosity toward the exercise of walkaround rights. In other words, we should 

apply the but-for standard and decide the issue based on whether the preponderance of the 

evidence shows protected activity-motivated discrimination. 

However, application of Pasula-Robinette, in this case, would not change the result 

because that test requires proof of causation based upon protected activity. Here, the majority 

fails to apply any causation standard without explaining why an explicit element of section 

105(c) does not apply to section 103(f) cases. 

In 2016, the Commission rejected a challenge to Pasula-Robinette. Sec’y of Labor on 

behalf of Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914, 1919-21 (Aug. 2016). 

However, times change, and Commission Judges now plot a course between two tests. It is time 

for the Commission to recognize the inevitability of the proper test for discrimination and adjust 

its test to the correct “but for” standard. 

III. 

The record does not contain substantial evidence that Otten received her regular pay 

“because” she acted as a miners’ representative. Continental’s human resource manager 

decided the appropriate pay “because” of Continental’s collective bargaining agreement 

with Otten’s union. 

A. Relevant facts 

 Continental operates the Hannibal Underground Mine in Missouri. The United Steel 

Workers of America represents the hourly employees at the plant. The Union negotiated a 

collective bargaining agreement (“CBA”) with Continental for union-represented employees, 

including Otten. As with most union contracts, the CBA created classified employee positions 

and established pay rates for each classification. 

 Two classifications were Laborer and Mobile Equipment Operator. Laborers are hourlyrate employees who perform primarily general clean-up work throughout the plant, lawn 

work, labor work involved in refractory replacement in kiln and cooler, snow removal from 

roadways and sidewalks, and painting. A Laborer is expected to be capable of operating 

various types of mobile equipment as needed. Of course, the work of an MEO is to 

exclusively operate mobile equipment. 

The CBA pay rates provide slightly more than $3.00 per hour additional pay for 

employees classified as MEO workers. The CBA, however, also provides that management 

could require a Laborer to perform MEO work. When a Laborer does so, the CBA requires 

Continental to pay the MEO classification wage rate, stating, “[w]hen work of a higher paid 

45 FMSHRC Page 248
classification is required of any employee, he/she shall receive the higher rate of pay for a 

minimum of four hours.” J. Ex. 4, at 14. Under the CBA, this upgraded pay depended upon the 

performance of MEO work. If a Laborer performed MEO work for less than four hours, the 

Laborer received the higher rate for four hours. If the employee performed MEO work for more 

than four hours, the employee received MEO pay for the entire day.2

 Otten’s default classification was Laborer. She also was a miners’ representative. All 

agree that she frequently performed MEO work and received the upgraded pay according to the 

CBA when she performed such work. Continental paid her according to her classification as a 

Laborer when not performing such work. 

On the dates in question, Otten had or would have had the opportunity to perform MEO 

work at the MEO pay rate. On those dates, however, an MSHA inspector was present at the 

mine, and Otten chose to exercise her walkaround rights with the MSHA inspector. It is 

undisputed that based upon experience, Otten would have taken that opportunity for MEO work 

had she not chosen to exercise the right of a miners’ representative. 

 Initially, Otten received pay at the rate of an MEO for the days in question. Subsequently, 

a Continental Human Resources specialist, Heather Ames, reviewed Continental’s pay records 

including those of Otten and two other union-represented workers. According to Ames, she alone 

decided to apply the terms of the CBA. Ames found that Otten did not perform MEO work on 

certain days and, therefore, was not entitled to upgraded MEO pay under the CBA. On the same 

day, Ames reversed the paid upgrade for the two other employees because the upgrade pay 

provision did not apply to them. Ames testified that she later found that she had made a mistake 

for certain days and then partially reinstated the upgrades for Otten. 

 The evidence establishes that Ames made these pay decisions based on the terms of the 

CBA. Ames testified that she, and she alone, decided to reduce the pay and then partially 

upgrade the pay of Otten and other workers. No witness or evidence impeached Ames’ testimony 

that she made these decisions. 

2 Article VI, Section 9 of the CBA provides: 

When work of a higher paid classification is required of any 

employee, he/she shall receive the higher rate of pay for a 

minimum of four hours. If the employee exceeds four hours of 

work at the higher classification, then he/she shall receive the 

higher rate of pay for the entire day. When work of a lower paid 

classification is temporarily required of any employee, he/she 

shall receive his/her regular straight time hourly rate of pay. 

J Ex. 4, at 14; Jt. Stip. 23.

45 FMSHRC Page 249
B. The Judge’s Decision 

The Judge’s decision initially recognized that Pasula-Robinette is the Commission’s test 

for discrimination. He correctly found that under that test, a miner proves discrimination “when 

[she] proves by a preponderance of the evidence that the miner (1) engaged in protected activity, 

(2) suffered an adverse action, and (3) the adverse action was motivated in any part by that 

protected activity.” 44 FMSHRC 121, 148 (Feb. 2022) (ALJ). 

The Judge acknowledged that “it is true that the Commission has applied the PasulaRobinette framework in [s]ection 103(f) walkaround cases.” Id. at 149. Immediately after that, 

however, the Judge asserted that he did not need to apply the third factor (adverse action 

motivated in any part by that protected activity) of Pasula-Robinette to find a violation of section 

103(f). 

The Judge concluded, “the Court does not believe that the Secretary must show, per the 

Pasula-Robinette framework, that Continental’s refusal to pay Otten the wage upgrades was 

motivated by Otten’s walkaround activities.” Id.3

 Incredibly, the majority now accepts the 

Judge’s deeply flawed reasoning and states violations of section 105(c) need not contain any 

element of expressly required causation. 

 

Finally, after a brief discussion of the penalty factors, the Judge imposed a penalty of 

$17,500. 

C. To Prevail on a Section 105(c) accusation, the Secretary Must Prove Three Factors: 

Protected Activity, Adverse Action, and Adverse Action Because of the Protected 

Activity. The Majority Errs by Disregarding the Necessity for Finding Causation 

by Protected Activity. 

 The majority correctly, albeit implicitly, decides that the Secretary did not prove the 

violation of section 103(f) was “because of protected activity.” The Secretary introduced 

inconclusive evidence to suggest that certain supervisory employees of Continental may have 

harbored ill feelings toward Otten due to other safety activities. However, the record clearly 

demonstrates that Ames, and Ames alone, decided to pay Otten Laborer wages per the CBA. 

As the Judge fleetingly acknowledged but then abandoned, motivation is critical for 

finding a violation of section 105(c). Indeed, all three elements—protected activity, adverse 

action, and motivation by the protected activity—are expressly articulated in the statute and are 

necessary to establish discrimination. Indeed, one might conclude that motivation is the lynchpin 

3

 It may be that the Judge felt and Commission mistakenly feels a need to find a violation 

of section 105(c) for Otten to prevail on the section 103(f) claim or that prevailing on the section 

103(f) automatically required a finding of discrimination. That would be incorrect. MSHA’s 

filing of the discrimination claim was sufficient to put both the right to pay and the occurrence of 

discrimination before the Commission. A supported finding of a failure to meet the requirements 

of section 103(f) may then be made separately even when the Secretary does not prove 

discrimination under section 105(c). 

45 FMSHRC Page 250
of section 105(c) violations. Each day miners raise issues related to safety, thereby engaging in 

protected activity. Each day operators take adverse actions regarding miners. Section 105(c) 

crucially mandates that discrimination occurs only when the protected activity motivates the 

adverse action. 

It is in this respect that the majority departed from the law. The majority declares by fiat that a 

clearly expressed requirement for a section 105(c) violation does not apply if the case involves 

section 103(f). The majority does not provide any support or explanation for arbitrarily 

dismissing an explicit factor for a violation. Nowhere does the majority explain why the express 

language of section 105(c) unambiguously requiring motivation does not apply in a section 

103(f) context. 

Circuit court cases uniformly recognize that “because” in section 105(c) means “because” 

and, therefore, a complainant must establish a motivational nexus between the protected activity 

and adverse action. See generally CalPortland Co., 993 F.3d at 1208-1211; Harrison County 

Coal Co. v. FMSHRC, 790 Fed. Appx. 210, 213 (D.C. Cir. 2019); Con-Ag, Inc. v. Sec’y of 

Labor, 897 F.3d 693, 700-02 (6th Cir. 2018); Cumberland River Coal Co. v. FMSHRC, 712 F.3d 

311, 318 (6th Cir. 2013); Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 88 (D.C. 

Cir. 1983). 

The importance of section 103(f) neither requires nor suggests tarring Continental with a 

discrimination tag based upon Ames’ belief that, per the CBA, Otten was only entitled to 

Laborer’s wages. The majority finds discrimination by removing the necessary element of 

motivation from a section 105(c) violation, even though the Secretary concedes it is necessary. 

In disclaiming the express requirement of the Mine Act, the majority does not cite the 

words of the Act, legislative history, or any policy requisite. Without meaningful analysis, the 

majority would establish that a violation of section 103(f) is a per se violation of section 105(c). 

In doing so, it primarily relies on one case. Stillion v. Quarto Mining Co., 11 FMSHRC 523 

(Apr. 1989) (ALJ), aff’d 12 FMSHRC 932 (May 1990).4 

4

 The majority mischaracterizes the facts and decision in Sec’y on behalf of Truex v. 

Consolidation Coal Co., 8 FMSHRC 1293 (Sept. 1986). The Commission in Truex, expressly 

included “motivation” as part of the proof for a section 105(c) violation. Further, it explained 

that an operator could defend a 105(c) case by showing the action was not motivated by 

protected activity. Id. at 1297. The facts were that the safety supervisor knew Truex was a 

miner’s representative and that he intended to attend a meeting with an MSHA inspector who 

would be arriving momentarily. Nonetheless, the safety supervisor ordered Truex to report to 

work at a location that would have prevented Truex from accompanying the inspector. Truex 

was forced to take unpaid leave in the form of “union business” to attend the meeting and was 

then barred from working for the rest of his shift. The operator claimed that, pursuant to the 

union contract, a miner could not be paid for a partial shift if he had claimed to be on “union 

business.” The Commission found that the contract was irrelevant to the defense of the section 

105(c) allegations, not because a union contract could not be used to demonstrate the operator’s 

motivation, but because the discrimination happened before the operator invoked the contractual 

(continued...) 

45 FMSHRC Page 251
Quarto does not support the majority “per se” concept. At best, the ALJ and Commission 

decisions are cursory. To the extent the decisions recite facts, it is clear the failure to pay arose 

from the operator’s animus to the walkaround. The operator refused to pay a miner any money 

“because” he did the walkaround with an MSHA inspector. Moreover, the Commission did not 

even discuss the standards for finding a section 105(c) violation or any issue of motive or 

causation. 

In Quarto, a miner alleged violations of sections 103(f) and 105(c). The ALJ decision 

does not discuss Pasula-Robinette or any elements of section 105(c). Having not discussed 

section 105(c) in his decision, the ALJ did not discuss any requirements for finding a section 

105(c) violation. The entirety of the ALJ’s finding is: “Respondent violated § 103(f) of the Act 

by refusing to pay Complainant his regular rate of pay for his time spent accompanying a federal 

mine inspector on October 6, 7, and 8, 1987.” 11 FMSHRC at 527. The Judge did not make any 

finding concerning section 105(c) or its necessary elements. Had the Judge considered 

motivation, he would have found it in the case. Further, the Judge did not impose any penalty 

upon the operator nor invite MSHA to do so. See Stillion v. Quarto Mining Co., 11 FMSHRC 

875 (May 1989) (supplemental decision on damages). 

Upon review, the Commission mistakenly stated at the outset of its decision that the 

Judge had found discrimination. However, the Commission’s conclusion of law did not find a 

section 105(c) violation. The Commission’s concluded “that in the circumstances of the present 

case Stillion had a right to walkaround pay under section 103(f).” 12 FMSHRC at 939. As with 

the ALJ’s decision, the Commission’s decision did not discuss the essential elements of 

discrimination, Pasula-Robinette, or motive or causation, let alone dispense with motivation as

an element of section 105(c). Further, the Commission also did not impose a penalty. 

Therefore, Quarto supports a section 103(f) violation. However, Quarto does not reach a 

legal conclusion that a section 105(c) violation occurred, does not discuss the requirements for a 

section 105(c) violation, would have found motivation under the facts of the case, and does not 

support a claim of per se violations. 

The majority expressly recognizes that the Secretary argues that a finding of 

discriminatory animus is a necessary element of a claim. Slip Op. at 7. The Secretary does not 

contend that violations of section 103(f) are per se violations of section 105(c). The Secretary’s 

failure to make such an argument is an appropriate recognition that section 105(c) requires 

motivation (causation) arising from protected activity. The Secretary’s position is correct. 

4

 (...continued) 

terms and was thus irrelevant. Id. at 1299. There is no resemblance to this case in which the 

operator did not take any action to prevent the miner’s exercise of walkaround rights and paid the 

miner for the time spent on the walkaround. 

45 FMSHRC Page 252
IV. 

The Facts Suggest Only a Small Penalty. 

The Mine Act sets forth six factors in setting penalties: (1) effect on the operator’s ability 

to continue in business; (2) an appropriate reduction for demonstrated good faith of the person 

charged in attempting to achieve rapid compliance after notification of a violation; (3) the 

appropriateness of such penalty to the size of the business of the operator charged; (4) the 

operator’s history of previous violations; (5) whether the operator was negligent; and (6) the 

gravity of the violation. 30 U.S.C. § 820(i). 

Factors one and two play no role in this case. The proposed penalty would not affect the 

ability of the operator to continue in business. The statute allows mitigation of penalties when an 

operator acts rapidly to achieve compliance. In this case, believing in the legality of its use of the 

CBA, Continental continued to make payments in the same fashion after the Secretary filed the 

complaint. The failure to capitulate immediately to the Secretary’s legal position with which an 

operator in good faith disagrees is not a reason to increase the penalty. Regarding size, the 

Hannibal mine is a mid-size operation, so size does not weigh heavily for or against a particular 

penalty. 

Despite a long operational history, Continental has no history of a prior finding of a 

violation of section 103(f). The present case is a one-off in which the operator incorrectly 

thought it should use the CBA. Of course, even in discrimination cases, the Commission also 

considers the operator’s history of safety violations. However, strict liability violations of 

operational safety rules have little to do with a tendency of an operator to be motivated to 

retaliate against a miner based on protected activity. Certainly, the absence of even one prior 

violation weighs heavily in favor of a low penalty. 

It is difficult to know what to make of the ALJ’s brief discussion of negligence. The ALJ 

cites a Commission decision to propose that the negligence issue is whether the operator engaged 

in intentional conduct in committing the violation rather than whether it intended to discriminate. 

44 FMSHRC at 157, citing Sec’y on behalf of Poddey v. Tanglewood Energy, Inc., 18 FMSHRC 

1315, 1319 (Aug. 1996) (Commissioners Marks and Riley).5

 Continental’s actions were 

intentional to the extent Ames’ decision to apply the CBA was intentional. In Tanglewood 

Energy, the Commission found that, although the conduct was intentional, the actions constituted 

low negligence. Id. at 1319-20. Continental, through Ames, had an objective, albeit mistaken, 

belief that it should apply the CBA to Otten’s work. Continental’s legal position was untenable. 

However, there is no evidence that Continental took the position in bad faith or, in taking an 

incorrect position, it failed to exercise reasonable care. Thus, substantial evidence supports that 

negligence is a minor factor in the penalty consideration. 

5

 In determining negligence, the Commission considers whether an operator has met its 

duty of care. The Commission considers the actions of a reasonably prudent person familiar with 

the mining industry, the relevant facts, and the purpose of the regulation. Leeco, Inc., 38 FMSHRC 

1634, 1637 (July 2016). In short, did the operator act with the prudence a reasonable operator 

would have exercised under the same or similar circumstances. 

45 FMSHRC Page 253
Interestingly, Tanglewood has greater relevance to the gravity consideration than 

negligence. In Tanglewood, the Commission rejected the Secretary’s argument that every section 

105(c) violation must be presumed to have a chilling effect. Id. at 1320. As with any violation, 

the gravity of section 105(c) violation must be based on the evidence. 

Objective and subjective evidence determine gravity. Id. at 1321. The subjective element 

is the chilling effect upon miners that rests upon “the testimony of the complainant or other 

miners.” Id., citing Sec’y on behalf of Johnson v. Jim Walter Res., Inc., 18 FMSHRC 552, 558 

(Apr. 1996). From an objective standpoint, the question is whether there is evidence that the 

incident “reasonably tended to discourage miners from engaging in protected activities.” Id. 

In this case, the Secretary presented no evidence of any subjective or objective 

discouragement of such activity. The Secretary did not present any objective data or 

measurement showing any adverse effect upon Continental’s miners. Otten was the only hourly 

miner who testified, and her continued performance of walkaround activities demonstrates that 

she was not discouraged. Thus, there is no evidence of a subjective chill upon miners. In sum, 

there is no evidence that this one-time occurrence had any subjective or objective adverse effect 

on Continental’s miners’ willingness to exercise their statutory rights. As with all factors of a 

penalty consideration, we must base the decision regarding gravity on evidence and not a Judge’s 

desire to punish an operator. The gravity factor is low without any subjective or objective 

evidence of a chilling effect. 

In summary, the effect on the ability to stay in business and mitigation through abatement 

are irrelevant here. Continental’s size is moderate. The absence of any prior violation cuts in 

favor of a low penalty. Ames’ actions were intentional in that she intended to do what she did but 

unintentional in any sense of a knowing violation of section 105(c). Finally, there is no 

subjective or objective evidence of a chilling effect. So, the gravity is low. 

V. 

Conclusion. 

Here, the majority’s unwarranted decision to delete a fundamental element from section 

105(c) is more than a wrong result. The decision muddies proof of section 105(c) violations 

when the disparity between Pasula-Robinette and CalPortland already troubles the water. It 

creates uncertainty regarding whether there are other situations in which a majority might 

substitute its own wishes over that of Congress and decide by fiat to alter the statute’s 

requirements. For the first time, it creates a per se violation of section 105(c). It fails to explain 

why a section 103(f) violation automatically violates section 105(c), even though finding a 

section 103(f) violation vindicates the miner’s rights. 

45 FMSHRC Page 254
The Commission should find a violation of section 103(f). The evidence does not show 

Continental’s actions were because of protected activity. Continental did not violate section 

105(c). The violation of section 103(f) warrants no or only a minor penalty. 

I concur with the violation of se

ction 103(f) and respectfully dissent from the finding of a violation of section 105(c) and 

the assessed penalty. 

/s/ William I. Althen 

William I. Althen, Commissioner 

 

45 FMSHRC Page 255
Emily O. Roberts, Esq. 

Senior Trial Attorney 

Office of the Solicitor 

U.S. Department of Labor, 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Roberts.Emily.O@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Scott.Emily.T@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Thomas. R. Chibnall, Esq. 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 

7700 Bonhomme Ave., Suite 650 

St. Louis, MO 63105 

Thomas.Chibnall@ogletree.com 

R. Lance Witcher, Esq. 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 

7700 Bonhomme Ave., Suite 650 

St. Louis, MO 63105 

Lance.Witcher@ogletree.com 

45 FMSHRC Page 256
Melanie Garris 

Civil Penalty Compliance Division Chief 

U.S. Department of Labor 

Office of Assessments 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520 N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Administrative Law Judge William B. Moran 

Federal Mine Safety & Health Review Commission, 

1331 Pennsylvania Avenue, NW, Suite 520 N 

Washington, DC 20004-1710 

WMoran@fmshrc.gov 

45 FMSHRC Page 257
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

May 8, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of TARA OTTEN 

 v. 

CONTINENTAL CEMENT COMPANY, 

LLC 

 

Docket No. CENT 2021-0013 

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

DECISION

BY: Jordan, Chair; Rajkovich and Baker, Commissioners 

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

§ 801 et seq. (2018) (“Mine Act” or “Act”), concerns a complaint filed by the Secretary of Labor 

on behalf of Tara Otten, pursuant to section 105(c) of the Act, 30 U.S.C. § 815(c).1 The 

Secretary alleges that Continental Cement Company (“Continental”) violated section 105(c)(1) 

when it withheld pay from Otten because she exercised her statutory rights as a designated 

representative of miners pursuant to section 103(f) of the Mine Act, 30 U.S.C. § 813(f) (miners’ 

representatives shall have the “opportunity to accompany [an inspector] during the physical 

inspection [of the mine]” while “suffer[ing] no loss of pay during the period of [her] 

participation.”) (emphasis added). 

After a hearing, a Commission Judge issued a decision holding that Continental violated 

sections 103(f) and 105(c)(1) of the Mine Act when it refused to pay Otten the wage-rate she 

would have otherwise earned on certain shifts, had she not served as a miners’ representative. 44 

FMSHRC 121, 149 (Feb. 2022) (ALJ). The Judge awarded Otten backpay of $388.39 plus prejudgment interest and assessed a civil penalty of $17,500 against Continental. Id. at 159. 

Thereafter, Continental filed a petition for discretionary review of the Judge’s decision, which 

the Commission granted. For the reasons herein, we affirm the Judge’s decision.

1

 Section 105(c)(1), 30 U.S.C. § 815(c)(1), provides that: 

 [n]o person shall discharge or in any manner discriminate against . 

. . or cause discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, representative of 

miners . . . because of the exercise by such miner, representative of 

miners . . . on behalf of himself or others of any statutory right 

afforded by this Act. 

45 FMSHRC Page 258
I. 

Factual and Procedural Background 

At the time of the events at issue, Tara Otten worked as a “Laborer” in the Yard 

department at Continental’s underground limestone mine in Hannibal, Missouri. Otten also 

served as a designated representative of miners pursuant to section 103(f) of the Mine Act. 

The United Steelworkers represents Continental’s employees; a collective bargaining 

agreement (“CBA”) governs the terms and conditions of their employment. According to the 

CBA, if there are an insufficient number of “Mobile Equipment Operators” on a shift, the most 

senior qualified “Laborer” is given the opportunity to perform mobile equipment work and is 

paid at the higher Mobile Equipment Operator hourly rate.2

 Therefore, in instances when Otten 

was the most senior qualified Laborer in the Yard department, she would receive the first 

opportunity for an available mobile equipment assignment. 

On certain shifts that occurred between March 2020 and January 2021, Otten 

accompanied an inspector from the Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) as the designated miners’ representative on inspections of the mine.3

 

During these shifts, a Laborer operated mobile equipment and received the corresponding pay 

upgrade. It is undisputed that as the senior Laborer, Otten would have had the first opportunity to 

operate the mobile equipment on these shifts, had she not acted as a miners’ representative. 

Otten testified that she previously received Mobile Equipment Operator pay when she 

served as a miner’s representative during shifts on which she would have otherwise operated 

mobile equipment. Vol II, Tr. 253-55. Otten further testified that she was assigned to operate 

mobile equipment “generally every day.” Vol. II, Tr. 268. 

A dispute arose when Heather Ames, a Continental human resources manager, instructed 

the payroll specialist to retract the Mobile Equipment Operator pay upgrades that Otten’s 

supervisor had coded on her timecard for shifts on which Otten worked as a miners’ 

representative (March 24-26, 31 and April 1-2, 2020). Ames testified that she believed that 

according to the new CBA, a miner must actually operate mobile equipment to receive the 

corresponding wage rate. Vol. II, Tr. 179, 182, 214-15. Ames relied upon the CBA’s “zipper 

clause” which she understood to cancel past-practices concerning wage upgrades. Jt. Stip. at 24 

2

 According to the CBA’s Wage Rate Schedule, effective May 5, 2019, the Laborer rate 

was $25.05 an hour and the Mobile Equipment Operator hourly rate was $28.21. Effective May 

3, 2020, the Laborer hourly rate was $25.68, and the Mobile Equipment Operator hourly rate was 

$28.92. Jt. Stip. at 21. 

3 Specifically, Otten participated in MSHA inspections that took place on March 24, 

2020; March 25, 2020; March 26, 2020; March 31, 2020; April 1, 2020; April 2, 2020; June 9; 

2020; July 8, 2020; July 14, 2020; July 15, 2020; July 21, 2020; July 22, 2020; January 28, 2021; 

and January 29, 2021. Jt. Stip. 30. 

45 FMSHRC Page 259
(“This Agreement supersedes and cancels prior practices and agreements . . . .”). Accordingly, 

Ames believed that Otten should instead be paid as a Laborer for these specific shifts.4

Otten filed a grievance alleging that Continental wrongfully withheld pay, which 

Continental denied. On April 28, 2020, Otten filed the subject discrimination complaint with 

MSHA. The Secretary filed a complaint on behalf of Otten with the Commission.5

 

The Judge concluded that section 103(f) requires that a miners’ representative receive the 

same compensation she would have otherwise received had the inspection not occurred. The 

Judge held that Continental structured its pay practices in a manner that may dissuade a miners’ 

representative from exercising her statutory rights in violation of sections 103(f) and 105(c)(1). 

The Judge conducted two discrete analyses in support of his conclusion. In his primary analysis 

the Judge stated that the Secretary establishes a violation of section 105(c)(1) by demonstrating, 

by a preponderance of the evidence, that the miners’ representative suffered a loss of pay in 

violation of section 103(f). 44 FMSHRC at 149. As an alternative analysis, the Judge utilized the 

traditional Pasula-Robinette test for discrimination, finding that the loss of pay was motivated by 

Otten’s exercise of protected rights. Id. at 150. 

On review, Continental raises numerous arguments as to why the Judge erred in his 

analysis and why his findings lack evidentiary support. For the reasons which follow, we reject 

those arguments, and we affirm the Judge. 

II. 

Disposition 

Section 103(f), 30 U.S.C. § 813(f), establishes walkaround rights for miners who 

accompany MSHA inspectors on mine safety inspections. It provides that: 

. . . a representative of the operator and a representative authorized 

by his miners shall be given an opportunity to accompany the 

Secretary or his authorized representative during the physical 

inspection of any coal or other mine . . . for the purpose of aiding 

such inspection and to participate in pre- or post-inspection 

conferences held at the mine . . . Such representative of miners 

who is also an employee of the operator shall suffer no loss of pay

during the period of his participation in the inspection made under 

this subsection. 

4

 Continental later reinstated partial pay upgrades for March 31 and full upgrades for 

April 1-2 because Otten performed mobile equipment work during those shifts. Jt. Stip. 57, 77. 

Otten operated mobile equipment after finishing her duties as a miner’s representative. 

5 On January 29, 2021, Otten became a full-time Mobile Equipment Operator. 

45 FMSHRC Page 260
The Act’s legislative history states that section 103(f) was included in the Mine Act to: 

enable miners to understand the safety and health requirements of 

the Act and [thereby] enhance miner safety and health awareness. 

To encourage such miner participation, it is the Committee's 

intention that the miner who participates in such inspection and 

conferences be fully compensated by the operator for time thus 

spent. To provide for other than full compensation would be 

inconsistent with the purpose of the Act and would unfairly 

penalize the miner for assisting the inspector in performing his 

duties. 

S. Rep. No. 95-181, 95th Cong., 1st Sess, at 28-29 (1977), reprinted in Senate Subcomm. 

on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 616-17 (1978) (emphasis added). 

With respect to section 105(c) of the Mine Act, its legislative history has led the 

Commission and courts to conclude that the section is to be construed “expansively to assure that 

miners will not be inhibited in any way in exercising any rights afforded by the [Act].” S. Rep. at 

36, Legis. Hist. at 624 (quoted in Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1480 

(Aug. 1982)); see also Sec’y of Labor v. Cannelton Industries, 867 F.2d 1432, 1437 (D.C. Cir. 

1989). In Moses, the Commission held that section 105(c)(1) was intended to encourage miner 

participation in enforcement of the Mine Act by protecting them against “‘not only the common 

forms of discrimination, such as discharge, suspension, demotion . . . but also against the more 

subtle forms of interference . . . .”’ Id. at 1478 (quoting S. Rep. No. 95-191, at 36, Leg. Hist. at 

624). 

A. Continental Violated Sections 103(f) and 105(c)(1) of the Mine Act. 

Section 103(f) of the Mine Act plainly requires an operator to compensate a miners’ 

representative with the pay she would have received had she not exercised her statutory rights. 

30 U.S.C. § 813(f) (“[s]uch representative of miners who is also an employee of the operator

shall suffer no loss of pay during the period of his participation.). Our plain reading of the 

section is fully consistent with Congress’ stated intention “to encourage [ ] miner participation” 

by providing “full compensation.” S. Rep. No. 95-181, 95th Cong., 1st Sess, at 28-29 (1977); see 

also Magma Copper Co., 1 FMSHRC 1948, 1951-52 (Dec. 1979) (“[t]he purpose of the right to 

walkaround pay granted by section 103(f) is [] clear: to encourage miners to exercise their right 

to accompany inspectors.”). 

We affirm the Judge’s primary analysis and his holding that Continental interfered with 

miner representative Otten’s statutory rights in violation of section 105(c)(1) when it paid her at 

a lower hourly rate than she would have otherwise earned. 44 FMSHRC at 149. 

The Judge’s decision is supported by Roger L. Stillion v. Quarto Mining Co., 12 

FMSHRC 932 (May 1990), in which the Commission concluded that the failure to compensate a 

miners’ representative as required by section 103(f) demonstrates that the operator discriminated 

45 FMSHRC Page 261
against the miners’ representative. The Commission considered whether the miner was entitled 

to compensation pursuant to section 103(f) and whether the right was violated. Id. at 937-39. 

Notably, the Commission did not find it necessary to consider whether the operator was 

motivated by discriminatory animus.6 

We also find the Judge’s analysis to be fully consistent with Sec’y obo Richard Truex v. 

Consolidation Coal Co., 8 FMSHRC 1293, 1299 (Sept. 1986). In Truex, the Commission found 

that the operator interfered with the miners’ representative’s section 103(f) rights in violation of 

section 105(c)(l). As in Stillion, the Commission in Truex did not base its liability findings on 

whether the operator was motivated by discriminatory animus. The Commission therefore 

ordered backpay, finding “Consol's attempt to use the Contract as a defense [to be] irrelevant.” 

Id. 

The record in this case is clear. Continental does not dispute that Otten would have 

earned a higher wage-rate on the shifts at issue if she had not exercised her walkaround rights 

and instead accepted the available mobile equipment assignment. In fact, Heather Ames testified 

that she instructed the payroll specialist to retract the pay upgrades “[b]ecause [Otten] was 

accompanying the MSHA [inspector] during an inspection.” Vol. II, Tr. 58-62, 67-68, 72. She 

further testified Otten “could say she didn’t want to go on the inspection. There are other miners’ 

reps.” Vol II, Tr. 79-80. Furthermore, in an email to her colleague Ames wrote “if Tara [Otten] is 

unavailable for a job, she is not available – no different than if she was on vacation or in the store 

house filling in, she would not get the upgrade because junior people below her received the 

upgrade. She chooses to work with MSHA.” J Ex. 7-j. Ames confirmed, in a written statement to 

MSHA, that Continental would not pay wage upgrades to miners’ representatives when a less 

senior employee receives the upgrade. J Ex. 3.7 Because Otten exercised her statutory 

walkaround rights, she suffered an adverse action (loss of pay in violation of section 103(f)).8 

6

 The parties’ arguments addressing animus and the Pasula-Robinette test are addressed 

infra in subsection B. 

7

 Our dissenting colleague claims that the Secretary submitted only “inconclusive” 

evidence regarding animus to support a finding that the violation was motivated by protected 

activity. Slip op. at 14. While our analysis as set forth herein does not turn on an evaluation of 

Continental’s motivation, we note the record evidence described above. 

8

 Also, our dissenting colleague claims the majority has arbitrarily dismissed a statutorily 

required element of section 105(c) by ignoring the operator’s motivation. Slip op. at 14-15. 

However, what the statute explicitly requires is causality. 30 U.S.C. § 815(c)(1) (no person shall 

discriminate against a miner “because of” the exercise of a statutory right). None of the cases 

cited by our colleague support his proposition that the definition of “because” must inherently 

require a showing of motivation. Slip op. at 14. Of course, in standard discrimination cases

motivation has traditionally played a critical role in establishing causality. However, as discussed 

further below, we find that discriminatory motivation is not required to establish causality under 

the conditions of this case. The record clearly shows that this miner suffered a loss expressly 

prohibited by the Act because of her exercise of an expressly protected right. A finding of 

discrimination is consistent with the statutory requirements of section 105(c). 

45 FMSHRC Page 262
The operator argues that it complied with the Mine Act’s requirements when it paid Otten 

her Laborer rate of pay for time served as a miners’ representative. We disagree. Otten suffered a 

prohibited “loss of pay during the period of [her] participation in the inspection” when she was 

paid less for the shifts than she would have otherwise earned. 30 U.S.C. § 813(f). Continental 

“unfairly penalize[d] the miner for assisting the inspector” contradicting the legislative purpose 

of the section.9 S. Rep. No. 95-181 at 28-29, Legis. Hist. at 616-17. 

Additionally, Continental argues that according to the CBA, Otten was only entitled to 

the wage upgrade provided that she actually operated the mobile equipment. In the event of a 

conflict between the terms of the parties’ agreement and the requirements of a federal statute, the 

statutory requirements take precedence. See Barrentine v. Arkansas-Best Freight System, Inc., 

450 U.S. 728, 740-41 (1981) (“[W]e have held that congressionally granted FLSA rights take 

precedence over conflicting provisions in a collectively bargained compensation arrangement.”); 

see also W.R. Grace and Co. v. Local Union 759, 461 U.S. 757, 766 (1983) (citing Hurd v. 

Hodge, 334 U.S. 24, 34-35 (1948) (“As with any contract, however, a court may not enforce a 

collective bargaining agreement that is contrary to public policy.”)). 

To the extent that the CBA may conflict with section 103(f), the requirements of section 

103(f) control. See also R. Mullins v. Beth-Elkhorn Coal Corporation, 9 FMSHRC 891, 899 

(May 1987) (citations omitted) (“we do not decide cases in a manner which permits parties’ 

private agreements to overcome mandatory safety requirements or miners’ protected rights; nor 

do we unnecessarily thrust ourselves into resolution of labor or collective bargaining disputes.”). 

Any agreement between mine operators and unions must meet or exceed the statutory floor.10

 Continental maintains that it did not discriminate against Otten or otherwise interfere 

with her rights, noting that during the same payroll processing period it also retracted the wage 

upgrades for Laborers that had performed carpentry work. Continental maintains it interpreted 

the CBA’s zipper clause as canceling all informal prior pay practices, including its informal 

practice of providing pay upgrades for working as a miners’ representative or as a carpenter. The 

analogy Continental draws between miner’s representatives and carpenters is inapposite, 

performing carpentry work, in and of itself, is not a protected activity. Again, section 103(f) 

protects the pay of miners performing the statutory role of a “miners’ representative” and is not 

superseded by any private agreement. 

9

 Continental also alleges that previous decisions of Commission Administrative Law 

Judges support its position. To the contrary, we conclude that the Judge’s decision in this matter 

is consistent with previous decisions of our Judges. In any event, Commission Judge’s decisions 

are not precedential according to Commission Procedural Rule 69(d), 29 C.F.R. § 2700.69(d). 

10 Furthermore, the evidence demonstrates that on at least one occasion Otten was not 

assigned to operate mobile equipment, but was provided with upgraded pay because a junior 

Laborer was assigned to operate mobile equipment. The CBA provides Continental management 

with the discretion to grant unilateral wage increases. Vol II, Tr. 93-94. 

45 FMSHRC Page 263
B. A Showing of Discriminatory Animus is Not Required to Establish a Violation of 

Section 103(f). 

Continental argues that it did not interfere with Otten’s section 103(f) rights in violation 

of section 105(c)(1) because it was not motivated by a discriminatory animus. Continental argues 

that the Secretary must demonstrate that Otten’s loss of pay was motivated by the exercise of 

protected activity in accordance with the Pasula-Robinette test for discrimination, in order for 

Continental to be liable for the alleged violations of the Mine Act. 11

The Secretary likewise argues that a finding of discriminatory animus is a necessary 

element of a claim. However, the Secretary maintains that the Judge’s alternative analysis – 

finding that Continental was motivated by Otten’s exercise of protected rights when it retracted 

the pay upgrades – is supported by substantial evidence. The Secretary relies upon Sec’y of 

Labor on behalf of Glover v. Consolidation Coal Co., 19 FMSHRC 1529 (Sept. 1997), in which 

the Commission applied the Pasula-Robinette test for discrimination and found that the operator 

violated section 105(c)(1) when it transferred the positions of two miners’ representatives in 

retaliation for the exercise of their rights. 

We disagree with Continental’s and the Secretary’s contentions. As established supra, the 

Commission has not required that a miners’ representative demonstrate that a loss of pay was 

motivated by discriminatory animus to prove unlawful interference with section 103(f) rights. In 

fact, permitting the operator to provide an affirmative defense – as Continental seeks to do – 

would be inconsistent with the operator’s duty to comply with the explicit “no loss of pay” 

requirement in section 103(f) of the Mine Act. See Sec’y on behalf of Truex, 8 FMSHRC at 1299 

(finding the operator’s affirmative defense “irrelevant”). 

11 According to the Pasula-Robinette framework, in order to establish a prima facie case 

under section 105(c) the complainant must establish that the adverse action was motivated in any 

part by the complaint’s exercise of protected activity. Sec’y on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds 663 F.2d 1211 (3rd Cir. 

1981); Sec'y on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 

1981). An operator may defend affirmatively against a prima facie case by proving that it was 

also motivated by the miner's unprotected activity and would have taken the adverse action for 

the unprotected activity alone. See Robinette, 3 FMSHRC at 817-18; Pasula, 2 FMSHRC at 

2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 

1987) (applying Pasula-Robinette test). 

The Ninth Circuit has rejected the Pasula-Robinette test in Thomas v. CalPortland Co., 

993 F.3d 1204, 1209-10 (9th Cir. 2021). Thomas has been remanded to the Commission and 

remains a pending matter on our docket. Continental’s Hannibal mine is located in the Eighth 

Circuit, and thus the Ninth Circuit ruling is not binding. Nevertheless, the Judge found that the 

loss of pay to Ms. Otten would not have occurred “but for” her engaging as a miners’ 

representative during a walkaround inspection. We conclude that the Judge’s findings under his 

alternative analysis are supported by substantial evidence, reasonable inferences drawn from the 

record, and proper consideration of relevant testimony. 

45 FMSHRC Page 264
We also find Glover to be readily distinguishable. Transfers of positions are not generally 

prohibited under the Mine Act. A transfer is unlawful, however, when motivated by 

discriminatory animus in violation of section 105(c)(1). In contrast, the “loss of pay” while 

exercising rights as a miners’ representative is always expressly prohibited by section 103(f) of 

the Mine Act, regardless of intent. 30 U.S.C. § 820(a) (“The operator of a coal or other mine in 

which a violation occurs of a mandatory health or safety standard or who violates any other 

provision of this chapter, shall be assessed a civil penalty by the Secretary . . . .”); see also Nally 

& Hamilton Enterprises, 38 FMSHRC 1644, 1650 (July 2016) (citations omitted) (“Because the 

Mine Act is a strict liability statute, an operator is liable if a violation of a mandatory safety 

standard occurs, regardless of the level of fault.”). 

Accordingly, consistent with Commission precedent, we find that a showing of animus is 

not required to establish a violation of section 103(f) and that Pasula-Robinette is not the 

appropriate test for evaluating a miners’ representative’s claim of an unlawful loss of pay in that 

regard.12 

C. We Affirm the Judge’s Penalty Assessment. 

Continental additionally argues that the Judge erred in assessing a $17,500 civil penalty. 

Section 110(i) of the Mine Act, 30 U.S.C. § 820(i), provides that the Commission is authorized 

to assess all penalties under the Mine Act and that such penalties must reflect consideration of 

six statutory factors.13 The Commission’s review of a Judge’s discretionary penalty assessment is 

a two-step process. First, the Commission reviews the Judge’s findings on the penalty factors for 

the support of substantial evidence and, second, the Commission reviews the Judge’s overall 

assessment for an abuse of discretion. Solar Sources I, 42 FMSHRC 181, 208 (Mar. 2020). 

Here, the Judge found that the operator’s previous violation history, size of the mine and 

the size of the controlling entity were all moderate. 44 FMSHRC at 159. However, the Judge 

concluded that the negligence and gravity factors were significant. Id. at 158. 

Continental asserts that the Judge erred in his assessment of the mine’s violation history, 

failing to account for its lack of a prior history of section 105(c) violations. Continental is 

incorrect. It is well established that the Commission considers the operator’s general violation 

history, not just its history of similar violations, when assessing a penalty. See Solar Sources 

Mining, LLC, 43 FMSHRC 367, 373 (Aug. 2021) (citations omitted). 

Continental also argues that the Judge erred in his gravity finding. The operator wrongly 

maintains that the Judge should have considered its reliance on the CBA as a mitigating factor. 

12 We make no other finding regarding the Pasula-Robinette test in this proceeding. 

13 [1] the operator’s history of previous violations, [2] the appropriateness of such penalty 

to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the 

effect on the operator’s ability to continue in business, [5] the gravity of the violation, and [6] the 

demonstrated good faith of the [operator] charged in attempting to achieve rapid compliance 

after notification of a violation. 30 U.S.C. § 820(i). 

45 FMSHRC Page 265
We conclude that the Judge’s findings are supported by the record and that the Judge did 

not otherwise abuse his discretion in assessing a civil penalty. See American Coal Co. v. 

FMSHRC, 933 F.3d 723, 726 (D.C. Cir. 2019), aff’g 40 FMSHRC 1011 (Aug. 2018) (“we 

review the ALJ’s penalty calculation for an abuse of discretion.”); see also Donovan ex rel. 

Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983) (Commission may not 

“substitute a competing view of the facts for the view [an] ALJ reasonably reached.”); Island 

Creek Coal Co., 15 FMSHRC 339, 347 (Mar. 1993) (“[i]t would be inappropriate for the 

Commission to reweigh the evidence ... or to enter de novo findings based on an independent 

evaluation of the record.”). 

Accordingly, we affirm the penalty assessed by the Judge. 

III. 

Conclusion 

For the foregoing reasons, we affirm the Judge’s decision in all respects. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

45 FMSHRC Page 266
Commissioner Althen, concurring in part and dissenting in part:

I. 

The record supports a loss of pay in violation of section 103(f). 

I concur that the Complainant, Tara Otten, suffered a loss of pay due to not receiving an 

upgrade in pay to the status of a Mobile Equipment Operator (“MEO”) on the days in question. I 

emphasize that nothing is illegal or improper in paying a miner for the work the miner performs 

on a given day. There is no legal deficiency with Article VI Section 9 of Continental Cement 

Company, LLC’s (“Continental”) contract with the United Steel Workers of America. 

Here, however, the record permits no conclusion other than that Otten would have 

worked as an MEO on the days in question and, therefore, would have received upgraded MEO 

pay for those days. She was entitled to MEO pay for her time as a walkaround representative on 

those days. 

II. 

The Commission should overrule the discredited Pasula/Robinette standard and apply the 

“because” standard used in federal discrimination statutes. 

 Section 103(f) does not provide a private right of action for a miner to recoup a loss of 

wages. The miner must rely upon the Mine Safety and Health Administration (“MSHA”) to 

recover lost pay. 

Two routes are available to MSHA. It may cite the operator for a violation under section 

104(a), 30 U.S.C § 814(a), for causing a loss of pay. For 103(f) citations issued under section 

104(a), a strict liability section, MSHA must only prove a loss of pay from the miners’ 

representative’s participation in the inspection. A section 104(a) citation is straightforward and 

does not require proof of action motivated by protected activity. See Magma Copper Co. v. Sec’y 

of Labor, 645 F.2d 694 (9th Cir. 1981). 

Alternatively, MSHA or a miner may file a discrimination complaint under section 

105(c). 30 U.S.C. § 815(c). Section 105(c) requires proof of motivation “because of” protected 

activities. As relevant, Section 105(c)(1) of the Mine Act provides: 

No person shall discharge or in any manner discriminate against or 

cause to be discharged or cause discrimination against or otherwise 

interfere with the exercise of the statutory rights of any miner . . . 

[1] because such miner . . . has filed or made a complaint under or 

related to this Act . . . or [2]because such miner . . . is the subject of 

medical evaluations and potential transfer under a standard 

published pursuant to section 101 or [3] because such miner . . . has 

instituted or caused to be instituted any proceeding under or related 

to this Act or has testified or is about to testify in any such

45 FMSHRC Page 267
proceeding, or [4] 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) (emphasis added). 

The Secretary asserted a section 105(c) violation in this matter. By doing so, the 

Secretary accepted an obligation to prove its claim under the statute’s requirements.1

 

The Commission’s traditional standard of proof for a section 105(c) discrimination 

violation has been the Pasula-Robinette test. Sec’y of Labor on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981); 

Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). 

Under that test, the complainant or Secretary establishes a prima facie case of discrimination by 

proving (1) that the miner engaged in a protected activity and (2) that the adverse action was 

motivated in any part by the protected activity. The operator may raise an affirmative defense by 

claiming it would have taken the same action for a reason other than protected activity. Despite 

its years as the Commission standard, it is now clear the Pasula-Robinette test is invalid.

In 2021, the United States Court of Appeals for the Ninth Circuit invalidated the PasulaRobinette test, holding: “Section 105(c)’s unambiguous text requires a miner asserting a 

discrimination claim under Section 105(c) to prove but-for causation.” Thomas v. CalPortland 

Co., 993 F.3d 1204, 1211 (9th Cir. 2021). The CalPortland case focused squarely upon section 

105(c). The Commission must now apply that standard in cases within the Ninth Circuit. 

However, more compelling is that the circuit court’s holding is correct. Indeed irrefutable. In 

CalPortland, the circuit court cited numerous Supreme Court decisions. Id. at 1209-10, citing

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013); Gross v. FBL Fin. Servs., 557 U.S. 

167 (2009). Those cases and CalPortland compel the application of the but-for standard to 

section 105(c) cases. 

As the inevitable result of CalPortland, Judges now hedge their decisions by referring to 

Pasula-Robinette and CalPortland. Continued citation to Pasula-Robinette will inevitably result 

in parties and Commission Judges trying, arguing, and deciding cases under two standards. In 

this case, the Judge added a tagline in the decision that he would have reached the same result 

1

 The majority finds the Administrative Law Judge (“ALJ”) grounded his decision on the 

basis that it was unnecessary to prove the statutorily required elements of discrimination. The 

majority errs in accepting and endorsing the Judge’s error. It is startling to read the majority 

describe section 105(c) as a strict liability section to which intent does not apply. The concept of 

strict liability in the Mine Act is derived from the section 110(a) of the Act (30 U.S.C. § 820(a)) 

which authorizes the imposition of civil penalties for violations of mandatory health or safety 

standards. See Allied Prod. Co. v. FMSHRC, 666 F.2d 890, 893 (5th Cir. 1982). I disagree with 

the majority’s attempt to expand strict liability into section 105(c) proceedings, beyond what 

Congress clearly intended. Moreover, if strict liability is to be incorporated into section 105(c) 

proceedings, the majority’s decision must be read to only do so in the limited context of a section 

103(f) contest. To do otherwise would present a major change in long-standing Commission 

precedent and fly directly in the face of the plain letter of the law. 

45 FMSHRC Page 268
under the but-for standard. Such pro forma references to but-for causation may result, as in this 

case, in a minimized finding of but-for causation without meaningful discussion. The 

Commission should forego whistling Pasula-Robinette in the wind and formally adopt the proper 

standard. The correct issue on this appeal is whether Continental's insufficient payment was 

“because” of animosity toward the exercise of walkaround rights. In other words, we should 

apply the but-for standard and decide the issue based on whether the preponderance of the 

evidence shows protected activity-motivated discrimination. 

However, application of Pasula-Robinette, in this case, would not change the result 

because that test requires proof of causation based upon protected activity. Here, the majority 

fails to apply any causation standard without explaining why an explicit element of section 

105(c) does not apply to section 103(f) cases. 

In 2016, the Commission rejected a challenge to Pasula-Robinette. Sec’y of Labor on 

behalf of Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914, 1919-21 (Aug. 2016). 

However, times change, and Commission Judges now plot a course between two tests. It is time 

for the Commission to recognize the inevitability of the proper test for discrimination and adjust 

its test to the correct “but for” standard. 

III. 

The record does not contain substantial evidence that Otten received her regular pay 

“because” she acted as a miners’ representative. Continental’s human resource manager 

decided the appropriate pay “because” of Continental’s collective bargaining agreement 

with Otten’s union. 

A. Relevant facts 

 Continental operates the Hannibal Underground Mine in Missouri. The United Steel 

Workers of America represents the hourly employees at the plant. The Union negotiated a 

collective bargaining agreement (“CBA”) with Continental for union-represented employees, 

including Otten. As with most union contracts, the CBA created classified employee positions 

and established pay rates for each classification. 

 Two classifications were Laborer and Mobile Equipment Operator. Laborers are hourlyrate employees who perform primarily general clean-up work throughout the plant, lawn 

work, labor work involved in refractory replacement in kiln and cooler, snow removal from 

roadways and sidewalks, and painting. A Laborer is expected to be capable of operating 

various types of mobile equipment as needed. Of course, the work of an MEO is to 

exclusively operate mobile equipment. 

The CBA pay rates provide slightly more than $3.00 per hour additional pay for 

employees classified as MEO workers. The CBA, however, also provides that management 

could require a Laborer to perform MEO work. When a Laborer does so, the CBA requires 

Continental to pay the MEO classification wage rate, stating, “[w]hen work of a higher paid 

45 FMSHRC Page 269
classification is required of any employee, he/she shall receive the higher rate of pay for a 

minimum of four hours.” J. Ex. 4, at 14. Under the CBA, this upgraded pay depended upon the 

performance of MEO work. If a Laborer performed MEO work for less than four hours, the 

Laborer received the higher rate for four hours. If the employee performed MEO work for more 

than four hours, the employee received MEO pay for the entire day.2

 Otten’s default classification was Laborer. She also was a miners’ representative. All 

agree that she frequently performed MEO work and received the upgraded pay according to the 

CBA when she performed such work. Continental paid her according to her classification as a 

Laborer when not performing such work. 

On the dates in question, Otten had or would have had the opportunity to perform MEO 

work at the MEO pay rate. On those dates, however, an MSHA inspector was present at the 

mine, and Otten chose to exercise her walkaround rights with the MSHA inspector. It is 

undisputed that based upon experience, Otten would have taken that opportunity for MEO work 

had she not chosen to exercise the right of a miners’ representative. 

 Initially, Otten received pay at the rate of an MEO for the days in question. Subsequently, 

a Continental Human Resources specialist, Heather Ames, reviewed Continental’s pay records 

including those of Otten and two other union-represented workers. According to Ames, she alone 

decided to apply the terms of the CBA. Ames found that Otten did not perform MEO work on 

certain days and, therefore, was not entitled to upgraded MEO pay under the CBA. On the same 

day, Ames reversed the paid upgrade for the two other employees because the upgrade pay 

provision did not apply to them. Ames testified that she later found that she had made a mistake 

for certain days and then partially reinstated the upgrades for Otten. 

 The evidence establishes that Ames made these pay decisions based on the terms of the 

CBA. Ames testified that she, and she alone, decided to reduce the pay and then partially 

upgrade the pay of Otten and other workers. No witness or evidence impeached Ames’ testimony 

that she made these decisions. 

2 Article VI, Section 9 of the CBA provides: 

When work of a higher paid classification is required of any 

employee, he/she shall receive the higher rate of pay for a 

minimum of four hours. If the employee exceeds four hours of 

work at the higher classification, then he/she shall receive the 

higher rate of pay for the entire day. When work of a lower paid 

classification is temporarily required of any employee, he/she 

shall receive his/her regular straight time hourly rate of pay. 

J Ex. 4, at 14; Jt. Stip. 23.

45 FMSHRC Page 270
B. The Judge’s Decision 

The Judge’s decision initially recognized that Pasula-Robinette is the Commission’s test 

for discrimination. He correctly found that under that test, a miner proves discrimination “when 

[she] proves by a preponderance of the evidence that the miner (1) engaged in protected activity, 

(2) suffered an adverse action, and (3) the adverse action was motivated in any part by that 

protected activity.” 44 FMSHRC 121, 148 (Feb. 2022) (ALJ). 

The Judge acknowledged that “it is true that the Commission has applied the PasulaRobinette framework in [s]ection 103(f) walkaround cases.” Id. at 149. Immediately after that, 

however, the Judge asserted that he did not need to apply the third factor (adverse action 

motivated in any part by that protected activity) of Pasula-Robinette to find a violation of section 

103(f). 

The Judge concluded, “the Court does not believe that the Secretary must show, per the 

Pasula-Robinette framework, that Continental’s refusal to pay Otten the wage upgrades was 

motivated by Otten’s walkaround activities.” Id.3

 Incredibly, the majority now accepts the 

Judge’s deeply flawed reasoning and states violations of section 105(c) need not contain any 

element of expressly required causation. 

 

Finally, after a brief discussion of the penalty factors, the Judge imposed a penalty of 

$17,500. 

C. To Prevail on a Section 105(c) accusation, the Secretary Must Prove Three Factors: 

Protected Activity, Adverse Action, and Adverse Action Because of the Protected 

Activity. The Majority Errs by Disregarding the Necessity for Finding Causation 

by Protected Activity. 

 The majority correctly, albeit implicitly, decides that the Secretary did not prove the 

violation of section 103(f) was “because of protected activity.” The Secretary introduced 

inconclusive evidence to suggest that certain supervisory employees of Continental may have 

harbored ill feelings toward Otten due to other safety activities. However, the record clearly 

demonstrates that Ames, and Ames alone, decided to pay Otten Laborer wages per the CBA. 

As the Judge fleetingly acknowledged but then abandoned, motivation is critical for 

finding a violation of section 105(c). Indeed, all three elements—protected activity, adverse 

action, and motivation by the protected activity—are expressly articulated in the statute and are 

necessary to establish discrimination. Indeed, one might conclude that motivation is the lynchpin 

3

 It may be that the Judge felt and Commission mistakenly feels a need to find a violation 

of section 105(c) for Otten to prevail on the section 103(f) claim or that prevailing on the section 

103(f) automatically required a finding of discrimination. That would be incorrect. MSHA’s 

filing of the discrimination claim was sufficient to put both the right to pay and the occurrence of 

discrimination before the Commission. A supported finding of a failure to meet the requirements 

of section 103(f) may then be made separately even when the Secretary does not prove 

discrimination under section 105(c). 

45 FMSHRC Page 271
of section 105(c) violations. Each day miners raise issues related to safety, thereby engaging in 

protected activity. Each day operators take adverse actions regarding miners. Section 105(c) 

crucially mandates that discrimination occurs only when the protected activity motivates the 

adverse action. 

It is in this respect that the majority departed from the law. The majority declares by fiat 

that a clearly expressed requirement for a section 105(c) violation does not apply if the case 

involves section 103(f). The majority does not provide any support or explanation for arbitrarily 

dismissing an explicit factor for a violation. Nowhere does the majority explain why the express 

language of section 105(c) unambiguously requiring motivation does not apply in a section 

103(f) context. 

 

Circuit court cases uniformly recognize that “because” in section 105(c) means “because” 

and, therefore, a complainant must establish a motivational nexus between the protected activity 

and adverse action. See generally CalPortland Co., 993 F.3d at 1208-1211; Harrison County 

Coal Co. v. FMSHRC, 790 Fed. Appx. 210, 213 (D.C. Cir. 2019); Con-Ag, Inc. v. Sec’y of 

Labor, 897 F.3d 693, 700-02 (6th Cir. 2018); Cumberland River Coal Co. v. FMSHRC, 712 F.3d 

311, 318 (6th Cir. 2013); Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 88 (D.C. 

Cir. 1983). 

The importance of section 103(f) neither requires nor suggests tarring Continental with a 

discrimination tag based upon Ames’ belief that, per the CBA, Otten was only entitled to 

Laborer’s wages. The majority finds discrimination by removing the necessary element of 

motivation from a section 105(c) violation, even though the Secretary concedes it is necessary. 

In disclaiming the express requirement of the Mine Act, the majority does not cite the 

words of the Act, legislative history, or any policy requisite. Without meaningful analysis, the 

majority would establish that a violation of section 103(f) is a per se violation of section 105(c). 

In doing so, it primarily relies on one case. Stillion v. Quarto Mining Co., 11 FMSHRC 523 

(Apr. 1989) (ALJ), aff’d 12 FMSHRC 932 (May 1990).4

 

4

 The majority mischaracterizes the facts and decision in Sec’y on behalf of Truex v. 

Consolidation Coal Co., 8 FMSHRC 1293 (Sept. 1986). The Commission in Truex, expressly 

included “motivation” as part of the proof for a section 105(c) violation. Further, it explained 

that an operator could defend a 105(c) case by showing the action was not motivated by 

protected activity. Id. at 1297. The facts were that the safety supervisor knew Truex was a 

miner’s representative and that he intended to attend a meeting with an MSHA inspector who 

would be arriving momentarily. Nonetheless, the safety supervisor ordered Truex to report to 

work at a location that would have prevented Truex from accompanying the inspector. Truex 

was forced to take unpaid leave in the form of “union business” to attend the meeting and was 

then barred from working for the rest of his shift. The operator claimed that, pursuant to the 

union contract, a miner could not be paid for a partial shift if he had claimed to be on “union 

business.” The Commission found that the contract was irrelevant to the defense of the section 

105(c) allegations, not because a union contract could not be used to demonstrate the operator’s 

motivation, but because the discrimination happened before the operator invoked the contractual 

 (continued...) 

45 FMSHRC Page 272
Quarto does not support the majority “per se” concept. At best, the ALJ and Commission 

decisions are cursory. To the extent the decisions recite facts, it is clear the failure to pay arose 

from the operator’s animus to the walkaround. The operator refused to pay a miner any money 

“because” he did the walkaround with an MSHA inspector. Moreover, the Commission did not 

even discuss the standards for finding a section 105(c) violation or any issue of motive or 

causation. 

In Quarto, a miner alleged violations of sections 103(f) and 105(c). The ALJ decision 

does not discuss Pasula-Robinette or any elements of section 105(c). Having not discussed 

section 105(c) in his decision, the ALJ did not discuss any requirements for finding a section 

105(c) violation. The entirety of the ALJ’s finding is: “Respondent violated § 103(f) of the Act 

by refusing to pay Complainant his regular rate of pay for his time spent accompanying a federal 

mine inspector on October 6, 7, and 8, 1987.” 11 FMSHRC at 527. The Judge did not make any 

finding concerning section 105(c) or its necessary elements. Had the Judge considered 

motivation, he would have found it in the case. Further, the Judge did not impose any penalty 

upon the operator nor invite MSHA to do so. See Stillion v. Quarto Mining Co., 11 FMSHRC 

875 (May 1989) (supplemental decision on damages). 

Upon review, the Commission mistakenly stated at the outset of its decision that the 

Judge had found discrimination. However, the Commission’s conclusion of law did not find a 

section 105(c) violation. The Commission’s concluded “that in the circumstances of the present 

case Stillion had a right to walkaround pay under section 103(f).” 12 FMSHRC at 939. As with 

the ALJ’s decision, the Commission’s decision did not discuss the essential elements of 

discrimination, Pasula-Robinette, or motive or causation, let alone dispense with motivation as

an element of section 105(c). Further, the Commission also did not impose a penalty. 

Therefore, Quarto supports a section 103(f) violation. However, Quarto does not reach a 

legal conclusion that a section 105(c) violation occurred, does not discuss the requirements for a 

section 105(c) violation, would have found motivation under the facts of the case, and does not 

support a claim of per se violations. 

The majority expressly recognizes that the Secretary argues that a finding of 

discriminatory animus is a necessary element of a claim. Slip Op. at 7. The Secretary does not 

contend that violations of section 103(f) are per se violations of section 105(c). The Secretary’s 

failure to make such an argument is an appropriate recognition that section 105(c) requires 

motivation (causation) arising from protected activity. The Secretary’s position is correct. 

4

 (...continued) 

terms and was thus irrelevant. Id. at 1299. There is no resemblance to this case in which the 

operator did not take any action to prevent the miner’s exercise of walkaround rights and paid the 

miner for the time spent on the walkaround. 

45 FMSHRC Page 273
IV. 

The Facts Suggest Only a Small Penalty. 

The Mine Act sets forth six factors in setting penalties: (1) effect on the operator’s ability 

to continue in business; (2) an appropriate reduction for demonstrated good faith of the person 

charged in attempting to achieve rapid compliance after notification of a violation; (3) the 

appropriateness of such penalty to the size of the business of the operator charged; (4) the 

operator’s history of previous violations; (5) whether the operator was negligent; and (6) the 

gravity of the violation. 30 U.S.C. § 820(i). 

Factors one and two play no role in this case. The proposed penalty would not affect the 

ability of the operator to continue in business. The statute allows mitigation of penalties when an 

operator acts rapidly to achieve compliance. In this case, believing in the legality of its use of the 

CBA, Continental continued to make payments in the same fashion after the Secretary filed the 

complaint. The failure to capitulate immediately to the Secretary’s legal position with which an 

operator in good faith disagrees is not a reason to increase the penalty. Regarding size, the 

Hannibal mine is a mid-size operation, so size does not weigh heavily for or against a particular 

penalty. 

Despite a long operational history, Continental has no history of a prior finding of a 

violation of section 103(f). The present case is a one-off in which the operator incorrectly 

thought it should use the CBA. Of course, even in discrimination cases, the Commission also 

considers the operator’s history of safety violations. However, strict liability violations of 

operational safety rules have little to do with a tendency of an operator to be motivated to 

retaliate against a miner based on protected activity. Certainly, the absence of even one prior 

violation weighs heavily in favor of a low penalty. 

It is difficult to know what to make of the ALJ’s brief discussion of negligence. The ALJ 

cites a Commission decision to propose that the negligence issue is whether the operator engaged 

in intentional conduct in committing the violation rather than whether it intended to discriminate. 

44 FMSHRC at 157, citing Sec’y on behalf of Poddey v. Tanglewood Energy, Inc., 18 FMSHRC 

1315, 1319 (Aug. 1996) (Commissioners Marks and Riley).5

 Continental’s actions were 

intentional to the extent Ames’ decision to apply the CBA was intentional. In Tanglewood 

Energy, the Commission found that, although the conduct was intentional, the actions constituted 

low negligence. Id. at 1319-20. Continental, through Ames, had an objective, albeit mistaken, 

belief that it should apply the CBA to Otten’s work. Continental’s legal position was untenable. 

However, there is no evidence that Continental took the position in bad faith or, in taking an 

incorrect position, it failed to exercise reasonable care. Thus, substantial evidence supports that 

negligence is a minor factor in the penalty consideration. 

5

 In determining negligence, the Commission considers whether an operator has met its 

duty of care. The Commission considers the actions of a reasonably prudent person familiar with 

the mining industry, the relevant facts, and the purpose of the regulation. Leeco, Inc., 38 FMSHRC 

1634, 1637 (July 2016). In short, did the operator act with the prudence a reasonable operator 

would have exercised under the same or similar circumstances. 

45 FMSHRC Page 274
Interestingly, Tanglewood has greater relevance to the gravity consideration than 

negligence. In Tanglewood, the Commission rejected the Secretary’s argument that every section 

105(c) violation must be presumed to have a chilling effect. Id. at 1320. As with any violation, 

the gravity of section 105(c) violation must be based on the evidence. 

Objective and subjective evidence determine gravity. Id. at 1321. The subjective element 

is the chilling effect upon miners that rests upon “the testimony of the complainant or other 

miners.” Id., citing Sec’y on behalf of Johnson v. Jim Walter Res., Inc., 18 FMSHRC 552, 558 

(Apr. 1996). From an objective standpoint, the question is whether there is evidence that the 

incident “reasonably tended to discourage miners from engaging in protected activities.” Id. 

In this case, the Secretary presented no evidence of any subjective or objective 

discouragement of such activity. The Secretary did not present any objective data or 

measurement showing any adverse effect upon Continental’s miners. Otten was the only hourly 

miner who testified, and her continued performance of walkaround activities demonstrates that 

she was not discouraged. Thus, there is no evidence of a subjective chill upon miners. In sum, 

there is no evidence that this one-time occurrence had any subjective or objective adverse effect 

on Continental’s miners’ willingness to exercise their statutory rights. As with all factors of a 

penalty consideration, we must base the decision regarding gravity on evidence and not a Judge’s 

desire to punish an operator. The gravity factor is low without any subjective or objective 

evidence of a chilling effect. 

In summary, the effect on the ability to stay in business and mitigation through abatement 

are irrelevant here. Continental’s size is moderate. The absence of any prior violation cuts in 

favor of a low penalty. Ames’ actions were intentional in that she intended to do what she did but 

unintentional in any sense of a knowing violation of section 105(c). Finally, there is no 

subjective or objective evidence of a chilling effect. So, the gravity is low. 

V. 

Conclusion. 

Here, the majority’s unwarranted decision to delete a fundamental element from section 

105(c) is more than a wrong result. The decision muddies proof of section 105(c) violations 

when the disparity between Pasula-Robinette and CalPortland already troubles the water. It 

creates uncertainty regarding whether there are other situations in which a majority might 

substitute its own wishes over that of Congress and decide by fiat to alter the statute’s 

requirements. For the first time, it creates a per se violation of section 105(c). It fails to explain 

why a section 103(f) violation automatically violates section 105(c), even though finding a 

section 103(f) violation vindicates the miner’s rights. 

 

45 FMSHRC Page 275
The Commission should find a violation of section 103(f). The evidence does not show 

Continental’s actions were because of protected activity. Continental did not violate section 

105(c). The violation of section 103(f) warrants no or only a minor penalty. 

I concur with the violation of section 103(f) and respectfully dissent from the finding of a 

violation of section 105(c) and the assessed penalty. 

/s/ William I. Althen 

William I. Althen, Commissioner 

 

45 FMSHRC Page 276
Emily O. Roberts, Esq. 

Senior Trial Attorney 

Office of the Solicitor 

U.S. Department of Labor, 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Roberts.Emily.O@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Scott.Emily.T@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Thomas. R. Chibnall, Esq. 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 

7700 Bonhomme Ave., Suite 650 

St. Louis, MO 63105 

Thomas.Chibnall@ogletree.com 

R. Lance Witcher, Esq. 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 

7700 Bonhomme Ave., Suite 650 

St. Louis, MO 63105 

Lance.Witcher@ogletree.com 

45 FMSHRC Page 277
Melanie Garris 

Civil Penalty Compliance Division Chief 

U.S. Department of Labor 

Office of Assessments 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520 N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Administrative Law Judge William B. Moran 

Federal Mine Safety & Health Review Commission, 

1331 Pennsylvania Avenue, NW, Suite 520 N 

Washington, DC 20004-1710 

WMoran@fmshrc.gov 

45 FMSHRC Page 278
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

May 2, 2023 

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

ORDER 

BY THE COMMISSION: 

 

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

§ 801 et seq. (2018) (“Mine Act”). On October 28, 2022, the Commission received from Consol 

Pennsylvania Coal Company, LLC (“Consol”) three motions seeking to reopen penalty 

assessments that had become final orders of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a).1

Under section 105(a), an operator who wishes to contest a proposed penalty must notify 

the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If 

the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

1995). 

1

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

docket numbers LAKE 2023-0011, LAKE 2023-0012, and LAKE 2023-0013 because they 

involve similar factual and procedural issues. 29 C.F.R. § 2700.12. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

CONSOL PENNSYLVANIA 

 COAL COMPANY, LLC 

 Docket No. PENN 2023-0011 

A.C. No. 36-07230-559759 

Docket No. PENN 2023-0012 

A.C. No. 36-07416-559760 

Docket No. PENN 2023-0013 

A.C. No. 36-10045-559765 

45 FMSHRC Page 279
The Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicates 

that one proposed assessment (No. 000559759) was delivered to the operator on August 6, 2022, 

and two proposed assessments (Nos. 000559760, 000559765) were delivered to the operator on 

August 8, 2022. The assessments became final orders of the Commission on September 6, 2022, 

and September 7, 2022, respectively. 

On August 29, 2022, MSHA received three partial payments from the operator related to 

citations that the operator chose not to contest on the three proposed assessments. Consol asserts 

that it also mailed its three notice of contest packets on August 15, 2022. MSHA sent Consol one 

delinquency notice related to Proposed Assessment No. 000559759 on October 21, 2022, and 

two delinquency notices related to Proposed Assessment Nos. 000559760 and 000559765 on 

October 24, 2022, indicating that MSHA had not received the operator’s contests. 

It appears that the operator’s notices of contests were not mailed via certified mail or 

other trackable mail service. The Secretary does not oppose the requests to reopen but urges the 

operator to take steps to ensure that future penalty contests are timely filed in accordance with 

MSHA’s regulations at 30 C.F.R. § 100.7 and the Commission’s procedural rules. 

 

45 FMSHRC Page 280
Having reviewed Consol’s request and the Secretary’s response, we find that the notices 

of contest were not timely received due to inadvertence and that the operator promptly filed 

motions to reopen upon receiving the delinquency notices.2

 In the interest of justice, we hereby 

reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings 

pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty 

within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/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 

 

2

 We strongly encourage Consol to take necessary steps to ensure that future penalty 

contests are timely filed in accordance with the Commission’s procedural rules. Similar requests 

to reopen untimely contests may not be favorably considered. 

45 FMSHRC Page 281
Distribution: 

Marcy Presto 

Consol Energy, Inc. 

275 Technology Drive, Suite 101 

Canonsburg, PA 15317-6506 

marcypresto@consolenergy.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 282
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 16, 2023 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). On August 16, 2022, the Commission received from GCC 

Permian a motion seeking to reopen a penalty assessment that had become a final order of the 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on May 26, 2022, and became a 

final order of the Commission on June 27, 2022. GCC Permian asserts that the notice of contest 

was timely mailed on June 6, 2022, however the safety manager failed to verify that the correct 

address was used, and the paperwork was accidentally sent to MSHA’s penalty collections office 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

GCC PERMIAN 

 

Docket No. CENT 2022-0218 

A.C. No. 41-00060-555004 

45 FMSHRC Page 283
in St. Louis along with the payment of the uncontested citations. The Secretary does not oppose 

the request to reopen, but urges the operator to take steps to ensure that future penalty contests 

are timely filed. 

 Having reviewed GCC Permian’s request and the Secretary’s response, we find that the 

failure to properly file the notice of contest was the result of inadvertent administrative error. We 

urge the operator to take steps to ensure that such errors do not recur. Nevertheless, in the 

interest of justice, we hereby reopen this matter and remand it to the Chief Administrative Law 

Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 

29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for 

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/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 

 

45 FMSHRC Page 284
Distribution: 

Matthew Lawson 

GCC Permian 

P.O. Box 1547 

Odessa, TX 79760 

mlawson@gcc.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 285
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 16, 2023 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). On September 2, 2022, the Commission received from Morton 

Salt, Inc., a motion seeking to reopen a penalty assessment that had become a final order of the 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on July 22, 2022, and became a 

final order of the Commission on August 22, 2022. Morton Salt explains that mail is transferred 

from the operator’s P.O. Box to the mine site on regularly scheduled days. The operator asserts it 

mistakenly believed the 30-day deadline for contesting the proposed assessment was calculated 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

MORTON SALT, INC. 

Docket No. CENT 2022-0237 

A.C. No. 16-00970-558634 

45 FMSHRC Page 286
from receipt at the mine site (July 26) rather than receipt at the P.O. Box (July 22). Morton Salt 

believed it had timely contested the proposed assessment when it mailed its notice of contest on 

August 23, one day after the assessment became final. The operator adds that it will correct its 

process to ensure notices of contest are sent within 30 days from receipt at the post office. The 

Secretary does not oppose the request to reopen, but urges the operator to take steps to ensure 

that future penalty contests are timely filed. 

 Having reviewed Morton Salt’s request and the Secretary’s response, and in light of the 

brief nature of the delay, the operator’s prompt filing of a motion to reopen, and the operator’s 

stated intent to correct the issue, we find that the operator’s failure to timely contest the proposed 

assessment was the result of excusable mistake. In the interest of justice, we hereby reopen this 

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

the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.1 Accordingly, 

consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 

days of the date of this order. See 29 C.F.R. § 2700.28. 

/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 

 

1

 Morton Salt’s motion to reopen specifies seven citations the operator wishes to contest. 

The Secretary subsequently modified and issued a new proposed assessment for one of those 

citations. The proposed assessment was timely contested and assigned to an Administrative Law 

Judge (Docket No. CENT 2023-0009). Accordingly, Morton Salt’s motion is moot with respect 

to Citation No. 9649715. 

45 FMSHRC Page 287
Distribution: 

Donna Vetrano Pryor, Esq. 

Husch Blackwell LLP 

1801 Wewatta Street, Suite 100 

Denver, CO 80202 

donna.pryor@huschblackwell.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov

45 FMSHRC Page 288
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May16, 2023 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). On August 26, 2022, the Commission received from Hanson 

Aggregates Pennsylvania, LLC (“Hanson Aggregates”) a motion seeking to reopen a penalty 

assessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on June 24, 2022, and became a 

final order of the Commission on July 25, 2022. Hanson Aggregates claims it was dealing with 

various high-level staff disruptions at the time, including the transfer of the operations manager, 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

HANSON AGGREGATES 

PENNSYLVANIA, LLC 

Docket No. PENN 2022-0124 

A.C. No. 36-00029-556370 

45 FMSHRC Page 289
the hiring of a new safety manager, and the temporary absence of the plant manager. As a result, 

the proposed assessment was briefly overlooked and the notice of contest was filed one day late, 

on July 26. The Secretary does not oppose the request to reopen, but urges the operator to take 

steps to ensure that future penalty contests are timely filed. 

 Having reviewed Hanson Aggregate’s request and the Secretary’s response, we find that 

the brief delay in filing the notice of contest was the result of excusable neglect arising from 

unusual levels of staff disruption. In the interest of justice, we hereby reopen this matter and 

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

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with 

Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of 

this order. See 29 C.F.R. § 2700.28. 

/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 

 

45 FMSHRC Page 290
Distribution: 

Margaret S. Lopez, Esq. 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 

One PPG Place, Suite 1900 

Pittsburgh, PA 15222 

Margaret.lopez@ogletree.com 

Philip K. Kontul, Esq. 

Ogletree, Deakins, Nash, Smoak & Stewart P.C. 

One PPG Place, Suite 1900 

Pittsburgh PA 15222 

Philip.kontul@ogletree.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 291
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 16, 2023 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). On August 1, 2022, the Commission received from Wayne J. 

Sand & Gravel, Inc. (“WJSG”) a motion seeking to reopen a penalty assessment that had become 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on April 10, 2022, and became a 

final order of the Commission on May 10, 2022. WJSG asserts it never received the mailed 

proposed assessment and notes the operation’s remote location. After receiving a delinquency 

notice on June 28, 2022, the operator requested a copy of the proposed assessment on July 19, 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

WAYNE J. SAND & GRAVEL, INC.

Docket No. WEST 2022-0295 

A.C. No. 04-01915-551153 

45 FMSHRC Page 292
and submitted its notice of contest (by fax) the same day. The Secretary does not oppose the 

request to reopen but urges the operator to take steps to ensure that future penalty contests are 

timely filed. 

Tracking data from the United States Postal Service indicates the assessment package 

was delivered to a California Post Office and marked available for pickup on March 18, 2022, 

then sent back to its facility of origin on April 4. The Secretary asserts the assessment was finally 

delivered on April 10, but was not signed for. It is unclear whether WJSG’s failure to receive the 

assessment package was the result of a USPS mail processing error (e.g. incorrect address) or 

operator error (e.g. failure to regularly check a P.O. Box). 

We strongly encourage the operator to enact procedures to ensure mail is timely received 

despite the operation’s remote location, such as regularly checking P.O. Boxes and ensuring 

personnel are available to sign for packages. Future motions to reopen may not be granted where 

a notice of contest is untimely due to inadequate mail receipt procedures. 

 

45 FMSHRC Page 293
 Ultimately, however, having reviewed WSJG’s request and the Secretary’s response, we 

find that the delay in this instance was excusable. We note that, due to a mail processing error, 

WSJG did not timely receive the proposed assessment. Furthermore, WSJG promptly acted to 

file its notice of contest once it became aware of the issue. In the interest of justice, we hereby 

reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings 

pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty 

within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/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 

 

45 FMSHRC Page 294
Distribution: 

Brett Jones 

Wayne J. Sand & Gravel, Inc. 

P.O. Box 27 

Moorpark, CA 93020-0027 

Fax: 805-523-1805 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 295
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

May 18, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

DUININCK, INC. 

Docket No. LAKE 2022-0058 

A.C. No. 21-03663-540443 

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

 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2018) (“Mine Act”). The record reveals that the proposed assessment was delivered 

to the Operator on August 30, 2021. On September 22, 2021, the Mine Safety and Health 

Administration (“MSHA”) received full payment of $1,359.00 for all three citations by a check 

dated September 9, 2021. A “To Whom It May Concern” letter from the operator accompanied 

the check. The signatory to the letter stated that he was an experienced and knowledgeable safety 

professional. The letter expressly disclaims any intention to contest the citation and demonstrates 

the payment of the penalty was a conscious payment by a knowledgeable operator. 

 Subsequently, the operator filed a letter requesting reopening. Even there, however, the 

operator disclaims any desire to contest the citation. Instead, it asked for an opportunity to 

discuss its safety practices with MSHA. 

 30 C.F.R. § 100.6(a) provides MSHA with sole discretion to grant a request for a 

conference where issues may be discussed. The Commission grants reopening in accordance 

with the factors set forth in Rule 60(b) of the Federal Rules of Civil Procedure. See 29 C.F.R. 

2700.1(b); Fed. R. Civ. P. 60(b). The operator does not allege a mistake, inadvertent conduct, 

excusable neglect, or other reason justifying relief that led to its payment and the proposed 

45 FMSHRC Page 296
penalty assessment becoming a final order. The motion reflects that the operator made the 

deliberate choice to pay the penalties after receiving the penalty assessment rather than to contest 

the penalties before a Commission Administrative Law Judge. 

Accordingly, the request to reopen is DENIED.1

/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 

 

1

 We further note that the Commission cannot order MSHA to have a conference with an 

operator. 

45 FMSHRC Page 297
Distribution: 

Terry P. Keenan 

Safety Manager 

Duininck Inc. 

408 6th Street 

Prinsburg, MN 56281 

Terry.Keenan@duininck.com 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

scott.emily.t@dol.gov 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

45 FMSHRC Page 298
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges 

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

Washington, DC 20004 

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

May 2, 2023 

DECISION APPROVING SETTLEMENT 

Before: Judge Moran 

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

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

Motion to Approve Settlement and has set forth the factual basis for the proposed penalty. The 

Respondent has agreed to the proposed penalty amounts. As reflected in the table below, the 

originally assessed amount for the citations at issue was $19,503.00 and the proposed settlement 

amount is $13,773.00. 

Citation/Order 

MSHA’s 

Proposed 

Penalty 

Settlement 

Amount Other modifications to citation/order 

9258018 $774.00 $349.00 Modify Negligence to Low 

9580404 $840.00 $407.00 Modify Negligence to Low 

9258023 $774.00 $349.00 Modify Negligence to Low 

9257972 $563.00 $234.00 

Modify Persons Affected to 1, down from 

7 affected, asserting only one miner would 

be expected to slip and fall; 

58% reduction in the penalty

9580420 $234.00 $234.00 None 

9580423 $1,358.00 $610.00 Modify Negligence to Low; 55% 

reduction in penalty

9580424 $407.00 $407.00 None 

9580425 $349.00 $133.00 Modify Injury or Illness to Unlikely, Modify 

Significant and Substantial Designation to No

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

IRON CUMBERLAND, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. PENN 2023-0007 

A.C. No. 36-05018-564091 

Mine: Cumberland Mine 

45 FMSHRC Page 299
9256357 $1,156.00 $1,156.00 None 

9256358 $1,156.00 $1,156.00 None 

9256359 $563.00 $407.00 Modify Persons Affected to 5 

9580430 $1,358.00 $1,358.00 None 

9581721 $1,471.00 $296.00 

Modify Injury or Illness to Unlikely, 

Modify Significant and Substantial 

Designation to No; 80% reduction in 

penalty

9580436 $2,573.00 $1,156.00 Modify Negligence to Low; 55% reduction 

in penalty

9257973 $481.00 $215.00 Modify Negligence to Low; 55% reduction 

in penalty

9580439 $273.00 $133.00 Modify Negligence to Low; 51% 

reduction in penalty

9581722 $3,841.00 $3,841.00 None 

9580802 $518.00 $518.00 None 

9580803 $518.00 $518.00 None 

9580806 $296.00 $296.00 None 

TOTAL $19,503.00 $13,773.00 

The Court has considered the Secretary’s Motion and approves it solely on the basis of 

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

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

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

interpretation of section 110(k) of the Mine Act. Under those decisions, the Court’s role in 

reviewing settlement motions is circumscribed by those decisions, with the result that 

reasonable inquiry by the Court is not permitted. 

For example, were it permitted to make inquiry, the Court would have questions 

regarding the claim in the motion with respect to Citation No. 92580404, as it implies that the 

inspector would be obligated to have seen the cited hazards shortly after the preshift 

examination, a patently unreasonable proposition. The motion asserts that the missing sliding 

guard and the damaged cutting wheel both could have occurred subsequent to the preshift exam. 

That both issues would exist pushes plausibility. Inspectors, aware that the absence of a preshift 

exam violation has been frequently invoked of late by mine operators, should consider whether a 

citation may be in order for inadequate preshift exams. 

In fact, to his credit, the issuing inspector for a different violation, Travis Hamrick, did 

just that, citing the mine operator in Citation No. 9258023, for failing to note multiple hazardous 

conditions along the 75 Headgate longwall belt. That alleged, but now-admitted, inadequate 

preshift was associated with the issuance of two other citations flowing from the inadequate 

exam. Though the inspector’s citation made it clear that all three citations were related, the 

45 FMSHRC Page 300
operator asserts again that the inspector did not observe the conditions at the time of the preshift 

exam itself. The Court lauds the MSHA inspectors for their efforts in protecting miners. 

There are other, troublesome, results in the motion. For example, in Citation No.

9580423, the now-admitted violation involved a failure to provide a clear travelway of at least 24 

inches on both sides of the 76 Tailgate belt. The standard invoked, 30 C.F.R. §75.1403, the 

statutory ‘Other Safeguards’ provision, has been cited 82 (eighty-two) times at this mine in the 

past two years. The motion’s resulting 55% reduction in the penalty is based upon designating 

the negligence from moderate to low. But low negligence anticipates “considerable mitigating 

circumstances.” The justification offered is that the mine had placed a pump in the area. If that 

is sufficient to constitute considerable mitigation, that is a low bar to meet such a classification. 

Although the Court could discuss other reductions in this motion, as a last example, 

Citation No. 9581721 involved a now-admitted violation of the mine’s ventilation plan. That 

plan, Inspector Stephen A. Wilt noted, requires that all sprays on the longwall stage loader are to 

have a minimum opening of 3/32 inch, but the sprays at the discharge end of crusher in this 

instance only had openings of 1/16 inch. In short, the spray openings were more than two times 

insufficient. 

However, the Secretary buys into the assertion that it’s a small difference and as such it 

would not appreciably contribute to overexposure of dust. Motion at 6. That’s an interesting take 

from the Secretary of Labor, as her role is to protect miners from dust and given that the 

minimum opening is to be 3/32. It strikes the Court as disconcerting that the Secretary’s 

representative would essentially agree that the more than half shortcoming for the sprays is no 

big deal. That may not be so comforting to the miners who have to inhale the dust. 

And it is problematic that the Secretary’s attorney in effect says failure to comply with 

the minimum requirements imposed by MSHA transforms the violation from reasonably likely to 

unlikely to result in injury, and this even though it is indisputable that lung impairments for 

miners is an incremental consequence of dust exposure and that this mine has been cited 43 

(forty-three) times for violating this standard in the past two years. Such a stance, to this Court, 

seems inimical to the Secretary’s role of protecting the safety and health of miners. It also seems 

fair to ask whether reducing the regularly assessed penalty from $1,471.00 down to a mere 

$296.00, runs counter to Congress’ clearly expressed intent that penalties are to be of sufficient 

magnitude to cause mine operators to calculate that compliance is less expensive than noncompliance. In the Court’s view, a $296.00 penalty favors the latter approach. 

Accordingly, despite the Court’s expressed misgivings over some of particulars in these 

settlements, it is duty-bound to follow the Commission’s decisions on the subject of settlements. 

For that reason, per the Commission’s decisions on the scope of a judge’s review authority of 

settlements, the “information” presented in this settlement motion is sufficient for approval. 

WHEREFORE, the motion for approval of settlement is GRANTED. 

It is ORDERED that Citations listed in the table above are modified per that table and that the 

amounts for each citation are similarly reflected. 

45 FMSHRC Page 301
It is further ORDERED that, within 30 days of this order, the operator pay the penalty of 

$13,773.00, a sum reduced from the original regular assessment amount of $19,503.00, and 

representing a 29% overall reduction in the penalty. Upon receipt of payment, this case is 

DISMISSED. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

Robert S. Wilson, Esq., Office of the Solicitor, Division of Mine Safety and Health, 201 12th

Street South, Suite 500, Arlington, Virginia 22202-5450. Email: Wilson.robert.s@dol.gov 

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

15222. Email: hmoore@fisherphillips.com 

45 FMSHRC Page 302
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges 

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

Washington, DC 20004 

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

May 8, 2023 

DECISION APPROVING SETTLEMENT 

Before: Judge Moran 

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

section 105(d) of the Federal Mine Safety and Health Act of 1977. The Conference and 

Litigation Representative, (“CLR”), has filed a motion to approve settlement. The originally 

assessed amount was $35,274.00 and the proposed settlement is for $17,610.00, representing a 

50% overall reduction in the penalty for this docket. The changes are reflected in the 

following table: 

 

Citation/Order MSHA’s 

Proposed 

Penalty 

Settlement 

Amount 

Other modifications to citation/order 

9667158 $8,549.00 $3,841.00 Modify to Low negligence. 

55% reduction in the penalty 

9667164 $1,869.00 $378.00 Change “injury or illness” to “unlikely; 

and not significant & substantial. 

80% reduction in the penalty 

9667165 $1,869.00 $378.00 Change “injury or illness” to “unlikely; 

and not significant & substantial. 

80% reduction in the penalty

9667160 $296.00 $296.00 None 

9667161 $3,274.00 $1,472.00 Modify to Low negligence. 

55% reduction in the penalty

9667163 $661.00 $296.00 Modify to Low negligence. 

55% reduction in the penalty

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

LEHIGH CEMENT COMPANY, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. PENN 2022-0133 

A.C. No. 36-00190-562077 

Mine: Nazareth Plant I 

45 FMSHRC Page 303
9667166 $3,274.00 $3,274.00 None 

9667167 $4,884.00 $662.00 Change “injury or illness” to “unlikely; and not significant 

& substantial. Modify to Lost Workdays or Restricted 

Duty. 

86% reduction in the penalty 

9667168 $4,884.00 $3,274.00 Modify to Lost Workdays or Restricted Duty. 

33% reduction in the penalty 

9667169 $4,884.00 $3,274.00 Modify to Lost Workdays or Restricted Duty. 

33% reduction in the penalty

9667170 $169.00 $169.00 None 

9667171 $661.00 $296.00 Modify to Low negligence. 

55% reduction in the penalty

TOTAL $35,274.00 $17,610.00 50% (fifty percent) overall reduction in the penalty for 

this docket. 

Citation No. 9667165, issued by MSHA Inspector Kyle C. Stofko, invoked 30 C.F.R. § 

56.14112(a)(1). That standard speaks to the construction and maintenance of guards. It plainly 

and clearly provides that “[g]uards shall be constructed and maintained to (1) [w]ithstand the 

vibration, shock, and wear to which they will be subjected during normal operation.” Here, the 

inspector found “the tail guard of the 694 conveyor was missing the left and right guards. This 

condition has exposed the winged tail pulley to contact approximately 36" f[ro]m the catwalk. 

The rear guard was also bent and deformed creating jagged edges and openings to the tail 

pulley and is against the travelway. Guards shall be constructed and maintained to withstand the 

vibration, shock, and wear to which they will be subjected during normal operation. The area is 

accessed on a regular basis. This condition has existed for an unknown amount of time and 

exposes persons to permanently disabling injuries. Photos taken.” 

Penalty Petition at 18 (emphasis added). 

The Secretary requests Citation No. 9667165 be modified to unlikely and to delete the 

significant and substantial designation, resulting in an 80% reduction in the penalty from 

$1,869.00 to $378.00 for this now-admitted violation. The Secretary’s motion states that “the 

Respondent would present evidence that the tail section of 694 conveyor had guards in place to 

prevent accidental contact. The framework and location of the emergency stop cable would 

make contact with the moving machine parts difficult.” Motion at 3. (emphasis added). 

Analysis for Citation No. 9667165 with its 80% penalty reduction 

In violations such as this, the Court believes it should be able to view critical, likely 

dispute-ending, photographs. 

45 FMSHRC Page 304
Further, the Secretary should cease advancing irrelevant considerations on the subject of 

significant and substantial violations, as the United States Courts of Appeal have 

definitively addressed that subject. 

In putative support for reducing the penalty to $378.00, the Secretary offers two 

assertions: 1. the Respondent’s claim that the conveyor had guards in place and 2. the 

emergency stop cord would make contact with the moving machine parts difficult. 

 As to the first assertion, there is direct conflict with the inspector’s words that the tail 

guard of the 694 conveyor was missing the left and right guards. Further, the motion says 

nothing about the third hazard identified in the citation – that the rear guard was also bent and 

deformed, creating jagged edges and openings to the tail pulley and against the travelway. 

Inspector Stofko wisely took photographs of what he observed. The Court applauds the 

inspector’s taking photographs as they can provide useful supportive evidence. The Secretary 

makes no mention of the photographs in the motion. 

 Those photos would likely put to rest the issue of the guards, but the Commission 

forbids its front-line reviewers of settlement motions, its administrative law judges, from seeing 

the photographs. The federal courts have noted on numerous occasions that “[a] picture is 

worth a thousand words. A photograph, especially when coupled with text, can convey a 

powerful message.” Manzari v. Assoc. Newspapers, 830 F.3d 881 (9th Cir. 2016), HarrisBillups v. Anderson, 61 F.4th 1298, 1300 (11th Cir. 2023). However, none of the thousands of 

pictorial ‘words’ in this docket are available for the Court to see. 

 The second assertion, that the emergency stop cord would make contact with the moving 

machine parts difficult, is to have no part in the analysis as it is not to be considered in evaluating 

whether a violation is “significant and substantial.” Yet, despite the Court reminding the 

Secretary on many, many occasions that such irrelevancies are off the table, the Secretary 

continues to assert them. Whether out of brazenness or ignorance, the Court does not know why 

these continue. However, the federal courts of appeals have made it clear, rejecting such 

alternative safety measures as cognizable excuses. For example, in Knox Creek Coal, 811 F.3d 

148 (4th Cir. 2016), that Court observed: 

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

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

operators could pick and choose the standards with which they wished to 

comply.”...Such a policy would make such standards “mandatory” in name only. 

It is therefore unsurprising that other appellate courts have concluded that 

‘[b]ecause redundant safety measures have nothing to do with the violation, they 

are irrelevant to the [S & S] inquiry.’ Cumberland Coal, 717 F.3d at 1029; see 

also Buck Creek, 52 F.3d at 136. 

45 FMSHRC Page 305
Knox Creek Coal, 811 F.3d 148, 162 (4th Cir. 2016). 

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

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

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

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

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

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

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

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

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

Id. at 118-119. 

 As the D.C. Circuit further held in Consolidation Coal, 895 F3d 113 (D.C. Cir. 

2018): 

Ample Commission precedent holds that such considerations are irrelevant to the 

likelihood-of-injury analysis. That is because the third prong of the Mathies test 

focuses on the risk of injury created by the safety violation itself. See, e.g., 

Secretary of Labor v. Black Beauty Coal Co., 38 FMSHRC 1307, 1313–1314 

(2016) (“[T]he methane monitor, fire suppression system and devices, water 

sprays, CO monitors, fire brigade, breathing devices and turnout gear for 

firefighters are the sort of safety measures that we, and the appellate courts, have 

held to be irrelevant to the [significant and substantial] analysis under the Act.”); 

Secretary of Labor v. Brody Mining, LLC, 37 FMSHRC 1687, 1691 (2015) 

(“When deciding whether a violation is [significant and substantial], courts and 

the Commission have consistently rejected as irrelevant evidence regarding the 

presence of safety measures designed to mitigate the likelihood of injury resulting 

from the danger posed by the violation.”). The Commission itself has 

characterized this rule as “well settled.” Black Beauty Coal Co., 38 FMSHRC at 

1312. 

 

The same is true of miner precaution. Because the safety standards are there to 

protect miners, the hope or expectation that miners will protect themselves “is not 

relevant under the Mathies test.” Secretary of Labor v. Newtown Energy Inc., 38 

FMSHRC 2033, 2044 (2016); see also Secretary of Labor v. Eagle Nest, Inc., 14 

FMSHRC 1119, 1123 (1992) (“We reject the judge’s conclusion that the ‘exercise 

of caution’ may mitigate the hazard.”); Secretary of Labor v. United States Steel 

Mining Co., 6 FMSHRC 1834, 1838 (1984) (dismissing argument that the 

violation of a cable marking requirement was not reasonably likely to cause injury 

because miners could determine the identity of cables by process of elimination); 

Secretary of Labor v. Great W. Elec. Co., 5 FMSHRC 840, 842 (1983) 

(considering miner skill “ignores the inherent vagaries of human behavior”). As 

the Commission has pointed out, while “miners should, of course, work 

45 FMSHRC Page 306
cautiously, that admonition does not lessen the responsibility of operators, under 

the Mine Act, to prevent unsafe conditions.” Eagle Nest, Inc., 14 FMSHRC at 

1123. This reading also has the benefit of advancing the stated purpose of the 

Mine Act, which gives “the first priority and concern” to the “health and safety of 

its most precious resource—the miner,” in view of “an urgent need to provide 

more effective means and measures for improving the working conditions and 

practices in the Nation’s coal or other mines in order to prevent death and serious 

physical harm.” 30 U.S.C. § 801(a), (c). 

 

This court’s precedent is of the same mind. In Secretary of Labor v. Federal Mine 

Safety & Health Review Commission (Jim Walter Resources, Inc.), 111 F.3d 913 

(D.C. Cir. 1997), this court held that the Commission could not rely on 

aggravating facts external to a safety violation to conclude that the violation was 

of such nature as to significantly and substantially contribute to a hazard, id. at 

915. The Secretary’s reading of Mathies relies on this same principle in reverse: 

that circumstances external to a violation cannot be used to reduce the likelihood 

that harm will ensue. 

 

Likewise, in Cumberland Coal Resources, LP v. Federal Mine Safety & Health 

Review Commission, 717 F.3d 1020 (D.C. Cir. 2013), this court again interpreted 

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

surrounding circumstances. More to the point, the court held that “consideration 

of redundant safety measures,”—that is, “preventative measures that would have 

rendered both injuries from an emergency and the occurrence of an emergency in 

the first place less likely”—“is inconsistent with the language of [Section] 

814(d)(1).” Id. at 1028–1029.” 

Consolidation Coal, 895 F.3d 113,118-119 (D.C. Cir. 2018) 

 Yet, in the face of these decisions from the federal courts of appeals, the 

Secretary, in this instance through its non-attorney representatives – Conference 

Litigation Representatives, in this case, Mr. Ridley, habitually repeat such rejected bases. 

The Court places this continued use of such irrelevant claims squarely on the Secretary. 

As non-attorneys, the CLRs are fed these assertions, merely reciting what they are told by 

the Solicitor to include in the motions. It is unfair to foist their misstatements on them. 

They simply repeat what they are told to include in settlement motions. As such, the 

Secretary, through the façade of CLRs, cannot deliberately misstate or ignore case law 

that is unfavorable to her position. See, Teamsters v. B&M Transit, 882 F.2d 274, 280 

(7th Cir. 1989),1 Robb v Electronic Data, 990 F.2d 1253 (5th Cir. 1993), EEOC v Taylor 

Electric, 155 F.R.D. 180, (N.D. Ill. 1994), Home Casual Enterprise, 2013 WL 4821311 

(W.D. Wis. 2013) (citing Teamsters v. B&M Transit, Inc., at 280). 

1 Teamsters v. B&M Transit cites a host of other cases for this principle: a party is not

entitled to deliberately ignore or misstate case law that is unfavorable to its position. See Fred 

A. Smith Lumber Co. v. Edidin, 845 F.2d 750, 753 (7th Cir. 1988); Szabo Food Service, 823 F.2d 

at 1081. Id.

45 FMSHRC Page 307
Citation No. 9667164 

For Citation No. 9667164, MSHA Inspector Stofko found a nearly identical, and 

arguably worse, violation of the same guarding standard, 30 C.F.R. § 56.14112(a)(1). This nowadmitted violation was found on the same day as Citation No. 9667165, a mere 15 minutes 

earlier. 

The Inspector’s description of the condition informed: 

While inspecting the finish mill located at plant 1, it was found that the 633 

conveyor head section and the Gypbelt head section were both missing multiple 

guards for the pulleys and drive components. The conveyor head sections were 

directly stacked over each other. This area is accessed on a regular basis for travel 

greasing and maintenance. Guards shall be constructed and maintained to 

withstand the vibration, shock, and wear to which they will be subjected during 

normal operation. All unguarded hazards were less than 7' from the catwalk. 

These conditions have existed for an unknown amount of time. Persons injured as 

a result of the violation cited would receive permanently disabling injuries. 

Photos taken. 

Penalty petition at 16 (emphasis added) 

 Given the recounting above for Citation No. 9667165, one will not be surprised to read 

that the non-attorney representative for the Secretary offers the same serving for listing the 

gravity as ‘unlikely,’ and removing the significant and substantial designation: 

The Respondent would present evidence that the 633 conveyor and Gyp belt had 

guards in place to prevent accidental contact with the moving machine parts. The 

location is not easily accessible to miners. 

Motion at 3 (emphasis added). 

 There is no indication that the federal appeals courts have said that such improper 

considerations would be acceptable when presented in settlement motions, as opposed to 

a hearing, as such an inconsistent stance would not be logical. 

Analysis for Citation No. 9667164 

 Here too, the inspector’s photos would likely resolve the claim about the presence, or 

lack thereof, of guards. There is no point in recounting the problems identified by the Court 

regarding Citation No. 9667165 because they are same. While the Court is obligated to follow 

Commission case law and does so respectfully, it is of the view that if important photographs 

cannot be viewed by the Commission’s administrative law judges and if the Secretary is 

continued to be permitted to cite irrelevant considerations in settlements, forbidden by the federal 

courts of appeals, in those situations section 110(k) is at risk of becoming a phantom 

requirement. 

45 FMSHRC Page 308
 It is the Court’s best recollection that only one commissioner expressed that the 

Commission’s judges may not see photographs when reviewing settlements. These subjects were 

not expressly covered in the Commission’s decisions in The American Coal Co., 40 FMSHRC 

983 (Aug. 2018) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) for the standard to 

be applied by Commission administrative law judges when reviewing such settlement motions 

under the Commission’s interpretation of section 110(k) of the Mine Act. It is the Court’s hope 

that as these identified problems were not addressed in those decisions, and therefore not 

contemplated, the Commission may address them. 

Citation No. 9667167 

 This now-admitted violation of 30 C.F.R. § 56.20003(a), was also issued by MSHA 

Inspector, Kyle Stofko. The standard, titled, “Housekeeping,” provides that “Workplaces, 

passageways, storerooms, and service rooms shall be kept clean and orderly.” The citation stated 

in the condition or practice section: 

Located in the area of the 523 pan drive it was found that the floor contained 

spillage and various debris throughout the floor. This area was traveled through in 

the condition cited. The spillage was clinker up to 2" in size on the smooth floor. 

There was also found piled machine parts in areas that would require travel for the 

521disconnect. The affected floor area containing spillage was approximately 20' 

x 15'. Workplaces and passageways shall be kept clean and orderly. This 

condition has existed for an unknown amount of time and exposes persons to 

permanently disabling injuries. Photos taken. Standard 56.20003(a) was cited 

37 times in two years at mine 3600190 (36 to the operator, 1 to a contractor). 

Penalty petition at 22. (emphasis added). 

 The motion presents the following: 

 The Secretary requests Citation No. 9667167 be modified to unlikely and delete 

the significant and substantial designation with lost workdays or restricted duty. 

The Respondent would present evidence that the area of the 523-pan feeder is 

located under the stairwell and is not regularly traveled or in a regular travelway. 

The injury expected from a slip trip or fall to the floor would result in lost 

workdays or restricted duty. No miners were in the area at the time of the 

inspection. 

Motion at 4. 

Analysis for Citation No. 9667167 

 No stranger to the requirements of this “Housekeeping” standard, in this docket alone, 

fully eight (8) of the twelve (12) citations involved violations of 30 C.F.R. § 56.20003(a). 

All eight have been admitted to being violated. Not mentioned by the CLR in the motion, and 

45 FMSHRC Page 309
not disputed, is that the affected area had clinker up to 2 inches in size on the smooth floor and 

piled machine parts over the approximate 20 feet by 15 feet area. 

 The motion suffers from several significant deficiencies. The Respondent admits that the 

floor is traveled, contending only that it is not regularly traveled. The Respondent does not 

challenge that the floor contained spillage and various debris throughout the cited area, nor does 

it dispute the area involved, nor that the floor was smooth, nor that “[t]his area was traveled 

through in the condition cited.” With no basis for the claim, the Respondent asserts that the 

expected injury would be lost workdays or restricted duty. The MSHA inspector listed the 

expected injury as ‘permanently disabling.’ Further, the claim that an injury would be limited to 

lost workdays or restricted duty qualifies as a reasonably serious injury and consequently does 

not impair the inspector’s ‘significant and substantial’ designation. 

 In asserting that “[n]o miners were in the area at the time of the inspection,” the CLR, 

and therefore the Secretary who instructs the CLRs what to assert in settlement motions, ignores 

that the evaluation of whether a violation is ‘significant and substantial’ is measured by 

examining continued normal mining operations,without any assumptions as to abatement. 

Mach Mining, 809 F.3d 1259, 1267 (D.C. Cir. 2016). Thus, the remark that no miners were in 

the area at the time of the inspection is an impermissible consideration. “[I]njuries resulting in 

lost workdays or restricted duties ... establishes that the hazard contributed to by the violations 

would be reasonably likely to result in an injury of a reasonably serious nature as required by our 

S&S analysis.” Spartan Mining, 35 FMSHRC 3505, 3509 (Dec. 2013). The Secretary should 

instruct its non-attorney representatives to cease including impermissible factors in the 

evaluation of whether a violation is significant and substantial. 2 

2 This ignorance over the requirement that the ‘significant and substantial’ determination 

is to be measured by examining continued normal mining operations, without any assumptions as 

to abatement, and that alternative safety measures are not a cognizable excuse, is repeated 

throughout this settlement motion as noted below, with the bold text below showing the 

improperly asserted grounds which pertain to three of the other citations in this docket: 

For Citation No. 9667163, the Secretary requests it be modified to Low negligence. The 

Respondent would present evidence that the area of the 616-dust collector has been 

provided with hand tools and a suction hose that are readily available in case of any 

spillage. The miners have received training to clean the area prior to walking through the 

area. 

For Citation No. 9667168, the Secretary requests it be modified to lost workdays or 

restricted duty. The Respondent would argue that the injury expected from a slip, trip or fall in 

the area around the 522 elevator and the 521 conveyor would result in lost workdays or restricted 

duty. The area has a significant handrail around that outer edge of the elevated platform to 

prevent falling to levels below. 

For Citation No. 9667169, the Secretary requests that it be modified to lost workdays or 

restricted duty. The Respondent would present evidence that injury expected from a slip, trip or 

 (continued...) 

45 FMSHRC Page 310
Not to be ignored is Citation No. 9667158.

Citation No. 9667158 

This Citation for which the Secretary seeks a 55% reduction in the regularly assessed proposed 

penalty presented and extremely serious situation, for which none of the facts in the Condition or 

Practice section are disputed. That section states: 

While inspecting the level 5 sump pumps in the Plant 2 quarry it was found that 

safe access was not maintained. The access path from the water truck fill area to 

the pump control switch was found to be along the edge of the pond that had a 9' 

shear drop to the water below. The path was uneven with large loose rock and 

found to be within 3' of the edge of the pond. The pump control switch was also 

within 4' of the edge of the pond. The catwalk access for the pumps was found to 

be broken away from the anchoring block and secured with a come-along and a 

cable. This condition created a gap between the anchoring block ( That doubles as 

a flat access platform) and the catwalk. This access point also is located at the 

edge of the pond at the 9' drop to the water below. Safe means of access shall be 

provided and maintained to all working places. There was no personal floatation 

devices available in this area. The area is normally accessed by one person 

multiple times per day to fill the water truck and the pumps are accessed 2 times 

per month for pump maintenance. The conditions cited have existed since May of 

2022. Persons injured as a result of the violation cited would receive fatal injuries. 

Photos taken. 

Penalty Petition at 6. 

Here again, the diligent Inspector Stofko took photographs to record what he observed. 

 The Secretary’s Motion requests Citation No. 9667158 be modified to Low negligence. 

The Respondent would present evidence that a miner took it upon himself to use a frontend 

loader to modify the area without management’s knowledge. The condition was not reported to 

the mine operator on the workplace exams. 

Analysis for Citation No. 9667158 

 The multiple, extensive, hazards, as described above, cannot be brushed aside on the 

frontend loader operator because several of them could not have been created by the operation of 

that machine. Further, while the offered excuse could arguably be a basis for moderate 

2

 (...continued) 

fall on the 550-dust collector landing would result in lost workdays or restricted duty. The outer 

edge is provided with a significant handrail system consisting of a mid-rail and upper rail. 

To Inspector Stofko’s credit, he also took photos for each of these now-admitted 

violations he observed: Citation No. 9667163, Citation No. 9667168, and Citation No. 9667169. 

45 FMSHRC Page 311
negligence, a level of negligence the issuing inspector bestowed on the operator, it could not be a 

basis for low negligence as no ‘considerable’ mitigating circumstances were offered in the 

settlement for this violation. 

Conclusion 

 Despite the many troublesome aspects discussed in this decision, the Court is presently 

constrained when reviewing motions for approval of settlement. As such, it has considered the 

Secretary’s Motion and approves it solely on the basis of the Commission’s decisions in The 

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

994 (Aug. 2018) for the standard to be applied by Commission administrative law judges when 

reviewing such settlement motions under the Commission’s interpretation of section 110(k) of 

the Mine Act. Per the Commission’s decisions on the scope of a judge’s review authority of 

settlements, the “information” presented in this settlement motion is sufficient for approval. 

Accordingly, the motion to approve settlement is GRANTED, the citations contained in 

this docket are MODIFIED as set forth in the table above and Lehigh Cement Company, LLC is 

ORDERED to pay the Secretary of Labor the sum of $17,610.00 within 30 days of this order.3.

Upon receipt of payment, this case is DISMISSED. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

Norman C. Ridley, Conference and Litigation Representative, U.S. Department of Labor, 

MSHA, 178 Thorn Hill Road, Suite 100, Warrendale, PA 15086 ridley.norman@dol.gov

Philip K. Kontul, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, One PPG 

Place, Suite 1900, Pittsburgh, PA 15222 philip.kontul@ogletree.com

3 Penalties may be paid electronically at Pay.Gov, a service of the U.S. Department of the 

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

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers. It is vital to include Docket and A.C. Numbers when remitting payments. 

45 FMSHRC Page 312
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges 

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

Washington, DC 20004 

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

May 10, 2023 

DECISION APPROVING SETTLEMENT 

The Secretary has filed a Motion to Approve Settlement to which Respondent has agreed. 

I have considered the six statutory civil penalty criteria contained at § 110(i) of the Federal Mine 

Safety and Health Act of 1977, as amended, 30 U.S.C. § 820(i), and find that the proposed penalty 

amounts are appropriate. It is hereby ORDERED that: 

The penalty for the now-admitted violation in this case is reduced as follows: 

Citation/Order MSHA’s 

Proposed Penalty 

Settlement 

Amount 

Other modifications to citation/order

9566590 $3,546 $2,500 No modifications to the inspector’s 

evaluation but 30% reduction in 

penalty 

Citation No. 9566590 alleges a now-admitted violation of 30 C.F.R. §75.517. That standard is 

derived from a statutory provision. It is titled “Power wires and cables; insulation and 

protection,” and provides “Power wires and cables, except trolley wires, trolley feeder wires, and 

bare signal wires, shall be insulated adequately and fully protected.”

The issuing inspector described the condition or practice as follows: 

The cable on the #1 roof bolter located on the #2 section is not insulated adequately 

and fully protected, in that when checked there are 2 damaged places in the cable 

exposing the inner leads and one of the damaged areas has damage to one of the 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

TWIN STATE MINING, INC., 

 Respondent 

 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2023-0051 

A.C. No. 46-09496-565217 

Mine: Mine No. 43 

45 FMSHRC Page 313
inner leads exposing the inner bare wires to miners. Standard 75.517 was cited 26 

times in two years at mine 4609496 (26 to the operator, 0 to a contractor). 

Petition for civil penalty at 19. 

The citation was terminated upon the following action: 

Both affected areas have been cleaned and the damaged lead has been repaired and the cable 

has been taped up in both places. Id. (emphasis added). 

The Settlement Motion offers the following for the penalty reduction: 

The basis for the penalty reduction is that the Respondent claims it would present 

evidence at hearing that the bolter’s power cable was insulated adequately and fully 

protected upon the inspector’s arrival, and that the inspector himself instructed that 

the tape which served to protect and insulate the cable be removed. Thus, 

Respondent claims that but for the inspector requiring the removal of the tape which 

was insulating and protecting the inner leads of the cable, there would have been 

no inner leads exposed and no violation of section 75.517. In light of this dispute, 

the parties agree to disagree over the meaning of the potential evidence, and the 

proposed modifications are acceptable to the parties in lieu of the hearing process. 

Motion at 3. 

Analysis: 

Violations of this nature are especially serious. One need look no further than a 2022 

fatality attributable to this very standard. As stated in the MSHA fatal electrical accident report: 

“On September 1, 2022, at approximately 4:40 p.m., Kristofer Ball, a 33 year-old roof bolter 

with approximately 12 years of mining experience, was fatally injured when he contacted an 

energized 480-volt trailing cable. The accident occurred because the mine operator did not: 1) 

fully protect the roof bolting machine’s trailing cable, and 2) provide adequate task training for 

handling the roof bolting machine’s trailing cable.” 

https://www.msha.gov/data-reports/fatality-reports/2022/september-1-2022-fatality/final-report. 

 Other fatalities attributable to this standard have occurred. See, for example: 

https://arlweb.msha.gov/FATALS/2003/FTL03c21.htm and 

https://arlweb.msha.gov/readroom/FOIA/2007InternalReviews/Sago%20Internal%20Review%2

0Report.pdf

Although the Court can appreciate that the $1,046.00 reduction in the penalty must be 

balanced against the cost of proceeding to a hearing, if that is the test for settlement then many 

citations would be impacted by such a de facto policy. Further, a $1,000.00 plus penalty 

reduction is not a negligible sum. 

45 FMSHRC Page 314
 Here, it is noted that the Secretary does not buy into the Respondent’s claim and that is 

understandable because the inspector found two damaged areas and it does not stand to reason 

that inspectors would be in the business of creating violations, which is essentially the claim 

being lodged here. Something caught the inspector’s attention. It is unlikely in the extreme that 

an inspector would require an adequately insulated and fully protected cable to be untapped, only 

to have it retaped. 

 From the Court’s perspective, situations like this are more likely to be resolved if it had 

the ability to see the inspector’s notes. Based on the information available, it appears that 

Inspector Don L. Vest was diligently performing his inspection responsibilities, an observation 

the Secretary implicitly adopts. Also, as the Court has recently noted, photographs, where they 

can be safely taken in the underground coal mining environment, may dispel what may be 

frivolous claims by mine operators. Of course, the Court would need to have the ability to see 

such photographs, an option presently not available. 

Conclusion 

 Despite the Court’s concerns, as expressed above, review of settlement motions is presently 

circumscribed by Commission case law. As such, the Court has considered the Secretary’s Motion 

and approves it solely on the basis of the Commission’s decisions in The American Coal Co., 40 

FMSHRC 983 (Aug. 2018) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) for the 

standard to be applied by Commission administrative law judges when reviewing such settlement 

motions under the Commission’s interpretation of section 110(k) of the Mine Act. Per the 

Commission’s decisions on the scope of a judge’s review authority of settlements, the 

“information” presented in this settlement motion is sufficient for approval. 

 Accordingly, the motion to approve settlement is GRANTED, and Twin State Mining, Inc. 

is ORDERED to pay the Secretary of Labor the sum of $2,500.00 within 30 days of this order.1.

Upon receipt of payment, this case is DISMISSED. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

 

1 Penalties may be paid electronically at Pay.Gov, a service of the U.S. Department of the 

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

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers. It is vital to include Docket and A.C. Numbers when remitting payments. 

45 FMSHRC Page 315
Distribution: 

Andrenna H. Berggren, Office of the Regional Solicitor, 201 12th Street South, Arlington, VA 

22202, Berggren.Andrenna.M@dol.gov 

Justin K. Chandler and Jonathan Ellis, Steptoe & Johnson PLLC, STEPTOE & JOHNSON 

PLLC, Chase Tower, Seventeenth Floor, P.O. Box 1588, Charleston, WV 25326 

Justin.Chandler@steptoe-johnson.com and Jonathan.Ellis@steptoe-johnson.com 

45 FMSHRC Page 316
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 

FAX: 202-434-9949 

May 18, 2023 

DECISION APPROVING SETTLEMENT 

Before: Judge Moran 

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

Section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary’s Conference 

Litigation Representative (“CLR”), who is not an attorney, has filed a Motion to Approve 

Settlement. The Respondent has agreed to the modifications for the two violations in this matter 

and to the enormous reductions in the civil penalty amounts. The originally assessed amount for 

the now-admitted violations was $5,296.00 and the proposed settlement total amount is $698.00, 

(six hundred ninety-eight dollars). Individually, the two violations were each assessed at 

$2,648.00, with the reductions for each reduced to $349.00 (three hundred forty-nine dollars). 

These represent penalty reductions of 87% for each violation. Both violations, originally a 

(d)(1) citation and a (d)(1) order, have been modified to 104(a) citations. The modifications and 

the settlement amounts are summarized in the following table: 

Citation 

No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modification 

YORK 2023-0024 

9250036 $2,648.00 $349.00 

Modify Injury or Illness to Unlikely, 

Modify S&S Designation to No, 

Modify Type of Action to 104(a), 

Modify Type of Issuance to Citation 

87% reduction in penalty 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

MARYLAND ENERGY RESOURCES, 

LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. YORK 2023-0024 

A.C. No. 18-00780-567820 

Mine: Casselman Mine 

45 FMSHRC Page 317
9250037 $2,648.00 $349.00 

Modify Injury or Illness to Unlikely, 

Modify S&S Designation to No, 

Modify Type of Action to 104(a) 

87% reduction in penalty 

Total $5,296.00 $698.00 87% overall reduction in penalty 

Citation No. 9250036, issued as a (d)(1) order, alleged a now-admitted violation of 30 

C.F.R. § 77.503. Titled “Electric conductors; capacity and insulation,” it provides “[e]lectric 

conductors shall be sufficient in size and have adequate current carrying capacity and be of such 

construction that a rise in temperature resulting from normal operation will not damage the 

insulating materials.” 

 The MSHA Inspector who issued this (d)(1) order, Louis Bernatowicz, stated in the 

Condition or Practice section of the citation: 

The #12 AWG Electric Conductors for the 14 - 120 Volt A.C. Outlets in the Cart 

Charging Building are not sufficient in size and do not have adequate current 

carrying capacity and are not of such construction that a rise in temperature 

resulting from normal operation will not damage the insulating materials. 4 of 

the 14 outlets show evidence of overheating with damaged and melted plastic 

in the receptacles. 5 of the last 10 monthly electrical exams of the Cart 

Charging Building show receptacles were replaced.

This violation is an unwarrantable failure to comply with a mandatory standard. 

Petition for civil penalty at 9 (emphasis added). 

 To terminate the (d)(1) order: 

The 12 - 120 Volt AC outlets in the Cart Charging Building were rewired with 

#10 AWG copper wire. 30 Amp Ground Fault Circuit Interrupter Breakers labeled 

1 through 12 were also installed for each individual 3 or 4 prong 30 amp 

receptacle numbered 1 through 12. The 10 Battery Chargers in the Cart Charging 

Building are individually identified with numbers 11 through 14, and either 3 or 4 

prong 30 amp twist lock plugs were installed on all chargers except #11 which is 

out of service for output plug repair. A contractor was brought in to help rewire 

the building. The 2 240 Volt AC outlets labeled A and B that had extension cords 

running to 2 chargers will not be used due to the different plug types on the 

chargers. The 2 - 240 Volt AC extension cords running to the 2 - 120 volt AC 

battery chargers were removed. The Cart Charging Building was examined by an 

electrician and the exam recorded in the record book on the surface stating the 

charger circuits were upgraded to 30 amp from 20 amp. 

Id. at 10. 

 In the Motion, “Respondent contends that injury from the cited condition would 

not be reasonably likely to occur, asserting that the circuits were properly grounded and 

45 FMSHRC Page 318
therefore did not pose a shock hazard. The inspector noted that gravity evaluations were 

based on fire hazards resulting from the overheating of the inadequately sized conductors. 

However, the affected circuits were in an open, metal shed on the surface where little 

potential for fire propagation or entrapment existed.” Motion at 4. 

Citation No. 9250037, is related to the just described violation identified in Citation No. 

9250036. Issued as a (d)(1) citation, Citation No. 9250037 alleged a now-admitted violation of 

30 C.F.R §77.502. Titled “Electric equipment; examination, testing, and maintenance,” it 

provides that “Electric equipment shall be frequently examined, tested, and properly maintained 

by a qualified person to assure safe operating conditions. When a potentially dangerous condition 

is found on electric equipment, such equipment shall be removed from service until such 

condition is corrected. A record of such examinations shall be kept.” 

 For this now-admitted violation, issued 9 minutes before Order No. 9250036, Inspector 

Bernatowicz, stated in the Condition or Practice section of the citation: 

The Battery Chargers in the Cart Charging Building and the Shop are not 

frequently examined, tested, and properly maintained by a qualified person to 

assure safe operating conditions. No record of the examinations for the 14 

battery chargers in the Cart Charging Building and the Shop are being kept. 

The chargers have been in use at the mine for at least 8 months.

Standard 77.502 was cited 1 time in two years at mine 1800780 (1 to the operator, 

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

mandatory standard. 

Petition for civil penalty at 5 (emphasis added). 

To terminate the (d)(1) citation the following occurred: 

The Battery Chargers in the Cart Charging Building and the Shop have been 

individually identified with numbers 1 through 14. The Battery Chargers have 

been properly examined by a electrician with the results recorded in the book 

maintained on the surface. Battery Chargers 1 through 4 in the shop and charger 

number 11 in the Cart Charging Building have been removed from service with 

the plugs cut off and removed. Chargers 1 through 4 are in the shop and are 60 

amp output chargers with the nameplate tag identifying 2 of the chargers as 15 

amp max input and the other 2 chargers as 30 amp max input. The 3 other 60 amp 

output battery chargers at the mine in the Cart Charging Building have name plate 

tags identifying the max input as 30 amps. All of the nameplate tags on the 14 

battery chargers at the mine state input voltage as 110 Volt AC. The 2 battery 

chargers in the Cart Charging Building that were plugged into 220/240 Volt AC 

Receptacles were removed from service, plugs changed and plugged into 110/120 

Volt AC. The operator stated the 2 battery chargers in the Shop that were plugged 

into 220/240 Volt AC will be only be used on 110/120 Volt AC when they are 

placed back in service. All chargers now in service have new 30 amp rated plugs, 

and are plugged into 30 amp 110/120 Volt AC receptacles. 

45 FMSHRC Page 319
Id. at 7. 

 In the Motion “Respondent contends that injury from the underlying condition would not 

be reasonably likely to occur, asserting that the chargers were being examined weekly in 

conjunction with the corresponding vehicles, and that the circuits were properly grounded and 

therefore did not pose a shock hazard. The inspector noted that gravity evaluations were based on 

fire hazards (associated with the underlying conditions referenced in Order No. 9250036 ...) 

resulting from the overheating of the inadequately sized conductors. However, the affected 

circuits were in an open, metal shed on the surface where little potential for rapid fire 

propagation or entrapment existed.” Motion at 3. 

Analysis 

Both of these, now-admitted, violations involve serious hazards and required significant 

remedial actions to cure the hazards found by the diligent MSHA Inspector, Louis Bernatowicz. 

 Battery chargers can present serious safety and health risks. These hazards which are 

associated with the use, handling, storage, or when the battery is charging. They include: 

overheating, fire or explosion, electrical shock from battery chargers, thermal burns and 

exposure to corrosive battery electrolytes. https://weeklysafety.com/blog/batteries

 The charging of lead-acid batteries “can be hazardous. The two primary risks are from 

hydrogen gas formed when the battery is being charged and the sulfuric acid in the battery fluid, 

also known as the electrolyte. Hydrogen gas can lead to fires and explosions, and worker 

exposure to sulfuric acid can lead to chemical burns and other adverse health effects. Improper 

handling of batteries can also lead to shocks and electrocution, and battery charging can also 

result in the release of other harmful contaminants.” 

https://www.ccohs.ca/oshanswers/safety_haz/batterycharging.html#:~:text=The%20two%20primary%20risks%20are,and%20other%20adverse%20h

ealth%20effects. 

 The two conceded violations in this docket arose from the same circumstance, as they 

were discovered in the mine’s Cart Charging Building. 

The 104 (d)(1) Order, No. 9250036, Insufficient outlet size and inadequate current capacity 

 As noted, this now-admitted violation was issued for the failure to have electric 

conductors of sufficient in size and adequate current carrying capacity and for their failing to be 

of such construction so that a rise in temperature resulting from normal operation will not 

damage the insulating materials. The inspector’s condition or practice section of the Order details 

egregious violations. The inspector found that 29% (twenty-nine percent) of the outlets showed 

evidence of overheating with damaged and melted plastic receptacles. And the operator cannot 

claim ignorance of this problem, not with 5 of the last 10 monthly electrical exams resulting in 

receptacles being replaced. This speaks loudly to the issue of unwarrantable failure, supporting 

the inspector’s finding in that regard. 

45 FMSHRC Page 320
 These uncontested findings are in accord with Peabody Midwest, 44 FMSHRC 515 (Aug. 

2022), wherein the Commission reiterated its long-standing law “that unwarrantable failure 

means aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 

FMSHRC 1997, 2001 (Dec. 1987). Whether conduct is “aggravated” in the context of 

unwarrantable failure is determined by looking at the facts and circumstances of each case to see 

if any aggravating factors exist, such as the operator's knowledge of the existence of the 

violation, whether the violation was obvious, whether the violation posed a high degree of 

danger, the extent of the violative condition, the length of time that the violative condition has 

existed, the operator's efforts in abating the violative condition, and whether the operator has 

been placed on notice that greater efforts are necessary for compliance. See Manalapan Mining

Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 1346, 1350-57 (Dec. 2009).” 

Id. at 522 

 And though the foregoing is more than sufficient to support Inspector Bernatowicz’s 

evaluation in all respects, the remedial actions to bring the Cart Charging Building into 

compliance make this abundantly clear: 

The 12 - 120 Volt AC outlets in the Cart Charging Building were rewired with 

#10 AWG copper wire. 30 Amp Ground Fault Circuit Interrupter Breakers labeled 

1 through 12 were also installed for each individual 3 or 4 prong 30 amp 

receptacle numbered 1 through 12. The 10 Battery Chargers in the Cart Charging 

Building are individually identified with numbers 11 through 14, and either 3 or 4 

prong 30 amp twist lock plugs were installed on all chargers except #11 which is 

out of service for output plug repair. A contractor was brought in to help rewire 

the building. The [two] 240 Volt AC outlets labeled A and B that had extension 

cords running to 2 chargers will not be used due to the different plug types on the 

chargers. The [two] - 240 Volt AC extension cords running to the 2 - 120 volt AC 

battery chargers were removed. The Cart Charging Building was examined by an 

electrician and the exam [was thereafter] recorded in the record book on the 

surface stating the charger circuits were upgraded to 30 amp from 20 amp. 

Id. at 10. 

 In the Court’s opinion, the Respondent’s contention that injury from the cited condition 

would not be reasonably likely to occur, asserting that the circuits were properly grounded and 

therefore did not pose a shock hazard, is misguided and insufficient. The Court considers the 

excuse as an effort of misdirection from the many hazardous conditions found by the inspector. 

As described above, the hazards are not limited to fire. For that reason, the “metal shed” excuse 

does not address all the associated hazards. The Court finds the inspector’s determination of 

negligence as ‘high’ to be well-supported – the Order, the facts reported in it, which were not 

challenged, establishes this. 

45 FMSHRC Page 321
The 104 (d)(1) Citation, No. 9250037, Failure to frequently examine, test, and properly 

maintain electric equipment and to keep a record of such examinations 

 For this other, now-admitted violation, connected with the Cart Charging Building, 

Inspector Bernatowicz found an equally egregious violation, having determined that there was 

no record being kept of the examinations for the 14 battery chargers in the Cart Charging 

Building and the Shop. This was a long-standing violation, as the chargers had been in use 

at the mine for at least 8 months. The operator challenges none of these facts. Instead, it 

advances largely the same arguments it made for the first violation – that shock hazards and fire 

and entrapment were not reasonably likely. The operator adds the claim that the chargers were 

being examined weekly. However, one would have to respond that those exams, if they actually 

were being conducted, were, to be polite, grossly inadequate. 

 Behind the excuse presented by the operator, is the suggestion that this was only a 

recordkeeping violation. The Court does not adopt this perspective – recordkeeping is no secondclass requirement, impervious to significant and substantial and unwarrantable findings. If 

viewed as lesser safety and health requirements, their importance is seriously diminished. 

Recordkeeping requirements keep mine operators on the up and up. And here, the operator did 

not keep such required records for eight (8) months. It is no excuse to claim, as the operator does 

here, that the chargers were being examined weekly. Anyone could claim that. It is for that 

reason that the standard requires records of exams. Further, where recordkeeping is involved, the 

Court believes that the measure of what constitutes a “significant and substantial” violation 

should be flexible, much as exposure to dust is not measured by a one-time exposure. Similarly, 

where a mine operator habitually fails to comply with a recordkeeping requirement, under the 

continued normal mining operations principle, sooner or later such failures will produce a 

reasonable likelihood of a reasonably serious injury. If that is not true, then it would seem that all 

recordkeeping violations would not be S&S, a result which would eviscerate their importance. 

 Based on the information available to the Court and given that it is precluded from 

reasonable inquiry, it is clear that the (d)(1) citation and order were well supported. Further, 

penalty reductions of this order run counter to Congress’ express direction that penalties are to be 

of sufficient magnitude to make compliance the less expensive option over non-compliance. The 

$349.00 penalties in the motion do not meet with Congress’ instruction. 

 Despite the foregoing, the Court is not permitted to make reasonable inquiry about 

settlement motions. With that restriction, the Court has considered the Secretary’s Motion and 

approves it solely on the basis of the Commission’s decisions in The American Coal Co., 40 

FMSHRC 983 (Aug. 2018) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) for the 

standard to be applied by Commission administrative law judges when reviewing such settlement 

motions under the Commission’s interpretation of section 110(k) of the Mine Act. Per the 

Commission’s decisions on the scope of a judge’s review authority of settlements, the 

“information” presented in this settlement motion is sufficient for approval. 

 Should the Commission agree that the motion is inadequate for the reasons articulated by 

the Court, it has the authority to review, per 29 C.F.R. 2700.71. 

45 FMSHRC Page 322
The motion to approve settlement is GRANTED, and Respondent is hereby ORDERED

to pay the Secretary of Labor the sum of $698.00 within 30 days of the date of this decision.1 

The violations are modified, as reflected in the table above, to Section 104(a) citations, with the 

gravity reduced to unlikely. As a consequence, the modifications erase the significant and 

substantial determinations. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

Chris A. Weaver, CLR, U.S. Dept. of Labor, MSHA, 604 Cheat Road, Morgantown, WV 

26508 (weaver.chris@dol.gov) 

R. Henry Moore, Esq., Fisher & Phillips, LLP, Six PPG Place, Suite 830, Pittsburgh, PA 

15222 (hmoore@fisherphillips.com) 

1

 Penalties may be paid electronically at Pay.Gov, a service of the U.S. Department of the 

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

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. 

It is vital to include Docket and A.C. Numbers when remitting payments. 

45 FMSHRC Page 323
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 

FAX: 202-434-9949 

May 22, 2023 

 DECISION APPROVING SETTLEMENT 

Before: Judge Moran 

 It is ORDERED that the Conference and Litigation Representative (CLR), Ray A. 

Cartwright, be accepted to represent the Secretary in accordance with the notice of limited 

appearance he has filed with the penalty petition. Cyprus Emerald Resources Corporation, 16 

FMSHRC 2359 (Nov. 1994). 

This case is before me upon a Petition for Assessment of a Civil Penalties filed under 

section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The 

motion is brought by non-attorney representatives, known as “conference and litigation 

representatives (“CLRs”). The CLR has filed a motion to approve settlement of the violations 

involved in this matter. The parties have moved to approve the proposed settlement as follows: 

Citation/Order 

No. 

MSHA’s 

Proposed 

Assessment

Settlement 

Amount Modification 

WEVA 2023-0166 

9568959 $1,069.00 $535.00 

Modified from “Reasonably Likely” 

to “Unlikely”, and consequentially 

removing the “Significant and 

Substantial” designation

TOTAL $1,069.00 $535.00 50% reduction in penalty from 

regular assessment figure 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

GREENBRIER MINERALS, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2023-0166 

A.C. No. 46-09514-569163 

Mine: Muddy Bridge 

45 FMSHRC Page 324
Involved in this matter is a section 104(a) citation for a now-admitted violation of 30 

C.F.R. §75.1725(a). That standard, titled “Machinery and equipment; operation and 

maintenance,” provides at the cited subsection that “Mobile and stationary machinery and 

equipment shall be maintained in safe operating condition and machinery or equipment in 

unsafe condition shall be removed from service immediately.” 

In issuing the citation, MSHA Inspector Emory Pack found that a Mac 12 emergency 

ride, company number 001, had a non-functioning parking brake. The inspector noted that the 

machine is used to transport miners from the end of the track to the No. 1 section. Petition for 

Civil Penalty at 17. As the inspector marked the violation as reasonably likely to result in an 

injury producing lost workdays or restricted duty, he properly designated it as significant and 

substantial. The negligence was listed as moderate. Id. 

That the inspector properly so evaluated the non-functioning brake was borne out by the 

fact that the parking brake was replaced. Id at 18 

The Motion asserts the following in support of the modification and the 50% penalty 

reduction: 

Respondent disputes the level of likelihood of injury characterized by the citation. 

Respondent contends the service brakes1 on the personnel carrier were working 

properly when tested. Respondent further contends the terrain the personnel 

carrier travels is slightly rolling and not very steep. When the personnel 

carrier is parked and unattended, the transmission is left in reverse, and the 

wheels are turned into the rib. Respondent states this citation does not have a 

confluence of factors to support the S&S determination. The Secretary does not 

necessarily agree with Respondent’s position but does recognize a legitimate 

factual and legal dispute and believes that settlement of the civil money penalty is 

consistent with his enforcement responsibility under the Mine Act. Therefore, the 

Secretary agrees to modify the citation from “Reasonably Likely” to “Unlikely” 

and to delete the “Significant and Substantial” designation. The Secretary also 

agrees to accept a reduced penalty, which reflects the modification to the issuance. 

Motion at 3 (emphasis added). 

Analysis 

The support offered is a display of irrelevant considerations, because it is entirely 

composed of factors that are not to be considered, per the clear directions from the United 

States Courts of Appeals. Those Courts have rejected the ‘alternative safety measures’ 

raised by the Respondent when analyzing the significant and substantial designation. 

Accordingly, redundant safety measures are not to be considered in evaluating a hazard. 

1 The citation was for the non-functioning parking brake, not the service brake. 

45 FMSHRC Page 325
 For example, in Knox Creek Coal, 811 F.3d 148 (4th Cir. 2016), that Court 

observed: 

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

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

operators could pick and choose the standards with which they wished to 

comply.”...Such a policy would make such standards “mandatory” in name only. 

It is therefore unsurprising that other appellate courts have concluded that 

‘[b]ecause redundant safety measures have nothing to do with the violation, they 

are irrelevant to the [S & S] inquiry.’ Cumberland Coal, 717 F.3d at 1029; see 

also Buck Creek, 52 F.3d at 136. 

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

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

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

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

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

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

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

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

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

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

Id. at 118-119. 

 Such irrelevancies do not acquire legitimacy in the context of settlements because 

to do so, would mean that a lesser standard is applied. It is disconcerting that the 

Secretary’s non-attorney representatives continue to advance these rejected justifications2

for penalty reductions, as it displays a lack of respect for the holdings of the Courts of 

Appeals and Congress’ explicit direction that penalties must be sufficient to encourage 

operators to comply with safety and health standards, as opposed to noncompliance with 

the attendant benefit of paying greatly reduced penalties. 

 Despite the above observations, the Court is not permitted to make reasonable inquiry 

about settlement motions. With that restriction, the Court has considered the Secretary’s Motion 

and approves it solely on the basis of the Commission’s decisions in The American Coal Co., 40 

FMSHRC 983 (Aug. 2018) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) for the 

standard to be applied by Commission administrative law judges when reviewing such settlement 

motions under the Commission’s interpretation of section 110(k) of the Mine Act. The Court 

must and does adhere to all Commission precedent. Per the Commission’s decisions on the scope 

2 As the CLRs are not attorneys, the Court realizes they simply follow the orders from the 

Solicitor as to the claimed justifications, even if they are without merit. 

45 FMSHRC Page 326
of a judge’s review authority of settlements, the “information” presented in this settlement 

motion is sufficient for approval. 

Accordingly, the motion to approve settlement is GRANTED, the citation contained in 

this docket is MODIFIED as set forth above, and it is ORDERED that Greenbrier Minerals, 

LLC pay the Secretary of Labor the sum of $535.00 within 30 days of this order.3

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

Ray A. Cartwright, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

100 YMCA Drive, Madisonville, KY 42431 cartwright.ray@dol.gov 

Lorna Waddell, Legal Counsel, DINSMORE & SHOHL LLP, 215 Don Knotts Blvd., Suite 310, 

Morgantown, WV 26501 lorna.waddell@dinsmore.com

3 Penalties may be paid electronically at Pay.Gov, a service of the U.S. Department of the 

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

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. 

It is vital to include Docket and A.C. Numbers when remitting payments. 

45 FMSHRC Page 327
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9987 / FAX: 202-434-9949 

May 23, 2023 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

CANYON FUEL COMPANY, LLC, 

 Respondent, 

 & 

DEWEY TANNER, employed by 

 CANYON FUEL COMPANY, LLC, 

 Respondent, 

SHANE ALLRED, employed by 

 CANYON FUEL COMPANY, LLC, 

 Respondent, 

JAKE WILSON, employed by 

 CANYON FUEL COMPANY, LLC, 

 Respondent, 

JED GORDON, employed by 

 CANYON FUEL COMPANY, LLC, 

 Respondent, 

MICHAEL COOPER, employed by 

 CANYON FUEL COMPANY, LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2021-0188 

A.C. No. 42-01566-532508 

Docket No. WEST 2021-0229 

A.C. No. 42-01566-535306 

Docket No. WEST 2021-0254 

A.C. No. 42-01566-536066 

Docket No. WEST 2021-0314 

A.C. No. 42-01566-540906 A 

Docket No. WEST 2021-0315 

A.C. No. 42-01566-540910 A 

Docket No. WEST 2021-0317 

A.C. No. 42-01566-540907 A 

Docket No. WEST 2021-0318 

A.C. No. 42-01566-540908 A 

Docket No. WEST 2021-0319 

A.C. No. 42-01566-540909 A 

 

 Mine: Skyline Mine #3 

45 FMSHRC Page 328
DECISION AND ORDER 

Appearances: Jason S. Grover, Office of the Solicitor, U.S. Department of Labor, 

 Arlington, Virginia, for the Petitioner 

 Rebecca Mullins, Office of the Solicitor, U.S. Department of Labor, 

 Arlington, Virginia, for the Petitioner 

 R. Henry Moore, Esq., Fisher & Phillips LLP, Pittsburgh, 

 Pennsylvania, for the Respondent 

Before: Judge Young 

SUMMARY 

Order No. 8541891, 30 C.F.R. § 75.202(a): Failure to protect from falls of roof, face, 

and ribs. A rib burst occurred, covering a miner in coal and resulting in injuries. 

Fact of violation Yes p. 13 

S&S Yes p. 14 

Negligence Moderate p. 16 

Unwarrantable Failure No p. 18 

Penalty $25,000.00 p. 19 

Order No. 8541892, 30 C.F.R. § 50.10(b): Failure to immediately notify MSHA 

following injury of an individual which has a reasonable potential to cause death.1

 Operator 

did not immediately report a rib burst that buried a miner in coal and caused significant injuries. 

Fact of violation Yes p. 20 

S&S Yes p. 33 

Negligence High p. 35 

Unwarrantable Failure Yes p. 37 

Penalty $50,000.00 p. 42 

Individual Liability under Order No. 8541892, 30 U.S.C. § 820(c): Aggravated 

failure to immediately report an accident with a reasonable potential to cause death. 

 Shane Allred $1,000.00 p. 47 

 Michael Cooper $1,500.00 p. 49 

 Jed Gordon No Liability p. 49 

 Jake Wilson No Liability p. 49 

 Dewey Tanner No Liability p. 49 

1

 The violation was originally cited under section 50.10(c). This Court allowed 

amendment to allege a violation of section 50.10(b) instead. Order Granting Mot. to Amend 

Order, Docket No. WEST 2021-0188 et al., at 3 (Apr. 27, 2022). 

45 FMSHRC Page 329
I. INTRODUCTION 

This case is before me upon petition for assessment of civil penalty filed by the Secretary 

of Labor (“Secretary”) pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 

1977, as amended (“Mine Act” or “Act”), 30 U.S.C. § 815(d) (2023). At issue are two orders 

under section 104(d)(1), issued to Respondent, Canyon Fuel Company, LLC (“Canyon Fuel” or 

“Respondent”).2

 The parties presented testimony and documentary evidence at a hearing on May 

17–19, 2022, and filed post-hearing briefs. 

Canyon Fuel owns and operates Skyline Mine #3, located near Scofield, Utah. Joint 

Stipulations ¶ 1, 2 (May 6, 2022) (“Stips.”). Skyline is a large, underground coal mine, subject to 

the jurisdiction of the Mine Act. Id. ¶ 3, 16. Order No. 8541891 alleged a failure to protect 

miners from mine roof, face, and rib falls. Order No. 8541892 alleged a failure to report an 

immediately reportable injury that had a reasonable potential to cause death. For reasons set forth 

below, I AFFIRM both violations, but MODIFY Order No. 8541891 to “Moderate” negligence 

and remove the “Unwarrantable Failure” designation. I also find Shane Allred and Michael 

Cooper personally liable for the violation of Order No. 8541892. 

II. STANDARDS 

A. Violation 

 The Secretary must prove the elements of an alleged violation by a preponderance of the 

evidence. See Jim Walter Res., Inc., 28 FMSHRC 983, 992 (Dec. 2006); RAG Cumberland Res. 

Corp., 22 FMSHRC 1066, 1070 (Sept. 2000). Mine operators are generally strictly liable for 

mandatory safety standard violations. See Freeman United Coal Mining Co. v. FMSHRC, 108 

F.3d 358, 361 (D.C. Cir. 1997); Nally & Hamilton Enters., Inc., 33 FMSHRC 1759, 1764 (Aug. 

2011). 

B. Significant and Substantial (“S&S”) 

 A violation is properly designated as S&S if, “based upon the particular facts surrounding 

the violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 

1984) (citing Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981)). The four 

elements required for an S&S finding are expressed as follows: 

(1) [T]he underlying violation of a mandatory safety standard; (2) the violation was 

reasonably likely to cause the occurrence of the discrete safety hazard against which 

the standard is directed; (3) the occurrence of the hazard would be reasonably likely 

2

 This Court approved settlement of three violations: 8541894, 8541895, and 8541897. 

Decision Approving Partial Settlement, Docket No. WEST 2021-0188 et al., at 2 (May 19, 

2022). The Secretary also vacated two violations: 8541893 and 8541896. S. Mot. to Approve 

Partial Settlement, Docket No. WEST 2021-0188 et al., at 2 (May 11, 2021). Individual civil 

penalties against Messrs. Tanner, Allred, Wilson, Gordon, and Cooper are also before the Court. 

45 FMSHRC Page 330
to cause an injury; and (4) there would be a reasonable likelihood that the injury in 

question would be of a reasonably serious nature. 

Peabody Midwest Mining, LLC, 42 FMSHRC 379, 383 (June 2020) (integrating the refinement 

of the second Mathies step in Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug. 2016)). 

 An S&S determination must be based on the assumed continuation of normal mining 

operations. See Consol Pa. Coal Co., 43 FMSHRC 145, 148 (Apr. 2021) (citing U.S. Steel 

Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of ‘significant and 

substantial’ must be based on the facts existing at the time of issuance and assuming continued 

normal mining operations, absent any assumption of abatement or inference that the violative 

condition will cease.”). 

C. Negligence 

 Judges may use a traditional negligence analysis, rather than relying upon Part 100 

definitions. Brody Mining, LLC, 37 FMSHRC 1687, 1701–02 (Aug. 2015) (citing Jim Walter 

Res., Inc., 36 FMSHRC 1972, 1975 n.4 (Aug. 2014); Sellersburg Stone Co. v. FMSHRC, 736 

F.2d 1147, 1151–52 (7th Cir. 1984)) (“Part 100 regulations apply only to the proposal of 

penalties by MSHA and the Secretary of Labor; under both Commission and court precedent, the 

regulations do not extend to the independent Commission, and thus the MSHA regulations are 

not binding in any way on Commission proceedings.”). The reasonably prudent person standard 

should be that of one “familiar with the mining industry, the relevant facts, and the protective 

purposes of the regulation.” Brody Mining, LLC, 37 FMSHRC at 1702. 

D. Unwarrantable Failure 

Unwarrantable failure is “aggravated conduct constituting more than ordinary 

negligence,” Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013) (citing Emery Mining 

Corp., 9 FMSHRC 1997, 2001 (Dec. 1987)), and characterized by such conduct as “reckless 

disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id.

(citing Emery Mining Corp., 9 FMSHRC at 2003–04); see also Buck Creek Coal, Inc. v. MSHA, 

52 F.3d 133, 136 (7th Cir. 1995). 

 Whether conduct is “aggravated” is based on the following factors: 

[1] [T]he operator’s knowledge of the existence of the violation, [2] whether the 

violation was obvious, [3] whether the violation posed a high degree of danger, [4] 

the extent of the violative condition, [5] the length of time that the violative 

condition has existed, [6] the operator’s efforts in abating the violative condition, 

and [7] whether the operator has been placed on notice that greater efforts are 

necessary for compliance. 

Peabody Midwest Mining, LLC, 44 FMSHRC 515, 522 (Aug. 2022) (citing Manalapan Mining 

Co., 35 FMSHRC at 293; IO Coal Co., 31 FMSHRC 1346, 1350–51 (Dec. 2009)). A judge must 

examine “all relevant factors, rather than relying on one to the exclusion of others.” IO Coal Co., 

45 FMSHRC Page 331
31 FMSHRC at 1351 (citing Windsor Coal Co., 21 FMSHRC 997, 1001 (Sept. 1999)) 

(acknowledging that a judge may determine that some factors are less important or not relevant 

but must consider them all). 

A high degree of danger posed by a violation alone may support an unwarrantable failure 

finding. See BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243–44 (Aug. 1992) (finding 

unwarrantable failure where unsaddled beams “presented a danger” to miners entering the area); 

Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992) (finding a violation to be 

aggravated based upon “common knowledge that power lines are hazardous, and . . . that 

precautions are required when working near power lines with heavy equipment”); Quinland 

Coals, 10 FMSHRC 705, 709 (June 1998) (finding unwarrantable failure where roof conditions 

were “highly dangerous”). The absence of significant danger, however, does not necessarily 

preclude a finding of unwarrantable failure. Manalapan Mining, 35 FMSHRC at 294. 

 An objectively reasonable, good faith belief in a violative practice’s compliance is a 

defense against unwarrantable failure. IO Coal Co., 31 FMSHRC at 1357.3

 A respondent must 

therefore present facts demonstrating both a good faith belief, and the reasonableness of that 

belief. See W. Ala. Sand & Gravel, Inc., 37 FMSHRC 1884, 1888 (Sept. 2015) (“A party’s 

conclusory statement that it acted in good faith cannot be treated as a binding determination of 

material fact.”). 

E. Penalty 

 The Commission considers the following factors, from Section 110(i) of the Act, in 

assessing penalties under the Act: 

[T]he operator’s [1] history of previous violations, [2] the appropriateness of such 

penalty to the size of the business of the operator charged, [3] whether the operator 

was negligent, [4] the effect on the operator’s ability to continue in business, [5] 

the gravity of the violation, and [6] the demonstrated good faith of the person 

charged in attempting to achieve rapid compliance after notification of a violation. 

30 U.S.C. § 820(i) (2006). 

F. Individual Liability 

 Section 110(c) liability for an agent is stated as follows: 

3

 “[I]f an operator acted on the good-faith belief that its cited conduct was actually in 

compliance with applicable law, and the belief was objectively reasonable under the 

circumstances, the operator’s conduct will not be considered to be the result of unwarrantable 

failure when it is later determined that the operator’s belief was in error.” Id. at 1358 (quoting 

Kellys Creek Res., Inc., 19 FMSHRC 457, 463 (Mar. 1997) (citing Cyprus Plateau Mining 

Corp., 16 FMSHRC 1610, 1615–16 (Aug. 1994))) (emphasis added). 

45 FMSHRC Page 332
Whenever a corporate operator violates a mandatory health or safety standard or 

knowingly violates or fails or refuses to comply with any order issued under this 

Act . . . any director, officer, or agent of such corporation who knowingly 

authorized, ordered, or carried out such violation, failure, or refusal shall be subject 

to the same civil penalties, fines, and imprisonment that may be imposed upon a 

person under subsections (a) and (d). 

30 U.S.C. § 820(c) (2023). “Knowingly” requires a finding that the agent knew or had reason to 

know of the violative condition. Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff’d on other 

grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman 

United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362–64 (D.C. Cir. 1997). 

 To establish section 110(c) liability, the Secretary must prove only that an individual 

knew or had reason to know of the violative condition, not that the individual knowingly violated 

the regulation. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) (citing United 

States v. Int’l Miners & Chem. Corp., 402 U.S. 558, 563 (1971)); see also Ernest Matney, 34 

FMSHRC 777, 784 (Apr. 2012) (“[S]ection 110(c) liability does not hinge on whether an agent 

engaged in ‘willful’ conduct.”). A knowing violation occurs when an individual “in a position to 

protect employee safety and health fails to act on the basis of information that gives him 

knowledge or reason to know of the existence of a violative condition.” Kenny Richardson, 3 

FMSHRC at 16. 

 The Commission recently affirmed a liability finding where a judge used a three-part test 

for individual liability: (1) that the agent knew or had reason to know about the violative 

condition; (2) that the agent was in a position to remedy the condition; and (3) that the agent 

failed to act to correct the condition. Peabody Midwest Mining, LLC, 44 FMSHRC at 526–27, 

259. The agent’s conduct—or failure to act—must be “aggravated.” Id. at 527. 

 Section 110(c) liability is predicated on aggravated conduct more than ordinary 

negligence. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992).4

 A judge may use 

the factors for aggravated conduct that the Commission expressed for an unwarrantable failure 

analysis. See Matney, 34 FMSHRC at 784 (citing Mid-Continent Res., Inc., 16 FMSHRC 1218, 

1222 (June 1994)) (“The judge erred by failing to reconcile his unwarrantable failure findings 

with his section 110(c) analysis.”).5

 A circuit court recently reviewed and reinstated a judge’s 

4

 A finding of high negligence may support an individual liability finding when conduct 

is found to be aggravated. See Target Indus. Inc., 23 FMSHRC 945, 965 (Sept. 2001) (affirming 

110(c) liability where the judge found that the violations were “extremely serious” and the result 

of high negligence); Austin Powder Co., 21 FMSHRC 18, 27 (Jan. 1999) (affirming a finding of 

liability where the judge found “high negligence,” but the record also demonstrated “aggravated 

conduct”). 

5

 The Commission in Matney, in reversing a judge’s finding against individual liability, 

specifically referenced the cited condition’s “readily apparent” character, as well as the nature 

and extent of the condition and failure to conduct adequate inspections. 34 FMSHRC at 784–86. 

(continued...) 

45 FMSHRC Page 333
individual liability findings based on factors comparable to those for unwarrantable failure. 

Northshore Mining Co. v. Sec’y of Labor, 46 F.4th 718, 729, 739 (8th Cir. 2022) (upholding an 

unwarrantable failure finding and reinstating individual liability findings against agents for 

failure to maintain an elevated walkway in good condition, resulting in injury).6

 A finding of unwarrantable failure for the underlying violation alone is insufficient to 

hold a prosecuted agent individually liable. The elements of such a finding, however, can be 

imputed to an agent where he or she is reasonably responsible for the violative area or action and 

fails to exercise reasonable care to protect miners. See Matney, 34 FMSHRC at 785, 786. In 

Matney, the Commission found that the “readily apparent” nature demonstrated that a shift 

foreman should have known that the condition existed. Id. at 785. It was his failure to be 

5

 (...continued) 

Another opinion has also noted this confluence, stating: 

It is well established that section 110(c) liability is predicated on aggravated 

conduct constituting more than ordinary negligence. Slip op. at 10 (citing 

BethEnergy Mines, 14 FMSHRC at 1245). Similarly, the Commission has held that 

unwarrantable failure is aggravated conduct constituting more than ordinary 

negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). But the 

Commission has never distinguished between these two holdings and explained 

what the term “aggravated conduct” means in the context of section 110(c) -- a gap 

in Commission jurisprudence that I believe needs to be addressed. 

Austin Powder Co. & Bruce Eaton, 21 FMSHRC 18, 31 (Jan. 1999) (Verheggen, 

Comm’r, concurring). 

6

 For comparison, the Commission’s decision to affirm the judge’s unwarrantable failure 

findings cited the following as substantial evidence: (1) the violation existed for over a year; (2) 

the physical extent of the violation included the entire walkway; (3) the report clearly notified 

the operator; (4) there was no evidence that the operator attempted to repair the walkway; (5) 

while there was no evidence that the condition caused the event that day, or that there was a 

danger of falling through the walkway due to the existence of wire mesh, the danger of falling in 

a narrow walkway while walking on taconite (pellets) could not be discounted; (6) the 

deficiencies were obvious; and (7) “the engineering report made it clear that the walkway was 

not safe for use.” 43 FMSHRC 1, 26 (Jan. 2021); see also 41 FMSHRC 50, 64–66, 72–73 (Feb. 

2019) (ALJ). 

The judge’s 110(c) liability findings mirrored those the Commission (and the circuit 

court) accepted for unwarrantable failure. Regarding knowledge, the judge cited knowledge of 

the report’s recommendations. 41 FMSHRC at 74. The agents’ knowledge was also supported by 

the obviousness of the violation, including that the condition existed for over a year and was 

extensive. Id. at 72, 73. The agents’ position to effect a remedy was demonstrated by their ability 

to implement fall protection and their control of the area generally. Id. at 52, 72. Finally, 

regarding inaction, “there was no evidence that the operator [including the two agents] attempted 

to repair the walkway.” 43 FMSHRC at 26. 

45 FMSHRC Page 334
sufficiently thorough in his duties that led the Commission to find him liable. See id. at 786 

(“The evidence compels the conclusion that a preshift examiner, exercising reasonable care, 

would have identified the hazardous roof conditions and taken action to remedy the hazards.”). 

Like unwarrantable failure, an agent’s reasonable, good faith belief is a defense to 

individual liability under section 110(c). LaFarge Constr. Materials, 20 FMSHRC 1140, 1150 

(Oct. 1998) (citing Wyoming Fuel Co., 16 FMSHRC 1618, 1630 (Aug. 1994)). In line with the 

requirement that the belief be reasonable, an agent cannot defend against individual liability by 

relying on the existence of “usual procedures” found to be “wholly inadequate.” See LaFarge, 

Constr. Materials, 20 FMSHRC at 1150; see also Matney, 34 FMSHRC at 786 (quoting Roy 

Glenn, 6 FMSHRC 1583, 1587 (July 1984)) (“[A] supervisor’s blind acquiescence in unsafe 

working conditions would not be tolerated.”). 

III. Factual Findings 

 On August 25, 2020, just before 5:08 p.m.,7

 Complainant Bryce Adams was working in 

the 8 Right Longwall when a rib burst occurred. Tr. 15, 33–35.8 It was strong enough to send rib 

material 3 feet deep and 5 feet wide from the rib to the 8 Bay, a large piece of equipment that 

Mr. Adams was maintaining.9 Id. at 33, 449. The material struck him in the back and forced him

into the 8 Bay, slamming his forehead on a bolt head on the machine and covering him in coal up 

to the top of his torso. Id. at 16, 35, 232–34. He had blood running down his face, id. at 36, 233, 

and he believed his legs might be broken because of their positioning, though he could not move 

his extremities, see id. at 36–37 (“I was packed in there so tight that I couldn’t even -- I couldn’t 

wiggle my fingers; I couldn’t wiggle my toes.”).10

 Steve Childs first reacted, yelling for assistance and informing Charlie Wilson—who 

immediately called to inform Shane Allred, the shift foreman and responsible person on duty. Tr. 

7

 Shane Allred testified that he was notified at 5:08 p.m. by production foreman, Charlie 

Wilson. Tr. 262–63; see also Ex. JX-6 (noting the “Time of accident” as “5:08 p.m.” on the Mine 

Accident, Injury and Illness Report). 

8

 A disparity in terms generally existed between the parties. The Secretary consistently 

referred to the incident as a “rib burst.” Respondent, however, referred to it as a “rib roll,” which 

intuitively seems a less violent description. I would note that one of Respondent’s witnesses, and 

an individual liability respondent, Michael Cooper, did use the term “burst” during crossexamination. Id. at 326 (recalling the report from Shane Allred). I need not delineate between the 

terms, but I will use “burst” throughout the decision. It is sufficient for my evaluation that 

material from the rib detached and covered Mr. Adams. 

9

 The 8 Bay is an approximately 3 feet tall and 20 feet long metal machine that runs a 

conveyor. Tr. 54, 273, 286, 449. 

10 Mr. Adams claimed he briefly lost consciousness, id. at 35–36, 55, but he admitted on 

cross-examination that he could not recollect if he ever informed anyone, id. at 55–56. 

45 FMSHRC Page 335
36; see id. at 263 (testimony of Shane Allred that Mr. Wilson had communicated with Mr. 

Childs). Mr. Allred was informed that Mr. Adams was “covered up with coal along the 8 Bay of 

the longwall.” Id. at 262–63. 

Dayna Anderson, a trained emergency medical technician (“EMT”) miner, was also 

immediately called to respond. Tr. 90 (testimony of Dayna Anderson that he heard someone was 

buried over the mine phone); id. at 264–65 (testimony of Shane Allred that he called Conspec11

from his truck to find Mr. Anderson and have a county ambulance called). Mr. Allred 

immediately began to drive to the incident site. 

Michael Cooper, the mine safety manager, was informed of the incident by Conspec 

shortly thereafter. Tr. 301–02.12 He reported the incident to Jed Gordon, the operations manager, 

between 5:20 and 5:25. Id. at 336. Mr. Cooper then informed Jake Wilson at 5:30. Id. at 373. He 

finally informed Dewey Tanner between 5:30 and 5:40. Id. at 435. The same limited information 

was given to all of them: Mr. Adams had been covered with coal on the longwall. Id. at 335–36, 

374. 437. 

 During the 30 minutes these calls were being made, five-or-six miners, Tr. 38, including 

John Bonnanci, the longwall foreman, and Mr. Childs, were working “feverishly” to dig out Mr. 

Adams. Id. at 235. Mr. Bonnanci noticed the laceration, and he and Mr. Childs wrapped Mr. 

Adams’ head with gauze. Id. at 19, 233–34. Mr. Adams also complained of “bad” neck pain, id.

at 38, so the other miners brought him a cushion on which to rest his head while they continued 

uncovering him, id. at 38–39, 234. 

 It took approximately 30 minutes to uncover Mr. Adams. Tr. 235.13 During this time, Mr. 

Allred spoke with Mr. Wilson again while en route to the site, but he did not ask any questions or 

receive any further information about Mr. Adams’ injuries during the trip. Id. at 262–63, 265–66. 

Mr. Adams was loaded onto a backboard, supplied with oxygen, and covered with a blanket. Id.

at 39, 236. 

When Mr. Allred arrived at the scene, Mr. Adams was wearing a cervical collar. He was 

conscious and coherent and mentioned pain in his right knee, upper back, neck, and forehead; 

and the gauze on his head was soaked through with blood. Tr. 92–93, 98. 

11 Conspec is the mine’s communications center. Tr. 20. Conspec personnel made 

internal notifications and coordinated external medical support. Id. at 20, 264–65, 301–02. 

12 Jed Gordon testified that Mr. Cooper called him between 5:20 and 5:25. Id. at 336. Mr. 

Cooper had therefore been informed between 5:08 and 5:20. 

13 This is supported by the testimonies of Messrs. Allred and Anderson. Mr. Allred stated 

it took 10 minutes to walk to his truck upon receiving the report, and then 30 minutes to drive to 

the site. Id. at 286. When he arrived, Mr. Adams was already uncovered and on a stretcher. Id. at 

266. Mr. Anderson arrived just before Mr. Allred, noting Mr. Adams was no longer covered. Id.

at 91–92. 

45 FMSHRC Page 336
Mr. Adams joked with Mr. Allred that he could walk out if they needed. Tr. 60, 269. Mr. 

Allred checked with Mr. Anderson whether Mr. Adams’ leg was fractured, whether he might die, 

and whether he had movement in his extremities. Id. at 268–69. 

Mr. Anderson did not tell anybody that he thought Mr. Adams’ injuries were “life 

threatening,” though he testified that he would have reported the incident based on the injury. Tr. 

101–02. Mr. Allred did not assess the injuries as “life threatening.” Id. at 274; see also id. at 291 

(“[O]nce I was able to speak with him and talk to him and see what his condition was, yeah, he 

seemed actually really normal to me.”). 

 Mr. Adams was loaded onto the mine ambulance to be evacuated to the surface. Mr. 

Anderson and Mike Allred, Mr. Adams’ work group supervisor, Tr. 84, rode with him. Id. at 

270.14 Mr. [Shane] Allred told miners to stay out of the area until they could evaluate; he knew 

Messrs. Gordon and Wilson were on the surface and would come inspect. Id. at 273. He then 

called Mr. Cooper to review the injuries and decide whether the incident was reportable. Id. at 

273–74. He told Mr. Cooper that he did not think it was reportable. Id. at 274. 

Mr. Cooper reported that Mr. Adams’ head had been bandaged, the bleeding was under 

control, and that he had neck and back pain and a possible broken leg. Tr. 274, 303–04. Mr. 

Cooper relayed this information to Mr. Gordon, id. at 326, 361–62, and Mr. Tanner, id. at 437. 

Mr. Allred called Mr. Wilson and gave him the same assessment. Id. at 375. All respondentwitnesses stated that they observed, or were informed, that Mr. Adams was conscious and 

coherent during the time between the incident and when he was transported to the hospital. Id. at 

267, 325, 339, 376, 439. 

 While these calls occurred, Mr. Adams was being further tended to on his way out of the 

mine. Mr. Anderson rewrapped his head wound, noting that “[he] could see his skull,” and “it 

was dented in.” Tr. 93.15 Mr. Adams continued to experience significant pain in his neck, head, 

and right leg and knee. Id. at 41, 42. Mr. Adams recalled feeling sick, cold, and clammy, and Mr. 

Anderson believed he went into shock. Id. at 40–41, 95, 97. Mr. Anderson testified that he ran 

out of oxygen to give Mr. Adams after 40 crosscuts, about half-way through the trip. Id. at 40, 

95. 

 The Carbon County ambulance crew and a flight medic were waiting on the surface when 

Mr. Adams arrived. Tr. 20, 95. He was transferred from the mine ambulance to be evaluated by 

the ambulance paramedics. Id. at 20, 42, 56–57, 463.

Marty Wilson, a responding county paramedic, testified that Mr. Adams did not seem to 

be in danger of death at the time. Tr. 471–72. In explaining her conclusion, she said that Mr. 

Adams was talking and coherent and could move all extremities; his pupils reacted normally; he 

14 There was no testimony about a relationship between Shane and Mike Allred. Mr. 

Adams only specified that they were “[d]ifferent people.” Id. at 41. 

15 Mr. Anderson reassured Mr. Adams that the wound was looking good, but he silently 

shook his head at Mike Allred to indicate that it did not. Id. at 99. 

45 FMSHRC Page 337
had good blood pressure; his pulse showed no signs of shock; his respiration and oxygen were 

acceptable; he had a good Glasgow coma score;16 he had a perfect revised trauma score; and he 

had favorable scores regarding a head injury. Id. at 464–72. 

 Messrs. Gordon and Wilson observed and spoke with Mr. Adams during this evaluation. 

Tr. 42, 56–57, 338–41, 377–78. Mr. Gordon felt the injuries were “not life threatening” based on 

observation and Mr. Adams’ responses to questions. Id. at 339, 342–43. Mr. Adams responded to 

Mr. Wilson’s queries, noting that he was cold and wet. Id. at 377. He then joked with Mr. 

Wilson, requesting that someone take the chew can out of his pocket so his wife would not find 

it. Id. at 378. Mr. Wilson similarly did not feel the injuries were “life threatening” based on the 

interaction. Id.

Mr. Wilson spoke with Messrs. Anderson and Allred to review the injuries. Tr. 342. Mr. 

Anderson described the length and depth of the laceration, but he did not mention the possible 

shock and again did not say that he thought the injuries were “life threatening.” Id. at 342, 379, 

388. Messrs. Wilson and Gordon decided the incident was not reportable based on what they 

were told. Id. at 362. Mr. Wilson then called Mr. Tanner to inform him that Mr. Adams seemed 

to be in good shape, and that it had been determined that the injury was not reportable. Id. at 

439–40. Mr. Adams had been transported to the Life Flight helicopter, which took him to the 

hospital. Id. at 17, 43. Messrs. Gordon and Wilson then went underground to investigate the 

incident site. Id. at 345, 380. 

 Messrs. Gordon and Wilson testified that one of the props that had been set prior to the 

incident that injured Mr. Adams had been dislodged, and that similarly placed rib mesh was still 

attached to the roof where coal had fallen from beneath. Tr. 345–46, 381–82. These had been 

installed after a similar incident, at a rib inby the same section, five days earlier [August 20, 

2020] that buried an 8 Bay controller. See id. at 46, 241, 280, 357, 418; Ex. GX-2, DOL 0037. 

Though production did not continue that shift,17 Mr. Gordon testified that he and others 

continued on to inspect the longwall. See Tr. 347 (“[W]e continued on, we traveled the face to 

make sure there were not more existing conditions or more existing conditions that would cause 

another problem somewhere.”). 

 Mr. Cooper arrived at the hospital before Mr. Adams’ wife, Aubrey, but he was unable to 

enter to observe Mr. Adams because of COVID restrictions. Tr. 74–75, 308. Ms. Adams testified 

that her impression was that her husband’s injuries were very serious, that multiple doctors were 

involved in his treatment, and that he was in pain. Id. at 77–78. 

Mr. Adams was taken to surgery about an hour after she arrived. Tr. 77. Ms. Adams 

texted Mr. Cooper to update him about her husband’s condition. Id. at 79, 310 (informing him 

16 This assessment determines a patient’s “level of responsiveness,” dealing with “eye 

movement, how they respond verbally, and their motor function,” which are combined for a 15-

point scale. Tr. 469. Mr. Adams scored a 15. Id. 

17 Mr. Bonnanci testified to this, Tr. 242, and Mr. Tanner stated that the mine could not 

produce that night because the conveyor was hung up, id. at 440. 

45 FMSHRC Page 338
that Mr. Adams had a skull fracture, was in surgery, and had a C5 vertebra injury). Mr. Cooper 

forwarded that update to Messrs. Allred, Gordon, Wilson, and Tanner. Id. at 275, 311, 344, 390, 

440.18

 Mr. Adams stayed in the hospital for four days. Tr. 77–78. Ultimately, he learned he 

broke his C1 vertebra, fractured his skull, and tore “a bunch of stuff” in his knee. Id. at 43, 79, 

292, 310, 362, 390, 440. He had a plate inserted in his head, wore a cervical collar for six weeks, 

and had surgery on his knee. Id. He was not able to return to work until March 2021. Id. at 43–

44. He testified that several of his coworkers expressed they did not know how he survived the 

incident. Id. at 44–45. 

 Mr. Madrigal, an MSHA inspector, visited the mine the next morning, August 26, 2020, 

after hearing about the incident from miners at a different mine. Tr. 114–15. He questioned Mr. 

Cooper about the incident upon seeing the stretcher outside of his office. Id. at 118, 312. Mr. 

Madrigal then went underground with Darrell Burr and Jason Layton, the engineering manager. 

Id. at 313, 401. He did not issue a Section 103(k) order (“K-Order”), but he informed Daniel 

Lyons, the citation-issuing inspector, that the rib rolled on a person and caused an injury. Id. at 

127, 130. Mr. Cooper submitted a 7000-1 [non-“Immediately Reportable”] form to report the 

incident following Mr. Madrigal’s visit. Id. at 315, 330; Ex. JX-5. 

 Mr. Lyons visited the mine on August 27, 2020, with Kendell Whitman, the MSHA 

assistant district manager for District 9. Tr. 115. They did not go underground to inspect the 

area—choosing only to interview miners—but noted Respondent had mined past the area where 

the rib had collapsed. Id. at 116, 127, 131. Mr. Lyons issued the citations after the interviews. Id.

at 116.19

 John Lewis, an MSHA electrical, roof control and ground control supervisor, visited the 

mine with Mr. Whitman on August 27 and traveled underground to inspect. Tr. 166–67. He 

testified that the pillars were “not yielding like they should,” claiming they were too big. Id. at 

167–70.20 Neither Mr. Lyons nor Mr. Lewis issued a K-Order. Id. at 130, 176. 

18 Messrs. Cooper, Gordon, and Wilson discussed notifying MSHA at that point, but they 

agreed the injury was not immediately reportable. Id. at 390. 

19 Mr. Lyons testified that he would think an incident was reportable “[i]f [he] was aware 

of a miner that was struck by a violent rib burst that caused him to smash into the control panel 

and suffer neck and back pain as well as bleeding from the head, and was buried for over 45 

minutes.” Id. at 150. 

20 Mr. Layton obtained two separate engineering evaluation reports following the 

incident. Id. at 403; see Ex. GX-5, 6. He claimed the pillars were the same size approved by 

MSHA in another section. Id. at 405. The reports were not determinative that the pillars were 

oversized. Id. at 413–14. 

45 FMSHRC Page 339
IV. ORDER NO. 8541891 

This order was issued by Inspector Lyons on September 10, 2020. Ex. GX-2, DOL 

0037. He assessed gravity as “occurred,” “permanently disabling,” “S&S,” and one person 

affected. Id. He assessed negligence as “high,” and found that the violation was a result of 

unwarrantable failure. Id. The description reads: 

A serious injury accident occurred August 25th 2020, on the 8 Right Longwall 

located at the head gate along the stage loader when a violent bounce caused 

the rib to blow out, striking and covering up a miner, with the coal that was 

blown off the rib of the yield pillar. No standing support was installed in the 

area prior to the bounce. He received serious injuries to his head and neck, 

including a concussion by the blunt force trauma received to his head. Also 

receiving [sic] an injury to his lower extremity. The roof, face, and ribs of areas 

where persons work or travel shall be supported or otherwise controlled to 

protect persons from hazards related to fall of ribs and coal or rock out bursts. 

 During the accident investigation it was determined that an additional 

geological event or a bounce occurred on the 20th of August. This event was 

recorded on the USGS as a 1.6 on the rector [sic] scale as an earthquake. The 

resulting event buried the 8 bay controller with coal, on the 8 Right Longwall 

section. Production on the 8 Right MMU was interrupted for approximately 1 

and 1/2 shifts, to clean up the blown out material. 

 The operator engaged in aggravated conduct constituting more than 

ordinary negligence, by not protecting the persons by controlling the ribs in the 

areas where persons work or travel. This violation is an unwarrantable failure 

to comply with a mandatory standard. 

Id. DOL 0037–38. 

A. Violation 

The cited provision states, “The roof, face and ribs of areas where persons work or 

travel shall be supported or otherwise controlled to protect persons from hazards related to 

falls of the roof, face or ribs and coal or rock bursts.” 30 C.F.R. § 75.202(a) (2023). The 

Secretary must demonstrate “(1) that the roof fall occurred in an area where persons work or 

travel and (2) that the roof was not supported to protect persons from hazards related to 

falls.” Jim Walter Res., Inc. (JWR), 37 FMSHRC 493, 495 (Mar. 2015); see also S. PostHr’g Br. 4 (Aug. 5, 2022) (“S. Br.”). 

Respondent asserts that section 75.202(a) is an objective, performance-based 

standard. See Resp’t Posthr’g Br. 39–40 (Aug. 5, 2022) (“Resp’t Br.”) (citing Harlan 

Cumberland Coal Co., 20 FMSHRC 1275 (Dec. 1998); Canon Coal Co., 9 FMSHRC 667 

(Apr. 1987); JWR, 30 FMSHRC 872, 879 (Aug. 2008) (ALJ)). But while the reasonably 

prudent person standard for evaluating alleged violations of this provision may still be in 

45 FMSHRC Page 340
place, it only applies now to situations in which there has not been a roof fall resulting in an 

injury to a miner. See JWR, 37 FMSHRC at 496 (“The roof fall that pinned [miner] under a 

piece of rock, resulting in his death, amply demonstrates that the roof was not supported in a 

manner to protect him from hazards relate to falls.”). 

The Commission in JWR declined to follow Canon Coal Co. Id. at 496 n7; see also 

id. at 498 (Comm’r Cohen, concurring) (stating that the decision effectively overruled 

Canon Coal Co., but that it does not affect all subsequent Commission decisions relying on 

it where, like Harlan Cumberland Coal Co., a roof fall had not actually occurred). The ALJ 

decisions cited by Respondent were all published before JWR. 

 Here, a rib burst in fact occurred and a miner was injured. Tr. 35, 326; S. Br. 3; 

Resp’t Br. 1. I therefore find JWR controlling and hold that such occurrence demonstrated 

that the roof was not supported in a manner to protect miners from associated hazards. Mr. 

Adams was working in the area at the time of the burst and his resulting injury. Under JWR, 

and the strict liability approach governing Mine Act violations, the Secretary successfully 

demonstrated a violation. 

B. Gravity 

 1. Likelihood 

 The hazard—inadequately supported rib material falling and contacting a miner—in fact 

occurred. I therefore affirm the likelihood determination. 

 2. Severity 

 The likelihood contemplated is that of the expected resulting injury. The severity 

evaluation assumes the occurrence of the hazard. See Consolidation Coal Co., 18 FMSHRC 

1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable likelihood 

of serious injury,” with gravity inquiry, which focuses on “the effect of the hazard if it occurs”) 

(emphasis added). 

 The Secretary asserts the severity of the contemplated injury is permanently disabling. 

There is sufficient evidence, acknowledged by Respondent, that Mr. Adams suffered a fractured 

skull, broken vertebra, and damage to his knee. Tr. 43, 79, 292, 310, 362, 390, 440; S. Br. 6–7; 

Resp’t Br. 6. I find that such injuries are reasonably likely to result in total or partial loss of use 

of any member or function of the body and therefore affirm the severity as characterized by the 

inspector.21

21 I hold in this decision, and the record establishes, that Mr. Adams could have been 

killed by the rib burst, see Section V.A.2., infra, and the severity might have been assessed as 

“fatal.” The Secretary’s characterization in the order apparently flows from the fact that an 

incident actually occurred, but a miner did not die as a result. 

45 FMSHRC Page 341
 3. Number of Persons Affected 

 The inspector assessed that one miner would be affected by the hazard. I agree that one 

miner was likely to be, and in fact was, injured by a roof fall. I thus affirm the inspector’s 

enumeration of persons who would likely be affected. 

4. S&S 

 I affirm the S&S designation for the following reasons. 

a. Step 1: The violation has been established.

The occurrence of an injury-causing rib burst demonstrates a failure to adequately protect 

miners working in the area from hazards related to rib bursts. This is sufficient to constitute an 

underlying violation of a mandatory safety standard for the purposes of Mathies Step 1. 

b. Step 2: The violation was reasonably likely to result in the discrete 

safety hazard against which the regulation is directed—falling 

material striking a miner. 

Mathies Step 2 is a two-part process: (1) determine the specific hazard the standard is 

aimed at preventing; and (2) determine whether a reasonable likelihood exists that the hazard 

against which the mandatory standard is directed will occur. Newtown Energy, Inc., 38 

FMSHRC at 1868. This finding must be based on “the particular facts surrounding the 

violation.” Northshore Mining Co., 38 FMSHRC 753, 757 (Apr. 2016). 

 The standard requires that ribs be supported or controlled to protect miners working there 

from hazards related to bursts. The hazard the standard aims to prevent is falling material striking 

a miner. The issue is therefore whether a reasonable likelihood exists that rib material would 

strike a miner. 

 Here, a rib burst occurred, and Mr. Adams was driven into the 8 Bay and covered in coal, 

requiring approximately 30 minutes to uncover him. The fact of occurrence is sufficient to find 

that the violation was reasonably likely to cause the occurrence of the contemplated hazard. 

c. Step 3: The falling material striking a miner was reasonably likely to 

cause an injury—e.g., fractured skull and vertebra, and knee injury. 

Mathies Step 3 asks whether the hazard, not the violation itself, is reasonably likely to 

cause an injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280–81 (Oct. 2010). In evaluating the 

likelihood of injury, judges must assume the occurrence of the hazard. See Newtown Energy, 

Inc., 38 FMSHRC at 2037. 

Both parties acknowledged that Mr. Adams sustained a skull fracture, vertebral fracture, 

and knee damage. See Section IV.B.2., supra. That the occurrence of the contemplated hazard 

resulted in these injuries is sufficient to find the hazard was reasonably likely to cause an injury. 

45 FMSHRC Page 342
d. Step 4: It is reasonably likely that such an injury would be of a 

reasonably serious nature. 

An inspector’s conclusion that a possible injury is of a reasonably serious nature has been 

held sufficient for Mathies Step 4. See Consol Pa. Coal Co., 43 FMSHRC at 149 (finding it 

sufficient that the inspector characterized the potential injury as “serious” and noted potential 

injuries). The Commission also does not require a specific type of injury for it to be considered 

serious. See S&S Dredging Co., 35 FMSHRC 1979, 1981–82 (July 2013). 

 Here, Inspector Lyons testified that he thought the injury was reportable—i.e., it had a 

reasonable potential to cause death. Tr. 150–51. There was also, however, particularly 

compelling testimony from Mr. Anderson that he “could see [Mr. Adams’] skull,” id. at 93, and 

that he told another miner “[i]t didn’t look good,” id. at 99. I also credit Mr. Adams’ own 

testimony about the seriousness of his injuries. Id. at 43. 

Taken together with the circumstances of the accident, the care and treatment required, 

and the description of the resulting injuries, I find that the injury resulting from the hazard was 

reasonably likely to be of a reasonably serious nature. 

C. Negligence 

I find that the negligence was improperly characterized by the inspector as “high.” Those 

charged with ensuring the rib is properly supported are familiar with the mining industry, the 

relevant facts, and the protective purpose of the provision. While a reasonably prudent person in 

the position of the mine’s management should have recognized that more effort was needed to 

protect miners from a rib burst in this area, there was mitigation. I therefore assess negligence as 

“moderate.” 

 The Commission has declined to disturb a moderate negligence finding where a judge 

found that roof problems were obvious at the time of citation, and credible testimony 

demonstrated that an exam was completed without noticing the existence of the problem. See 

Hubb Corp., 22 FMSHRC 606, 614 (May 2000) (vacating the penalty assessments only for 

judge’s failure to adequately address all section 110(i) criteria); 20 FMSHRC 615, 621–22 (June 

1998). The Commission has similarly declined to disturb a high negligence finding where the 

judge found: (1) the conditions were obvious, extensive, and had existed for “quite some time;” 

the roof fall had potentially fatal consequences to miners; and the operator had made no effort to 

correct the conditions. Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3103, 3104 (Dec. 2014). 

 The Secretary asserts that Respondent’s actions after the August 20 incident suggested an 

“aggravated lack of care.” S. Br. 7 (citing Ky. Fuel Corp., 40 FMSHRC 28, 31 (Feb. 2018) 

(quoting Brody Mining, LLC, 37 FMSHRC 1687, 1703 (Aug. 2015))). I disagree. Kentucky Fuel 

Corp. involved a failure to block machinery. 40 FMSHRC at 28. The following findings were 

found to be substantial evidence in support of high negligence: “materials needed to properly 

block the vehicle against motion were not available at the mine site, mine personnel had not been 

45 FMSHRC Page 343
adequately trained in blocking techniques, and the truck’s brake system was not adequately 

maintained.” Id. at 32. 

In Brody Mining, LLC, the Commission reversed a judge’s negligence reduction to 

moderate because it relied on a single mitigating circumstance, but that circumstance—lack of 

methane at the time—was not relevant to negligence. 37 FMSHRC at 1703. Here, mitigating 

circumstances relevant to rib bursts were present, and materials and action were not entirely 

lacking, in contrast to Kentucky Fuel Corp.

 Respondent did not address negligence directly, but it noted in its unwarrantable failure 

analysis that a similar [vacated] citation for a roof control plan violation was designated 

“moderate.” Resp’t Br. 44.22 Respondent argued that it planned and maintained adequate pillar 

design, conducted rib bolting and meshed the ribs, and installed additional supports between 

August 20 and the present incident. Id. at 45. Respondent only cites its own witnesses’ direct 

examination testimony to make this claim, however. 

 Inspector Lyons testified that he assessed the violation as high negligence because there 

was a known geological event five days earlier in a nearby location, and Respondent “did 

nothing to control the rib.” Tr. 120.23 I disagree that Respondent did nothing, but the Secretary 

demonstrated a lack of adequate mitigation. 

 Mr. Lewis testified that he noticed that the pillars in the area were not yielding as they 

should. Tr. 167–70. Respondent produced Jason Layton, the operator’s engineering manager, to 

testify that the same-sized pillars were approved by MSHA for a new district. Id. at 405.24 He 

claimed there was no indication that a pillar would fail on August 25, id. at 414–15, but was 

22 I note here that I do not accept Respondent’s contention that the two citations were 

duplicative. See id. at 35–39. I agree with the Secretary that the provisions impose “separate and 

distinct duties,” and that plans can be violated in ways that do not involve the failure alleged 

here. See S. Br. 23 (citing Ky. Fuel Corp., 38 FMSHRC 1614 (July 2016)). Further, the plan 

violation citation was vacated, and I find that this citation is properly before me. 

23 Significant testimony was elicited, and documents produced, about the noted 

geological event/earthquake associated with the August 20 incident. See Ex. R-E; Resp’t Br. 41; 

Tr. 119–25, 152, 397–401. The inspector’s narrative suggests that the prior burst registered as a 

geological event. If the Secretary’s theory is that the burst was so powerful that it registered on 

the Richter Scale, Respondent effectively demonstrated that the timing and location of that 

recorded event did not match the burst. If the Secretary’s theory is that the recorded geological 

event may have been a catalyst for the burst, putting Respondent on notice that further mitigation 

was needed, such evidence is unnecessary because the rib burst itself would put Respondent on 

notice. Further, the Secretary did not address the geological event in her brief. 

24 He acknowledged that two engineering reports were not determinative that the pillars 

were adequate. Id. at 409–12. These reports, however, were sought because of the event that 

injured Mr. Adams, id. at 403, so they would have no bearing on Respondent’s knowledge, or 

negligence, at the time of citation. 

45 FMSHRC Page 344
subsequently asked on cross-examination if the failure of the pillar inby the same section on 

August 20 was an indication, id. at 418. 

Mr. Layton responded, “I guess I don’t recall that that came to my attention. It could 

have.” Id. I credit Mr. Lewis’ evaluation and find that Mr. Layton did know, or should have 

known, about the burst five days earlier on the nearby rib, and that should have been an 

indication of the area’s inadequacy. 

 Regarding mesh and rock props in the violative area, there is evidence that such 

mitigation existed, but there is also evidence that Respondent knew it was insufficient. Mr. 

Adams, and the Secretary in her brief, claimed that Respondent failed to take additional 

measures after August 20. Tr. 46; S. Br. 7. 

This, however, is not supported even by Mr. Adams’ testimony. Though he claimed 

Respondent could have done more, he hedged and stated he did “not think any or it [rib mesh 

and timbers or rib jacks] was done.” Tr. 47. He then stated on cross-examination that there was 

mesh, but only on the top part, and that some was hanging. Id. at 54. 

 Mr. Allred testified that there was mesh, though some had come down, and two out of 

three props remained in place. Tr. 271–72.25 This was confirmed by Mr. Gordon, who testified 

that he went underground to check out the area and found one of the props had been dislodged by 

the rib burst. Id. at 346. Mr. Wilson was with Mr. Gordon, and he testified that props remained, 

and rib mesh was still attached at the top of the roof and coal had fallen from underneath. Id. at 

381–82. Mr. Gordon, however, did acknowledge that Mr. Bonnanci told him about the August 

20 burst—that a bolt had broken, and mesh rolled over onto the 8 Bay. Id. at 357–58. 

Respondent was thus on notice that its mesh and bolts in the area were inadequate to prevent a 

rib burst. 

 I do not find the violation here to be the result of the operator’s high negligence because, 

though the condition had potentially fatal consequences, it was not necessarily obvious, the 

operator was only on notice of possible hazard for five days, and the operator had made efforts to 

mitigate hazardous conditions in the area. This was nevertheless a significant breach of the duty 

of care, given the extreme danger posed by the hazard. 

D. Unwarrantable Failure 

I find that this violation was not the result of the operator’s unwarrantable failure to 

comply with a mandatory standard. I have already found that the cited negligence was 

overestimated, so Respondent did not display more than ordinary negligence in its violation here. 

The violation posed a high degree of danger, as demonstrated by the incident and Mr. Adams’ 

injuries, but the Secretary has not sufficiently shown that Respondent’s abatement efforts were 

lacking to an aggravated degree—a factor that I consider paramount here. 

25 The Secretary noted, in his violation and unwarrantable failure analyses, that Mr. 

Allred admitted the mesh and rock props were inadequate. S. Br. 4, 9. This, paradoxically, 

demonstrates that measures were in fact taken. 

45 FMSHRC Page 345
 Respondent had knowledge of a possible hazard because of the rib burst that occurred 

nearby five days earlier. This, however, is not necessarily knowledge of the violative condition 

of the area at issue. The Secretary asserts the violative condition was obvious, specifically citing 

Mr. Lewis’ testimony that the pillars were noticeably too big to yield and the third-party 

engineering reports. S. Br. 9. The reports, however, were sought after the incident at issue, and 

are a matter of some dispute. See supra notes 20 & 24. 

I credit Mr. Lewis’ testimony and conclude that there was mitigation, though inadequate. 

This does not necessarily mean that the condition was obvious to Respondent; Mr. Lewis did not 

testify that he told Respondent about this inadequacy prior to the incident. 

 The violative condition likely existed for the duration of mining in the area, but 

knowledge of the violation cannot be attributed to Respondent until the August 20 incident. The 

Secretary made no argument specifically to the duration other than to state that Respondent had 

been aware of the condition since that time. See S. Br. 8–9. The extent of the violative condition 

is unknown. However, there are sufficient facts to support an inference that it extends to the rib 

at issue, the nearby rib that burst on August 20, and any surrounding areas where Respondent 

found it necessary to install additional mitigation. 

 The operator had been placed on notice by the August 20 incident that greater efforts 

were necessary for compliance.26 The Secretary, however, did not demonstrate that the 

operator’s efforts, while inadequate, were the result of an aggravated lack of care. 

I agree with Respondent that the Secretary and her witnesses erroneously claim that the 

operator did nothing. Resp’t Br. 45. While inadequate to prevent a rib burst and sufficient for a 

finding of violation, Respondent installed additional mitigation to prevent a rib burst, or at least 

limit the possible severity. See Section IV.C., supra. 

E. Penalty 

 Respondent has been cited seven times in the last two years at this mine for violation of 

this regulation. Ex. GX-2, DOL 0038; Ex. GX-3 [MSHA Assessed Violation History Report]. I 

find that the Secretary has properly considered Respondent’s violation history in the calculation. 

I accept that the Secretary has properly evaluated the size of the mine. The parties have 

stipulated that payment of this penalty will not affect the Respondent’s ability to continue in 

business, and my penalty assessment would not support such a conclusion. See Stips. ¶ 7. 

26 It is also relevant that Respondent has been cited for violation of this provision seven 

times in the last two years. See Section IV.E., infra. “[T]he Commission may consider these past 

violations.” Enlow Fork Mining Co., Docket No. PENN 94-259, 1997 WL 14346, at *9 (Jan. 15, 

1997) (citing Peabody Coal Co., 14 FMSHRC 1258, 1263 (Aug. 1992) (“[T]he Commission has 

not limited the circumstances under which past violations may be considered by a judge in 

determining whether an operator’s conduct demonstrated aggravated conduct.”)). 

45 FMSHRC Page 346
 I have affirmed the reasoning underlying the Secretary’s gravity assessment, but the 

proposed penalty of $74,700.00 was based, in part, on the negligence and unwarrantable failure 

determinations. I have found that negligence was overestimated, and an unwarrantable failure 

determination is not supported. Further, Respondent made efforts before the incident at issue, 

and following the incident [engineering reports] to achieve compliance and better safety. 

On the other hand, the history of seven previous violations within the relevant reporting 

period, including a previous incident in a nearby pillar only five days earlier, and the high degree 

of danger posed by the hazard, should have prompted a more thoughtful consideration of the 

circumstances and the potential for the cited area to collapse. I therefore assess a penalty of 

$25,000.00. 

V. ORDER NO. 8541892 

This order was issued by Inspector Lyons on September 10, 2020. Ex. GX1. He assessed gravity as “occurred,” “permanently disabling,” “S&S,” and one 

person affected. Id. He assessed negligence as “high,” and found that the violation

was a result of unwarrantable failure. Id. The description reads: 

The mine operator failed to report an Immediately Reportable Accident which 

occurred at approximately 17:00 hours on August 25, 2020. The mine conditions 

present on the Longwall headgate in the 8 Right section created such an unsafe 

condition that a miner suffered multiple, severe injuries that have a reasonable 

potential to cause death. The blunt force trauma that created these injuries 

"concussion, upper body blunt force trauma", [sic] was caused by a violent bounce 

which blew a rib out onto the miner while he was trouble shooting the face 

conveyor. Immediate reporting is necessary to address unsafe or potentially life 

threatening conditions and practices at a mine. The mine operator has had two 

injuries on the Longwall face in the last 6 months, six in the last two years. This 

violation is an unwarrantable failure to comply with a mandatory standard. The 

operator engaged in aggravated conducted constituting more than ordinary 

negligence by not reporting the accident that occurred on August 25, 2020 that 

resulted in life threating injuries to a Miner. 

Id. 

A. Violation 

The cited provision states, “The operator shall immediately contact MSHA at once 

without delay and within 15 minutes . . . once the operator knows or should know that an 

accident has occurred involving: (b) an injury of an individual at the mine which has a 

reasonable potential to cause death.” 30 C.F.R. § 50.10(b). The Secretary asserts this incident 

caused at least reasonable doubt which should have favored notification, and that Respondent 

myopically focuses on assessment of whether Mr. Adams’ injuries were life threatening. See S. 

Br. 12 (citing Signal Peak Energy, LLC, 37 FMSHRC 470, 474 (Mar. 2015)). 

45 FMSHRC Page 347
Respondent cites Signal Peak to assert that the inquiry is whether a reasonable person, 

based on readily available information, thought the injury was life threatening. Resp’t Br. 11–13 

(citing 37 FMSHRC at 474; Ideal Cement Co., 12 FMSHRC 2409, 2415 (Nov. 1990)). It relies 

heavily on its witnesses’ testimony that nobody at the mine thought Mr. Adams’ injuries were 

life threatening or told those to whom they reported that they were. I find that “life-threatening 

injury” is not the standard, and that this incident should have been reported to MSHA. For the 

following reasons, I affirm the violation. 

1. Standards 

a. Whether the injury is “life threatening” is not the standard for 

evaluating whether an incident is reportable. 

Respondent states that “‘life threatening’ is commonly used as a synonym for an injury 

that has a ‘reasonable potential to cause death,’” claiming that the case turns on whether the 

injury was life threatening. Resp’t Br. 12. This is not supported by the cited authority. Signal 

Peak stressed evaluation of the readily available nature of the accident rather than relying merely 

on the injury itself: 

[R]eadily available information such as the nature of the accident is highly relevant 

in determining whether an injury is reportable, while permitting operators to wait 

for a medical or clinical opinion would “frustrate the immediate reporting of near 

fatal accidents.” 

37 FMSHRC at 476 (quoting Cougar Coal Co., 25 FMSHRC 513, 520–21 (Sept. 2003)). 

The page cited by Respondent only refers to the language in stating the parties’ 

contentions regarding the proper evaluation of “reasonable potential to cause death”: (1) the 

judge’s statement that it means a “not far-fetched” possibility [of death],” and (2) respondent’s 

statement that it is “synonymous with ‘life-threatening.’” Id. at 474. Following this description, 

the Commission concluded that the injuries there had a reasonable potential to cause death and 

declined to further define the term. Id.

Further discussion was provided, however. The Commission noted that the judge rejected 

the operator’s argument that the injury must qualify as life threatening. Id. at 474 n.8. 

The Commission neither agreed nor disagreed with this finding; it simply acknowledged 

that Commissioner Cohen agreed with that distinction. Id. The Commission then made two 

statements demonstrating it agreed with the judge that reasonable potential to cause death is not 

synonymous with life threatening. 

 First, it stated, “The Judge correctly discerned that the reporting requirement . . . 

contemplates a subjective immediate evaluation governed by the concern for the ‘possible,’ not 

an objective clinical examination . . . .” Id. Next, it continued, “The Judge’s analysis is consistent 

with the Commission’s decision in Cougar Coal Co. (citation omitted), in which we stated that 

‘the decision to call MSHA cannot be made upon the basis of clinical or hypertechnical opinions 

45 FMSHRC Page 348
as to the miner’s chance of survival.’” Id. These demonstrate that the judge’s analysis based on a 

“not far-fetched” possibility—not respondent’s contention that the requirement is synonymous 

with “life-threatening”—is consistent with Commission precedent. 

 The other references to “life-threatening” are in its discussion of reckless disregard and in 

Commissioner Althen’s dissent regarding penalty assessment. The majority summarized the 

judge’s findings, noting that “the doctor . . . believed ‘absolutely’ that Stewart’s injuries were 

life-threatening.” Id. at 482. This was one of twelve considerations in support of the judge’s 

finding of reckless disregard. 

But a doctor’s assessment of something as “life-threatening” is irrelevant to the initial

determination. See id. at 477 (citing Consolidation Coal Co., 11 FMSHRC 1935, 1936–38 (Oct. 

1989)) (“By waiting for a medical opinion at the hospital rather than spending that time 

gathering readily available information, information which in this case would have been 

sufficient to trigger the notification requirement, Rice failed to conduct a sufficiently prompt 

investigation.”). 

 Commissioner Althen asserted that the judge created a new interpretation of reasonable 

potential to cause death, arguing that MSHA and other Commission Judges have equated 

“reasonable potential to cause death” with “life threatening,” and that such interpretation was 

supported by the final rule’s preamble. Id. at 491 n.6, 492 (Althen, Comm’r, dissenting). “Life 

threatening” appears, relevantly, twice in the “Section 50.10 Immediate Notification” portion of 

the final rule. 

First, the rule states, “Timely reporting can be crucial in emergency, life-threatening

situations to activate effective emergency response and rescue.” Emergency Mine Evacuation, 71 

Fed. Reg. 71,430, 71,435 (Dec. 8, 2006) (emphasis added). Next, it states: 

Based on MSHA’s experience under the ETS, “within 15 minutes” provides 

adequate time for operators to notify MSHA with sufficient information. For 

example, the mine operator often knows the general character of an event, such as 

an explosion or inundation, and can report it under the 15-minute requirement 

before knowing whether a person has been injured or killed or whether the event is

life threatening.

Id. (emphasis added). 

Prior to this, the language is only used regarding SCSRs, “enabling miners to breathe in 

the presence of hazardous or life-threatening contaminants,” id. at 71,431, and regarding 

emergency training and response to “assure that underground coal miners can respond quickly 

and appropriate to life threatening mine emergencies.” id. These two references to “lifethreatening” are not directly relevant to what is required for reporting, and to the extent they are 

relevant, they clearly support reporting in the circumstances presented by this case. 

 The Commission majority’s refusal to adopt a “life threatening” standard where a 

reasonable potential to cause death is at issue is consistent with the language and structure of the 

45 FMSHRC Page 349
entire standard. Section 50.2(h) identifies twelve circumstances which must be immediately 

reported in accordance with Section 50.10. Only the first two, involving the death of an 

individual at the mine, or an injury to a miner with a reasonable potential to cause death, and the 

last, which is the death or bodily injury of a person not at the mine from an event at the mine, are 

based on physical injuries to persons. 30 C.F.R. §50.2(h)(1)–(12). 

 All the other defined “accidents” are based on the event itself: an inundation, roof fall, 

rock burst, instability, damage to a hoist, etc. The inclusion of all these conditions highlights the 

common element for all twelve, i.e., the agency’s need to determine what happened, and why, in 

order to protect miners from being exposed to similar hazards. 

 The rule therefore first requires immediate reporting to ensure an effective MSHA 

response, including inspection to ensure other miners are not exposed to the same hazard, see

Section V.B.4.b., infra. Next, the rule demonstrates that an operator can (and should) report an 

event—meaning it has a reasonable potential to cause death—based on the general character of 

the event, without being able to fully evaluate a resulting injury during the reporting window. 

This is wholly consonant with the Commission’s holding in Cougar Coal, supra, against 

waiting on medical confirmation that an injury is life threatening before reporting. Therefore, 

even if the support provided for Respondent’s contention was not in the dissenting opinion, that 

argument would yet be unpersuasive. 

 The ALJ cases cited by Commissioner Althen are similarly unsupportive of his explicit 

contention that the two phrases should be equated. The judge in Vulcan Construction Materials, 

L.P. did not require a “life-threatening” injury. The decision cited the same page of the final rule 

quoted above, regarding SCSRs and emergency training to claim that the notification 

requirement “allows MSHA to address unsafe or potentially life-threatening conditions . . . when 

a quick response could make a difference.” 35 FMSHRC 2868, 2879 (Aug. 2013) (ALJ). The 

case involved a miner found after having a heart attack. 

The next mention of “life threatening” in Vulcan addressed the Commission’s Cougar 

Coal Co. decision, but the judge acknowledged the Cougar Coal judge’s error in requiring proof 

of life-threatening injuries from medical records. Id. at 2884. 

Finally, in response to the operator’s argument that it would have called an ambulance if 

it thought the injury was life threatening, the judge in Vulcan again turned to Cougar Coal to 

state: 

This Court recognizes that the ultimate cause of an incident does not control 

whether it must be immediately reported as an accident. But the apparent cause, or 

lack thereof, bears heavily on whether a mine operator knew or should have known 

that an injury with a reasonable potential to cause death has occurred. See Cougar 

Coal Co., 25 FMSHRC at 520 (noting that the nature of the events surrounding the 

injury, as well as the actual injury sustained, must be considered when determining 

whether the accident had a reasonable potential to cause death). 

45 FMSHRC Page 350
Id. at 2887. 

 The judge in Vulcan therefore held that the nature of the accident is highly relevant, and 

his decision is consistent with Commission precedent. See Cougar Coal; see also Signal Peak, 

37 FMSHRC at 476 (noting that the nature of the events surrounding an injury, as well as the 

injury sustained, must be considered when determining whether the accident had a reasonable 

potential to cause death.). 

 The judge in Cemex, Inc. did find that the Secretary failed to establish the violation 

because the injuries—burns to hands—were not life threatening. 35 FMSHRC 1355, 1365 (May 

2013) (ALJ). But the context and the underlying authority are crucial. The judge properly 

distinguished the minor injuries at issue from those in Cougar Coal, where after suffering a 

severe electrical shock, the miner fell from a significant height and suffered a head injury. 

However, Cougar Coal did not rely on the injury being “life threatening”—the term was 

not even used. The judge therefore incorrectly injected the term “life threatening” from Cougar 

Coal’s description of significant causes and injuries sufficient for notification, depriving 

Respondent of any relevant support for its position here. 

 Respondent also cites Walker Stone Co., 23 FMSHRC 180 (Feb. 2011) (ALJ),

Consolidation Coal Co., 9 FMSHRC 1950, (Nov. 1987) (ALJ), and Climax Molybdenum, 2 

FMSHRC 1967, (July 1980), but the ALJ holdings in these cases, in addition to being nonbinding, all occurred before the Commission’s decisions rejecting a “life-threatening” standard in 

Signal Peak and Cougar Coal. 

 Respondent thus disregards the actual, and inconvenient, state of the law, which requires 

the decision to report to be based on information available in the immediate aftermath of the 

event. See Signal Peak, 37 FMSHRC at 476 (quoting Cougar Coal, 25 FMSHRC at 520–21) 

(“[P]ermitting operators to wait for a medical or clinical opinion would ‘frustrate the immediate 

reporting of near fatal accidents.’”); Consol Pa. Coal Co., LLC, v. FMSHRC, 941 F.3d 95, 111 

(3d Cir. 2019) (“The focus of the notification requirement must be on the information available 

at the time of injury, so post-hoc medical evidence is less probative.”). 

 While Respondent’s reliance on the Third Circuit’s approximation of the standard’s 

language with “life threatening” in Consol Coal, 941 F.3d at 106 n.13, is not facially defective in 

the same way as the inapt ALJ decisions, it is nonetheless deficient, because it misconstrues the 

Commission’s holding in Signal Peak, and glosses over the jurisprudential reasoning and record 

facts in that case. 

The Third Circuit’s decision, in noting the Commission’s use of the term “life 

threatening,” first observed (correctly) that the Commission “‘has not found it necessary to’” 

define “reasonable potential to cause death.” Id. (citing Signal Peak, 37 FMSHRC at 474). The 

Court then characterized the Commission as having found “that it was enough to say the accident 

was ‘life-threatening[,]’ because, in that case, the miner’s ‘injuries clearly [fell] within the realm 

of a reasonable potential to cause death[.]’” Id. (quoting 37 FMSHRC at 474 (citation and 

internal quotation marks omitted)) (emphasis added). 

45 FMSHRC Page 351
The Court’s analysis improperly implies a relationship that does not exist between the 

Commission’s clear reliance on the actual text of the standard and the term “life threatening:” 

Therefore, the Commission both here and in Signal Peak concluded that the injuries 

at issue had a reasonable potential to cause death under a “life threatening” 

standard. We follow the Commission’s lead in that regard and use “life 

threatening” as a working interpretation of “reasonable potential to cause death. 

Id. (emphasis added).27

 While the term “life threatening” was noted frequently in the factual background of 

Signal Peak, the Commission there, as explained above, did not use it as the basis for its 

conclusion that respondent failed to notify. In the Commission decision reviewed by the Third 

Circuit, the phrase “life threatening” was only used once, in the description of judge’s findings. 

See Consol Pa. Coal Co., 40 FMSHRC 998, 1001, 1010 (Aug. 2018) (affirming the judge’s 

decision wherein he concluded there was justifiable concern about possible internal bleeding, 

“which could be life threatening”). 

 The Commission, therefore, did not require the injury to be life threatening in either case. 

It did not adopt the respondent’s asserted interpretation in Signal Peak, and it did not specifically 

analyze the violation under that standard in Consol. As noted by the Third Circuit, it was simply 

“enough to say the accident was ‘life-threatening.’” This is because, while the injuries need not 

be life threatening to require reporting, life-threatening injuries are certainly within the ambit of 

those that do require it. 

b. An operator must err on the side of reporting where the known 

circumstances of the incident suggest a reasonable potential to cause 

the death of a miner involved—though the extent of injury may evade 

immediate determination. 

 To be held accountable for failing to report an accident under the cited standard, 

Respondent must have had knowledge, or have had reason to know, of event and injury 

circumstances that had a reasonable potential to cause death. This knowledge, and Respondent’s 

determination of the severity and requirement to notify MSHA, must be made based on the 

totality of the circumstances and focus on the information available during the reporting window, 

rather than on actual medical evidence. See Consol, 40 FMSHRC at 109, 111, aff’d, 941 F.3d 95 

(3d Cir. 2019). 

Further, the duty to notify must be interpreted from the perspective of a reasonable 

person in the circumstances, familiar with the mining industry and the protective purpose of the 

standard. Id. at 107; Ideal Cement Co., 12 FMSHRC 2409, 2415 (Nov. 1990). Finally, and most 

critically here, any reasonable doubt must be resolved in favor of notification. Consol, 40 

27 This problem does not diminish the logical or legal force of the Court’s otherwise wellreasoned opinion. 

45 FMSHRC Page 352
FMSHRC at 107. Reasonable doubt is based on the facts available during the reporting window. 

If the operator is unable to conclusively determine, within 15 minutes, that the accident does not 

involve an injury that has a reasonable potential to cause death, then even if the operator 

reasonably doubts the potential for fatal injury, it must notify MSHA. 

 It is possible to learn something—but not everything—from incidents where the 

Commission has found injuries to have reasonable potential to cause death based on the totality 

of the circumstances: 

• A miner blasted 50 to 80 feet through the air with a back protrusion, severe pain, and 

difficulty breathing or moving. Signal Peak, 37 FMSHRC at 471. 

• A miner crusted between multi-ton pieces of equipment, unable to move his legs [or feel 

one of them], and a distended stomach. Consol, 40 FMSHRC at 999. 

• A miner suffering electric shock before falling 18 feet and hitting his head, requiring 

CPR. Cougar Coal Co., 25 FMSHRC at 515. 

• A miner pulled through a roller—7-inch space—with a “misshaped” head, that required 

months of surgeries. Mainline Rock & Ballast, Inc., 693 F.3d 1181, 1183, 1189 (10th Cir. 

2012). 

• And finally, a miner suffering an obvious hip injury [noting the likely attendant 

complications] from a roof fall. Webster Cty. Coal, LLC, 39 FMSHRC 1131, 1136, 1137 

(May 2017) (ALJ). 

In each case, the Commission, court, or ALJ held that readily available information 

regarding the mechanisms of injury did not allow for any reasonable doubt as to whether the 

incident had a reasonable potential to cause death. But the severity of the injuries cited has been 

misinterpreted by Respondent as requiring that injuries be at least this severe, and that reporting 

is not required if the operator believes a miner’s injuries are somehow distinguishable from the 

particular examples found in Commission case law. 

There are several problems with this approach. First, the language of the standard is 

clearer than Respondent suggests. The primary term governing the requirement to “immediately 

contact MSHA at once without delay.” The standard then goes on to reinforce this by imposing a 

duty to report “within 15 minutes . . . once the operator knows or should know that an accident 

has occurred.” 30 C.F.R. § 50.10(b). 

The reporting policy is not susceptible to a case-by-case approach at the scene of a 

serious incident, where a decision must be made “immediately,” or within 15 minutes. 

Recognizing this, the Commission has not endorsed this approach. Rather, the Commission has 

determined that operators “must resolve any reasonable doubt in favor of notification.” Consol, 

40 FMSHRC at 1002 (quoting Signal Peak, 37 FMSHRC at 477). The Commission, and the 

Third Circuit in Consol, noted the impropriety of waiting for a more definitive medical analysis 

of a miner’s condition. See 941 F.3d at 111; 40 FMSHRC at 1004 (holding that “[t]he 

notification requirement does not, and cannot, rest upon a post-medical treatment analysis,” and 

that “[t]he decision whether to call must be made immediately and often by persons with little 

medical expertise”).

45 FMSHRC Page 353
This determination, which controls my decision, is consistent with the purpose of the 

standard. That purpose is not to enable care for the injured miner in circumstances such as this—

it is to ensure that the agency is aware of the incident so that it may conduct its own investigation 

and ensure that other miners are not in danger or will not be threatened in the future by the 

practices or conditions that led to the reportable incident. 

 I emphasize that 15 minutes is the absolute limit of the time available for an operator to 

make a reporting determination. MSHA used three different terms, or phrases, to stress the 

requirement to speedily investigate and make the determination before the 15 minutes runs: 

“immediately,” “at once,” and “without delay.” I would first note that regulations should be read 

with the understanding that MSHA intended each term to have a particular, nonsuperfluous 

meaning.28 Next, even if it was not reasonable to read these other terms as having a separate and 

distinct meaning from 15 minutes, I find that MSHA at least emphasized—three times in one 

sentence—the limited inquiry a miner can make before reporting.

 “Immediately” means “[o]ccurring without delay; instant.” Immediate, BLACK’S LAW 

DICTIONARY (11th ed. 2019). By adding “at once,” the regulations underscore the need for 

immediate reporting and suggest that the requirement to report arises and must be carried out 

instantaneously with the recognition of the duty. 

 By adding “without delay,” the regulation utterly refutes the notion that the duty to report 

may extend beyond the absolute limit imposed by the final requirement of the rule. Thus, an 

operator may not continue to investigate, examine, or otherwise look for reasons not to report 

beyond the final limit imposed by Congress—15 minutes. 

 There may be circumstances where reporting within 15 minutes is not possible or may be 

inadvisable. A situation where a manager is the only miner available to provide first aid, away 

from any means of calling MSHA or directing others to do so, would obviously better serve the 

intent of the Act by taking measures to care for an injured miner. In such circumstances, the 

Secretary should use her prosecutorial discretion not to cite the operator. 

Even if the operator is cited because of the Act’s strict liability provision, a de minimis 

penalty should be assessed. But the Commission may not substitute its judgment for that of 

Congress, which spoke clearly in drafting this provision. 

I find the failure to notify here especially troubling because the Commission has held that 

reporting an accident is non-prejudicial. Any actions that the operator takes that are inconsistent 

with the appropriate response to an accident may not be cited if there was not, in fact, an 

accident. Black Beauty Coal Co., 37 FMSHRC 687, 690 (April 2015). While there is certain to 

28 See Bailey v. United States, 516 U.S. 137, 146 (1995). Canons of statutory construction 

may be applied to regulations as well as statutes. See Northshore Mining Co. v. Sec’y of Labor, 

709 F.3d 706, 710 (8th Cir. 2013) (citing Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 

554 U.S. 33, 46–52 (2008)); Cremeens v. City of Montgomery, 602 F.3d 1224, 1227 (11th Cir. 

2010); Resnik v. Swartz, 303 F.3d 147, 152 (2d Cir. 2002); Black & Decker Corp. v. Comm’r of 

Internal Revenue, 986 F.2d 60, 65 (4th Cir. 1993). 

45 FMSHRC Page 354
be inconvenience and cost involved with notifying MSHA, this is a policy decision that has been 

made by Congress to protect miners from dangerous practices and conditions. See 30 U.S.C. § 

813(j). 

Finally, it is worth noting that the final rule provided examples for when the operator’s 

knowledge of the general character of an event should prompt notification, including “an 

explosion or inundation.” See Section IV.A.1.a., supra. MSHA also provided examples of 

reportable injuries: “concussions, cases requiring cardio-pulmonary resuscitation (CPR), limb 

amputations, major upper body blunt force trauma, and cases of intermittent or extended 

unconsciousness.” 71 Fed. Reg. at 71,434.29 The rule further says, “These injuries can result 

from various indicative events, including . . . roof instability.” Id. (emphasis added). 

The agency has thus provided the public with notice of its expectations. As with the 

exemplars provided by Commission cases, one can learn something from the examples provided. 

But the list is not exhaustive. Even so, most concussions are not “life threatening,” and major 

upper-body blunt force trauma may or may not be. The problem is not merely the nature of the 

injuries, but the “indicative events” that produced them. As the Commission has held, these 

circumstances are crucial to the need to report an incident to MSHA as an accident, and they 

were not fully considered here. 

2. Respondent was required to notify MSHA about the incident because the 

known character of the injury-causing event at the time it was first reported 

sufficiently demonstrated a reasonable potential to cause death. 

 a. Totality of the Circumstances 

 The notification from which the 15-minute MSHA notification window began to run was 

made to Mr. Allred at 5:08 p.m. See Signal Peak, 37 FMSHRC at 476 (“Once a person with 

sufficient authority to call learns of an event injuring a miner, the clock begins to run on the 

period for evaluation of whether the injury presents a reasonable potential to cause death and a 

determination of whether a call is required.”).30

Though Respondent claims the event was not violent—a “rib roll,” rather than a “rib 

burst”—the record demonstrates that at least two, and possibly three, management personnel 

knew within 15 minutes that material fell from the rib and covered Mr. Adams. And though 

29 I find it notable that the inspector’s citation specifically cited conditions listed in the 

preamble—i.e., “concussion” and “upper body blunt force trauma.” 

30 Mr. Cooper was notified by Conspec. Tr. 301–02. Mr. Allred called Conspec, to 

request Mr. Anderson [EMT], upon report of the incident from Charlie Wilson. Id. at 264. 

Nothing in the record demonstrates whether Conspec was already aware and had notified Mr. 

Cooper, or if it notified Mr. Cooper after the call from Mr. Allred. Mr. Gordon testified that Mr. 

Cooper called him between 5:20 and 5:25. Id. at 336. I therefore can only infer that Mr. Cooper 

was notified before 5:20, not that anyone was notified before 5:08. 

45 FMSHRC Page 355
neither Mr. Allred nor Mr. Cooper knew at the time, the record demonstrates that it took 

approximately 30 minutes to remove Mr. Adams from the coal. 

 The Secretary pointed to the severity of the injuries Mr. Adams suffered, as well as the 

fact that the burst threw him into the 8 Bay, causing a serious head wound. S. Br. 10; see also id.

at 14 (emphasizing that Mr. Bonnanci knew of a “pretty good gouge in his forehead”). She 

claimed what was known was that a rib burst blew coal 3 feet deep into the 8 Bay, Mr. Adams 

was buried under coal, had a 1.5-inch cut on his head from striking the 8 Bay, and was 

complaining about back, neck, and leg pain. Id. at 15–16. She acknowledged, however, that at 

the time of notification, Mr. Allred knew that Mr. Adams was buried under coal to his neck, and 

he called Conspec to send an EMT and get an ambulance as soon as he learned about the 

accident. Id. (citing Tr. 262). 

Regarding Mr. Cooper, the Secretary stated that he was aware of the burst, that miners 

had to dig Mr. Adams out, and that Mr. Adams was complaining about leg and neck pain. Id. at 

16 (citing Tr. 303–04, 323, 326). The record demonstrates that knowledge of the head wound 

and neck and leg pain was not obtained until Mr. Allred was at the incident site approximately 40 

minutes later. Tr. 266–67. 

 Respondent similarly mostly focuses on the severity of injuries, based on information 

available after the 15-minute reporting window had lapsed—i.e., known by Messrs. Allred and 

Cooper, and reported to other individual liability respondents, after Mr. Allred arrived at the 

incident site and observed Mr. Adams. These included a knee injury, possible back and neck 

injuries, and head laceration. Resp’t Br. 14. 

Respondent relies heavily on the arguments that Mr. Adams was conscious and 

coherent,31 and that nobody thought or stated that his injuries were life threatening. Id. at 14, 16–

17. Both are irrelevant, however. 

 The Commission has repeatedly rejected the assertion that because a miner is alert after 

an accident, a reasonable person could conclude there was no potential for death. Cougar Coal, 

25 FMSHRC at 520; Signal Peak, 37 FMSHRC at 476 (noting that while the miner presented 

some stable vital signs, all vitals were not taken, thus evaluation was not exhaustive or 

conclusive and did not establish that the miner's injuries posed no reasonable potential for death); 

see also Consol 40 FMSHRC at 998-1010. Further, “life-threatening” injury is not the standard, 

see Section IV.1.a., supra, and knowledge of the injuries was not obtained until after the 

reporting window had expired. 

31 As noted elsewhere in this decision, supra note 35, citing another ALJ’s correct 

assessment, the nature and extent of head injuries cannot be precisely known. In particular, the 

fact that someone is conscious and coherent following such an injury may not be probative of the 

reasonable potential of the injury to cause death. See Ian Lovett & Brett Forrest, The Navy SEAL 

Who Went to Ukraine Because He Couldn’t Stop Fighting, WALL ST. J., May 12, 2023, at A1 

(Under the sub-heading “I’ll walk out,” a sailor who had been wounded by a projectile that 

penetrated his head remained conscious and walked away from a fire fight, but lapsed into 

unconsciousness and died three days later.). 

45 FMSHRC Page 356
 Respondent correctly conceded that assessment of reasonable potential to cause death 

does not require a medical determination. Resp’t Br. 13 (citing Signal Peak, 37 FMSHRC at 

470). It then attempts, however, to use medical findings to argue that the rib burst was not 

violent, and that Mr. Adams’ vitals upon evacuation from the mine did not show that he had 

suffered injuries that in fact placed him in grave peril. See id. at 17–19 (noting that hospital tests 

did not show a violent impact because the head wound was a “surface fracture without 

significant trauma to the brain,” and that the ambulance crew reported maximum cognitive 

scores and fine vitals). 

Respondent cannot have it both ways, though. I agree with its original contention that it 

cannot rely on, and should not have waited for, a medical determination to decide whether the 

incident was reportable. My conclusion rests on the standard under the law as it has in fact been 

developed. See Consol, 40 FMSHRC at 111; Signal Peak, 37 FMSHRC at 476 (quoting Cougar 

Coal, 25 FMSHRC at 520–21).

 Based on testimony from Messrs. Adams, Anderson, Allred, and Cooper, the only 

information available to Respondent during the reporting window was that material had fallen 

from the rib and covered Mr. Adams, and that he was bleeding from a head wound.32 This is 

sufficient for a determination that the incident had the reasonable potential to cause death, based 

on the totality of the circumstances then known, and Respondent should have notified MSHA.33

 

32 I clarify here that the fact that Mr. Adams was bleeding from a head wound was 

“available” information, as it was known by Mr. Bonnanci and those working to uncover Mr. 

Adams. I acknowledge that Messrs. Allred and Cooper were not aware of the head injury until 

Mr. Allred’s arrival at the site. This, however, does not challenge the availability of the 

information to the operator, as I have found, infra, that Messrs. Allred and Cooper were required 

to be more inquisitive about the extent of the injuries. 

33 I note here that this violation was initially cited under a different subsection, which 

requires reporting an accident involving “an entrapment of an individual at the mine which has a 

reasonable potential to cause death.” 30 C.F.R. § 50.10(c); see Order Granting Motion to Amend 

Order, Docket no. WEST 2021-0188 et al., at 2 (Apr. 27, 2022). Based on the amount of time it 

took to uncover Mr. Adams, there was a possibility that this action ultimately could have been 

affirmed under another provision of section 50.10 as well. This is further evidence that should 

have compelled reporting of this accident. 

45 FMSHRC Page 357
 I find that a rib burst or roll that buries a miner and results in a head wound is an event 

that has a reasonable potential to cause death. Immediately after this incident, the mine focused 

appropriately on uncovering Mr. Adams. Doing so took longer than the time afforded for 

reporting an accident. See 30 C.F.R. § 50.10 (requiring notification “immediately . . . at once 

without delay and within 15 minutes” when it knows or should know that an accident has 

occurred).34

Additionally, the operator may have no information, even if the miner is conscious, about 

the extent of the injuries, and whether they have a reasonable potential to cause death. 

Respondent therefore should have erred on the side of reporting, see Consol, 40 FMSHRC at 

107, because there was, at best, reasonable doubt as to whether Mr. Adams’ [unknown] injuries 

had a reasonable potential to cause death. 

 Mr. Adams’ head wound, while unnecessary to determine this incident was in fact 

reportable, further demonstrated a reasonable potential to cause death.35 Mr. Adams had a skull 

34 This is the shortest time specified in the Act or regulations for taking any action, and 

was added by Congress (“and within 15 minutes”) in the MINER Act. There is also a 

requirement to withdraw all miners from the mine if the main mine fan stops and ventilation is 

not restored within 15 minutes. 30 C.F.R. § 75.313(c)(1). This reflects the agency’s clear concern 

that miners be protected by prompt action and underlines the urgency of the reporting 

requirement. 

35 Another Commission judge has aptly described the danger of head wounds: 

[G]etting hit on the head by a heavy object can lead to an intracerebral 

hemorrhage, i.e., bleeding in the brain. One of the most common causes of brain 

hemorrhage is head trauma. This fact is now common knowledge and is certainly 

something management of a large mine should know. These hemorrhages have a 

reasonable potential to cause death if not diagnosed and treated quickly. Adverse 

symptoms of a brain hemorrhage will often not be visible within 15 minutes of an 

accident. 

Solvay Chems., Inc., 43 FMSHRC 477, 489–90 (Nov. 2021) (ALJ). Though this is a nonbinding ALJ decision, I find it persuasive regarding “known unknowns” associated with head or 

other injuries attendant to rib falls and burials. The operator petitioned the Commission for 

review of this decision, which was granted. See Direction for Rev., sub nom Sec’y v. American 

Soda, LLC Formerly Known as Solvay Chemicals, Inc. (May 12, 2021). The Commission heard 

oral argument in the case on May 16, 2023. On May 18, two Commissioners said they would 

vote to affirm the ALJ’s holding that the accident was reportable. If the Commission holds in 

accordance with their statements at the public meeting, the ALJ’s decision would stand as if 

affirmed but would be non-precedential. See Sec’y of Labor v. Consolidation Coal Co., 895 F.3d 

113, 116, 117 n.2 (D.C. Cir. 2018) (holding that a two-to-two division results in the ALJ’s 

decision being the final, reviewable, agency action). The facts in this case are similar to the facts 

in Solvay/American Soda, but distinguishable. Thus, the Commission’s decision is not likely to 

have any precedential effect on my decision here. 

45 FMSHRC Page 358
fracture diagnosed at the hospital. Reacting miners at least knew he had a head laceration 

through which they could “see his skull.” 

That information was not initially known to Messrs. Allred or Cooper (or Mr. Gordon, 

though the record does not definitively demonstrate that he was notified within the 15-minute 

window). But importantly, neither inquired into any of Mr. Adam’s injuries.36 An operator 

cannot escape its duty to report by remaining uninformed of possible injuries. See Mainline Rock 

& Ballast, Inc., 693 F.3d at 1189. Like Mainline, knowledge of a significant laceration, and 

likely skull fracture, if inquired about, would have demonstrated a need to notify MSHA. See Tr. 

93, 243 (demonstrating that Mr. Anderson “could see his skull” and it was “dented in,” and that 

Mr. Bonnanci saw “a pretty good gouge in his forehead”). 

I also note that the extent of injury posed by closed-head trauma cannot be known 

without expert medical diagnosis, but such injuries must be assumed to be extremely serious 

until a medical evaluation may be obtained. See Solvay Chems., Inc., 43 FMSHRC at 489–90. If 

the standard requires reporting if there is any reasonable doubt—and it does—the potential and 

unknown health risks posed by a closed head injury must compel reporting. 

b. A reasonably prudent, experienced miner would have known that 

such an incident had reasonable potential to cause death, or would 

have at least had reasonable doubt as to whether it did not. 

 As discussed above, such an incident—even with unknown injuries—has a reasonable 

potential to cause death. Respondent’s witnesses relied heavily on personal observation, or the 

lack of verbal reporting, that Mr. Adams’ injuries were “life threatening.” Some may have relied 

on personal experience, such as the manager who claimed, “I’ve been buried under coal myself.” 

Tr. 387 (testimony of Jake Wilson). This was incorrect. With full appreciation for Mr. Wilson’s 

grit, and the toughness and resiliency displayed on the job routinely by other miners, the 

Commission’s precedents require a more sober reflection about miner safety and the possible 

injuries attendant to the entrapment of miners by falling material and other such incidents. 

 It doesn’t matter whether Respondent inappropriately relied upon a “life-threatening 

injury” standard honestly or to minimize its required incident reporting. I need not make such a 

determination, as it is sufficient that a reasonably prudent, experienced miner should have known 

that a rib burst burying a miner has a reasonable potential to cause death, because such 

movements regularly have been the cause of fatal injuries to miners. Even if it relied on what it 

learned later, though, Respondent also would have been on such notice had it made proper 

inquiry into known or possible injuries.

36 Mr. Allred did not ask about any injuries during the initial call, or during his next call 

with Charlie Wilson while he was driving to the incident site. Tr. 262–63, 265–66. Knowledge of 

the head laceration, along with his assessment that Mr. Adams’ injuries were not life threatening, 

did not occur until his arrival at the incident site much later. Mr. Cooper only testified to 

assessments reported to him by Mr. Allred. Id. at 303–304. He was informed of the incident by 

Conspec, but nothing in the record demonstrates that he made further inquiry into Mr. Adams’ 

injuries for over half an hour. Id. at 301–02. 

45 FMSHRC Page 359
 At best, the operator would have had reasonable doubt as to whether the Mr. Adams’ 

injuries had a reasonable potential to cause death, as it could not conclusively determine they did 

not. First, there was insufficient inquiry into whether there was a reasonable potential to cause 

death until Mr. Allred observed Mr. Adams, spoke with Mr. Anderson, and reported to Mr. 

Cooper that he did not think Mr. Adams’ injuries were life threatening. All other reports of such 

potential were relayed to higher management or personally observed once Mr. Adams was 

evacuated from the mine—more than an hour after the incident. 

 Next, there are “known unknowns” associated with rib bursts, burials, and head injuries.37

Miners worked to uncover Mr. Adams for approximately 30 minutes. Mr. Bonnanci was aware 

of Mr. Adams’ head laceration from contact with the 8 Bay during that time. The miners working 

to uncover Mr. Adams, and those to whom the incident was reported, did not, and could not, 

know about possible further injuries during the reporting period. 

 The facts available to Messrs. Allred and Cooper in the 15 minutes after notification 

would not enable a reasonable miner to conclusively determine that the accident that injured Mr. 

Adams, and his unknown injuries, did not have the reasonable potential to cause death. This is 

demonstrated by the fact that such conversations about whether the accident was reportable 

continued throughout the efforts to uncover Mr. Adams, his evacuation from the mine, his 

departure to the hospital, and even after hearing about the extent of his injuries assessed at the 

hospital. 

 Though I have already found that the operator’s agents should have been more inquisitive 

about the extent of the accident and Mr. Adams’ injuries, one might argue that anybody who 

could have informed Mr. Allred further was working—“feverishly,” no less—to uncover Mr. 

Adams. Such a defense is inadequate for two reasons. First, the record demonstrates that Mr. 

Allred in fact spoke to Charlie Wilson during his drive to the site. Second, this reinforces the 

existence of reasonable doubt. It is doubtful that the responsible person with authority to call 

MSHA will be at, or even near, an accident site when it occurs. If every available person is 

engaged in trying to save an injured miner, causing inability to obtain further information from 

them, that is sufficient to demonstrate reasonable doubt that the injuries do not have a reasonable 

potential to cause death. Respondent was therefore required to err on the side of reporting—

enabling MSHA response and inspection to prevent others from being similarly hurt. See Signal 

Peak, 37 FMSHRC at 477 (citing 71 Fed. Reg. at 71,431). 

B. Gravity 

 1. Likelihood 

 The hazard—inability of MSHA to respond or investigate—in fact occurred. MSHA was 

not informed until the next day, and the incident area had been mined past before an accident 

investigation was ordered. I therefore affirm the likelihood determination. 

37 Respondent should have known about—i.e., should have made adequate inquiry into—

Mr. Adams’ head laceration and any other possible injuries. See Section V.A.2.a., supra. 

45 FMSHRC Page 360
 2. Severity 

 The Secretary asserts the severity of the contemplated injury is permanently disabling. 

The severity here is that of an injury resulting from the contemplated hazard, i.e., a similar 

incident caused by MSHA’s inability to investigate and validate the safety of the violative area. I 

have already found that Mr. Adams’ injuries were appropriately designated as permanently 

disabling and had the reasonable potential to cause death. Any other miner affected by a similar 

incident would therefore be exposed to similar injuries. I therefore affirm the severity as 

characterized by the inspector. 

 3. Number of Persons Affected 

 The inspector assessed that one miner would be affected by the hazard. I find it 

reasonable that at least one miner was vulnerable to a similar hazard during continued mining 

before MSHA inspection. I thus affirm the assessment of persons likely to be affected. 

4. S&S 

I affirm the S&S designation for the following reasons. 

a. Step 1: The violation has been established.

 I have found that a failure to notify MSHA about an incident with a reasonable potential 

to cause death occurred. See Section V.A.2., supra. This is sufficient to constitute an underlying 

violation of a mandatory safety standard for the purposes of Mathies Step 1. 

b. Step 2: The violation was reasonably likely to result in the discrete 

safety hazard against which the regulation is directed—another 

similar occurrence due to MSHA’s inability to promptly investigate.

 The standard requires that operators notify MSHA within 15 minutes of an accident with 

the reasonable potential to cause death. An ambulance and life flight were on site when Mr. 

Adams was evacuated to the surface, so there is no contention that the failure to notify MSHA 

would have resulted in impairment of otherwise mobilized MSHA rescue efforts. But another 

purpose of reporting is to enable MSHA to investigate immediately. The Commission has held: 

[The operator] contends that the failure to timely report the accident to MSHA did 

not contribute to a hazard, because MSHA’s involvement was not necessary to 

remedy [the] injuries. This interpretation unduly narrows the purpose of section 

50.10. While immediate rescue efforts are a significant concern, section 50.10 is 

also intended to facilitate MSHA’s ability to investigate and remedy the cause of 

the accident. 

Signal Peak, 37 FMSHRC at 480 (emphasis added). The contemplated hazard here then is a 

similar rib fall incident caused by lack of MSHA investigation and remedy. 

45 FMSHRC Page 361
 The Secretary correctly asserts the failure to report interfered with MSHA’s ability to 

investigate. S. Br. 16. Respondent counters that the standard is not what “could” occur, Resp’t 

Br. 26 (citing Wolf Run Mining Co., 32 FMSHRC 1669, 1677 (Dec. 2010)), thereby arguing that 

another similar accident is not reasonably likely, id. at 27. Respondent incorrectly asserts that the 

Secretary’s analysis is directed at the rib roll, rather than the failure to report. Id. at 27–28. 

 The analysis is focused on another rib incident at a nearby or similarly inadequately 

supported area, during continued mining operations, due to lack of MSHA investigation of the 

violative incident. There is sufficient evidence in the record demonstrating that this hazard is 

reasonably likely. There was a similar incident nearby five days prior. This incident occurred 

with additional mitigation apparently added following the first incident. 

Miners worked in the area—even if only to inspect, clear the accident site, and conduct 

further mitigation—between the accident and Mr. Madrigal’s visit. See Tr. 347. It is therefore 

reasonably likely that the violation would cause another similarly hazardous occurrence prior to 

an MSHA inspection. See Signal Peak, 37 FMSHRC at 473, 481 (affirming a judge’s S&S 

finding where a failure to report delayed MSHA involvement and exposed miners to uncorrected 

conditions, a similar fall, and similar resulting injuries). 

 Respondent claims MSHA had ample opportunity to inspect after being informed the 

next morning, and that Messrs. Gordon, Wilson, and Roberts inspected and remedied the 

conditions the previous night. Resp’t Br. 28. Neither contention allays the hazard because MSHA 

was unable to inspect and propose a remedy, which is the point of the provision, and the same 

operator installed mitigation after the first incident that was clearly ineffective.38

c. Step 3: Lack of MSHA investigation was reasonably likely to result in 

similar injury from falling rib material.

 The Secretary asserts that miners working in the area following the incident were 

exposed to dangers from an uncontrolled rib. S. Br. 16. Respondent, without specifically 

referencing Step 3, relies on the same contentions regarding its own inspection and mitigation to 

argue that further miners would not likely suffer similar injury from a similar event. Resp’t Br. 

28. 

 Assuming the hazard—a similar incident due to MSHA’s inability to promptly 

investigate—occurs, a miner is reasonably likely to be injured by falling rib material. I have 

already found that a fractured skull or vertebra are reasonably likely to occur from a rib burst. 

See Section IV.B.4.c., supra. Given that such injury did in fact occur, it is reasonably likely that 

38 Also, the standard not only provides when the report to MSHA must be made, but how, 

including the agency’s toll-free number in the regulation. 30 C.F.R. § 50.10. The ease of 

compliance for this provision also bears on my decision. First, it is non-prejudicial if it turns out 

the incident was not reportable. Second, Congress’ emphasis on the haste with which the 

decision must be made requires miner training that makes reporting almost a reflex. The stakes 

are too high, and every miner and manager should train to immediately report an incident where 

reasonable doubt exists as to a miner’s condition. 

45 FMSHRC Page 362
the failure to notify MSHA would result in a similar occurrence during continued mining, and 

that another miner would suffer similar injuries to those of Mr. Adams.39

d. Step 4: It is reasonably likely that such an injury would be of a 

reasonably serious nature.

 I have found that the same injuries from falling rib material are reasonably likely. I have 

already found such injuries to be of a reasonably serious nature. See Section IV.B.4.d., supra. 

The resulting injuries from this violation are therefore reasonably likely to be of a reasonably 

serious nature. 

C. Negligence 

 I find the negligence was properly characterized by the inspector as “high.” Management 

personnel in the position to stop work and notify MSHA are familiar with the mining industry, 

the relevant facts, and the protective purpose of the provision. This was evidenced by their 

consistent questioning and reporting regarding whether Mr. Adams’ injuries were life 

threatening. A reasonably prudent person in their position should have recognized that the 

incident had a reasonable potential to cause death and required MSHA notification. 

 The Commission has affirmed a moderate negligence finding where an operator should 

have known a reportable accident occurred, but the judge acknowledged that it acted quickly and 

efficiently to help the miner and did eventually alert MSHA. Consol Pa. Coal Co., 40 FMSHRC 

at 1001, 1010. The Commission has also found high negligence, however, where an operator 

purportedly delayed notification because of its focus on evacuating survivors. Wolf Run Mining 

Co., 35 FMSHRC 3512, 3518 (Dec. 2013). The record there demonstrated that the operator was 

concerned about a shut-down, and it was also sufficient for high negligence that nobody tried to 

contact MSHA at all, nor was there any real effort to investigate the incident for more than an 

hour, after Respondent knew there had been a rib burst that had buried a miner in coal. Id. at 

3516, 3518. 

 In the oft-cited Signal Peak decision, the Commission found reckless disregard where the 

operator failed to take any steps to ensure the roof fall was investigated, thereby placing miners 

at future risk. 37 FMSHRC at 481–82. It held that the duty to report was obvious at multiple 

points in time. Id. at 482. The Commission cited the significant damage and severe and obvious 

injuries caused by the accident. 

It took one-and-a-half hours to transport the injured miner out of the mine in Signal Peak, 

and he required a life flight. Id. The operator never contacted MSHA and was concerned about 

resuming production. Id. In resuming production, it changed conditions at the accident scene. It 

39 This is based on the likelihood—and occurrence—of the injury that I affirmed as 

“permanently disabling.” The fact that the injury was not fatal, and not designated as such on the 

citation because the inspector assessed the actual outcome here, see supra note 21, does not 

preclude the fact of violation. While this injury was “permanently disabling,” it is the character 

of the accident that had the reasonable potential to cause death. 

45 FMSHRC Page 363
did nothing to investigate and prevent recurrences. Id. MSHA found out about the accident from 

a newspaper reporter days later. The operator filed a 7000-1 accident report one-and-a-half hours 

after the safety director spoke with MSHA and was “anything but forthcoming.” Id.

 The Secretary claimed the injuries in this case were obvious, and management was 

uninquisitive. S. Br. 17–18. It further asserted that Respondent prevented MSHA from 

investigating, maintaining a high degree of danger to miners during continued work. Id.

Respondent emphasized that only knowledge of laceration, knee injury, and possible back or 

neck injury was available. Resp’t Br. 24–25. It also noted that Mr. Cooper filed the accident 

report the next morning. Id. at 24. 

 I have found that the duty to report was obvious from the time of notification—a rib burst 

burying a miner in coal with unknown injuries. See Section V.A.2., supra. I have not found that 

Respondent was more concerned with resuming production. Though one might infer it from the 

failure to report both the August 20 and Mr. Adams incidents, and continued work in the area 

without an MSHA inspection, it is clear from the record that Respondent relied heavily on 

whether there was an assessed life-threatening injury to evaluate reportability. 

 Though the head laceration, signifying some blunt force trauma, was obvious, Mr. 

Adams’ injuries and the cause were not as severe as the circumstances in Signal Peak. It took a 

significant time to evacuate Mr. Adams, both from under the coal, and from the mine, and 

Respondent did not notify MSHA until an inspector came and inquired about the incident. 

Respondent also changed conditions at the accident scene by continuing to clean, inspect, 

and mitigate the area.40 Operator managers investigated the incident themselves and installed 

mitigation, but there was never an MSHA investigation to assist in preventing recurrence. 

Finally, Mr. Cooper filed the report after being questioned by Mr. Madrigal. 

 I agree that the operator did not exhibit reckless disregard because there has been no 

demonstration that Respondent did not report specifically because of concern for continued 

40 Respondent demonstrated that Mr. Madrigal investigated the injury scene and other 

inspectors took three days to attempt to inspect. Resp’t Br. 24. The circumstances surrounding 

the investigation are admittedly strange. The record shows that Mr. Madrigal went underground 

the day after the incident, measured the accident site rib deformation, and was informed about 

injuries, which he reported to Mr. Lyons. Tr. 126–27, 312. Operations continued, and the 

violative area had been mined past by the time Mr. Lyons went to the mine. Id. at 128. Neither 

inspector issued a K-Order. Id. at 130, 176. Mr. Lyons issued the citation based on Mr. 

Madrigal’s information and mine employee interviews. Such actions likely caused confusion for 

Respondent as to whether it was in violation or could continue operation. It is not, however, 

inappropriate for an inspector to issue a citation based on information obtained without 

inspecting a site. It was not demonstrated that Respondent continued coal production between the 

incident and Mr. Madrigal’s visit. Miners did, however, continue working to clean the area and 

install mitigation. This occurred without an MSHA inspection and validation of the area, see

Section V.B.4.b., supra, posing the contemplated risk of similar incident for those still working 

in the area where there had been two recent falls. 

45 FMSHRC Page 364
production and a desire to avoid MSHA enforcement. The circumstances are, however, more 

severe than those demonstrating moderate negligence. Respondent demonstrated a serious lack 

of reasonable care in failing to enable MSHA to investigate an obvious injury. The Secretary 

therefore demonstrated that this violation was the result of the operator’s high negligence. 

D. Unwarrantable Failure 

 The Secretary argues that multiple managers knew of the incident and had sufficient 

information about the laceration and neck, back, and leg pain to prompt reporting. S. Br. 17. She 

claims the injuries were obvious, citing the deep laceration, blood through the gauze, and 

obvious pain. Id. at 17–18. The Secretary further asserted no management asked if the injuries 

were life threatening,41 and the failure to report prevented MSHA investigation, creating 

significant danger for miners continuing to work. Id. at 18. 

 Respondent asserts reporting violations do not fit readily with an unwarrantable failure 

analysis. Resp’t Br. 23–24. It emphasizes that the time the violation existed was until the next 

morning, and that it was not on notice that greater efforts were required. Id. at 24. It described its 

abatement as describing the injury to the inspector and field office supervisor and filing the 

7000-1 form. Id.

Respondent claims there was no degree of danger because Mr. Madrigal investigated the 

injury scene and others neglected attempts to inspect for days. Id. Finally, it relies heavily on 

lack of operator knowledge, claiming direct observations did “not indicate a danger of death” 

and that nobody reported “life-threatening” injuries. Id.42

 For the following reasons, I find the violation was the result of Respondent’s 

unwarrantable failure to comply with a mandatory standard. 

 

41 This contention is only true to the extent that these inquiries were not made, or at least 

confirmed, until after the reporting window. The record demonstrates that each respondentmanager discussed whether Mr. Adams’ injuries were life threatening with the person who 

notified them, or they came to that conclusion based on their own observations. Tr. 303, 318–19, 

326, 338, 376, 439–40. I found management did not seek to assess the severity of Mr. Adams’ 

injuries until Mr. Allred arrived on site 40 minutes later and as such, were inexcusably 

uninquisitive about the injuries during the reporting window. See Section V.D.1., supra. 

42 Respondent reiterates here that the only available information before medical 

evaluation at the hospital was the laceration, knee injury, and possible neck or back injury. Id. at 

24–25. 

45 FMSHRC Page 365
1. Respondent should have known of the existence of the violation because of 

the nature of the incident and probable, yet unknown, injuries. 

 Both parties are incorrect in their use of Mr. Adams’ determined injuries to claim 

knowledge or lack thereof. Respondent should have known43 of the violation—that it was 

required to notify MSHA—within 15 minutes after the report to Mr. Allred because of the nature 

of the incident and its inability to know the attendant injuries. I have found that material falling 

from a rib and covering a miner are sufficient for a reasonably prudent, experienced miner to 

assess that an incident has a reasonable potential to cause death. See Section V.A.2., supra. 

 The existence of the skull fracture, vertebra fracture, and knee injury were not 

conclusively known until Mr. Adams’ treatment at the hospital. At best, the Secretary may 

appropriately point to the existence of Mr. Adams’ obvious head laceration to claim that blunt 

force trauma occurred, and immediate knowledge of that injury should be sufficient for 

notification. 

I have found that such a head injury is reportable because of unknown, but probable, 

brain injury, and that Respondent was inexcusably uninquisitive about Mr. Adams’ injuries 

between the first report and Mr. Allred’s observation. See Section V.A.2.a., supra. Respondent’s 

knowledge is therefore an aggravating factor in favor of unwarrantable failure. 

 2. The violation was sufficiently obvious for the same reasons as above. 

 Because Respondent should have known of the existence of the violation based on a rib 

burst’s reasonable potential to cause death, and emphasizing the immediately apparent head 

injury, I find that the violative condition was obvious. The obviousness of the condition is an 

aggravating factor in favor of an unwarrantable failure finding. 

3. The violation posed a high degree of danger because of the risk of injury to 

miners continuing to work in the area from a similar incident. 

 As with the S&S analysis, I find the danger associated with this reporting violation is that 

of a similar rib burst and injury to miners continuing to work in the area without MSHA 

investigation. See Section V.B.4.b., supra; Signal Peak, 37 FMSHRC at 480. This element does 

not include duration, only the degree of danger posed by any work conducted where the danger 

continues due to MSHA’s inability to inspect. See Midwest Material Co., 19 FMSHRC 30, 35 

(Jan. 1997) (“The judge’s reliance on the relatively brief duration of the violative conduct was 

misplaced, in view of the high degree of danger posed by the hazardous condition and its 

obvious nature.”). 

43 “[T]he Commission . . . explicitly stated that aggravated conduct more than ordinary 

negligence can be demonstrated through a “knew or should have known standard.” The Am. 

Coal. Co., 38 FMSHRC 2062, 2081 n.27 (Aug. 2016) (citing Emery Mining Corp., 9 FMSHRC 

1997, 2002–04 (Dec. 1987); E. Associated Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991) (“A 

lack of actual knowledge by . . . management . . . does not necessarily bar an unwarrantable 

failure finding.”)); see also Brody Mining, LLC, 37 FMSHRC 1687, 1699 (Aug. 2015). 

45 FMSHRC Page 366
 Respondent incorrectly conflates its argument for this element with that relating to the 

length of time the condition existed. The fact that Mr. Madrigal investigated the injury scene the 

next morning does not effectively challenge the degree of danger. At best, its statement that 

others neglected to inspect for days after learning of the incident could be construed as an MSHA 

acknowledgement that the danger posed was not high. I do not accept that, as I have already 

found that serious injury is reasonably likely to result from this violation. 

 Managers went to the incident site to inspect and ensure mitigation, but they did not 

enable MSHA to do so. Mr. Allred testified he told miners to stay out of the area until Messrs. 

Gordon and Wilson—whom he knew were on the surface—could evaluate. Tr. 273. Messrs. 

Gordon and Wilson testified that they checked the site and found that a prop had been dislodged, 

and that much of the rib mesh was still attached. Id. at 346, 380–82. Mr. Gordon testified that 

they further inspected the area that evening. Id. at 347. This sufficiently demonstrates that miners 

were working in the area after the incident but before an MSHA investigation. 

I have found that the lack of an MSHA investigation resulted in significant danger to 

miners continuing to work in an area with clearly inadequate rib support—demonstrated by two 

rib bursts in the previous five days and no MSHA investigation following either incident. This 

violation therefore posed a high degree of danger and is an aggravating factor in favor of an 

unwarrantable failure finding. 

4. The extent of the violation was significant because it affected the safety of the 

entirety of the long wall. 

 The extent is the scope or magnitude of the violation. See E. Associated Coal Corp., 32 

FMSHRC 1189, 1195 (Oct. 2010) (citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 

1992)). A judge has found an extensive violation of a reporting violation, considering the 

abatement measures taken to terminate the relevant orders. See Pine Ridge Coal Co., 33 

FMSHRC 987, 1017 (Apr. 2011) (ALJ) (citing E. Associated Coal Corp., 32 FMSHRC at 1196; 

Peabody Coal Co., 14 FMSHRC at 1263) (“[T]he failure to report the “near miss” accident . . . 

extensively inhibited the use of MSHA expertise to timely investigate and institute critical, proactive corrective actions through the [section] . . . .”). 

 Having found that the danger of this violation is the occurrence of a similar event in a 

working area that has been demonstrated to be inadequately supported, I find that the extent of 

the violation includes the entire 8 Right Longwall. Ex. GX-1, 5. I further find the cited ALJ 

decision instructive, and I hold that the failure to report “extensively inhibited” MSHA’s 

investigation and possible mitigation.

44 The extensiveness of this violation is therefore an 

aggravating factor in favor of an unwarrantable failure finding. 

44 Though I find it sufficient that the extent of the violation affected the entire longwall, 

and the failure to report extensively inhibited investigation, I note that another judge has found a 

violation extensive based on the number of mine management with knowledge. See M-Class 

Mining, LLC, 39 FMSHRC 1013, 1030 (May 2017) (ALJ) (noting that five management officials 

 (continued...) 

45 FMSHRC Page 367
5. The length of time the violative condition existed was minimal because, 

though initiated by the inspector, Respondent informed MSHA the next 

morning. 

 The violation was marked “terminated” on the same day it was issued. See Ex. GX-1 

(“This event has already occurred, discussions with the mine operator were held about this 

subject.”). Mr. Madrigal visited the mine the next day—August 26—and the citing inspector 

visited the day after. Tr. 114–15. 

 The record demonstrates that Mr. Lyons did not go underground to inspect the area. Tr. 

128. Mr. Lewis went underground on August 27. Id. at 166–67. At the latest, the condition was 

abated on August 27—approximately 36 hours after the incident—upon Mr. Lewis’ inspection. I 

find it more likely, however, that the condition was abated following Mr. Madrigal’s inspection 

on the morning of August 26. This is because Mr. Lyons testified that Mr. Madrigal informed 

him about the incident, his inspection, and Mr. Adams’ injury, and Mr. Lyons did not conduct an 

inspection himself. 

The length of time the violative condition existed was therefore approximately 14 hours. 

The Commission has found that the duration of a minimum of two shifts was an aggravating 

factor in favor of an unwarrantable failure finding. See The Am. Coal Co., 39 FMSHRC 8, 22 

(Jan. 2017). I find that the duration here is not an aggravating factor. 

6. Respondent’s efforts in abating the condition were sufficient because an 

MSHA representative was aware and able to inspect. 

 I have found that the condition was obvious, and Respondent clearly relied on the wrong 

standard—"life-threatening” injury—to conclude the incident was not reportable. Mr. Cooper 

intended to, and did, file a 7000-1 form. Even if prompted by questions at the presence of the 

stretcher, Tr. 118, he informed Mr. Madrigal about the incident, and Mr. Madrigal inspected. 

Likely believing this sufficient, Mr. Cooper still emailed other MSHA personnel. 

I take the “discussions” cited for termination of the citation as those that occurred 

between Messrs. Madrigal and Cooper. First, there was no call to the hotline and no further 

44 (...continued) 

had knowledge and neglected to comply, and that upon the inspector’s instruction that it was 

reportable, delayed reporting and was evasive). Here, it is only determinative that Messrs. Allred 

and Cooper had knowledge within the first 15 minutes, but three other mine managers were 

informed in short order. Respondent never did notify MSHA via the provision’s stated method. 

See Tr. 148 (receiving confirmation from Mr. Lyons that “telling Rudy [Madrigal]” is not 

“contacting MSHA at the . . . number within 15 minutes”); id. at 327 (receiving confirmation 

from Mr. Cooper that he only emailed MSHA representatives after seeing Mr. Madrigal). I 

acknowledge that there may have been confusion as to whether informing Mr. Madrigal, and his 

subsequent inspection, was sufficient, and I therefore find this is not comparable regarding not 

reporting. 

45 FMSHRC Page 368
notification to Mr. Lyons following Mr. Madrigal’s inspection. Mr. Lyons did not inspect the 

site. The abatement—which would require such inspection—was therefore based on either Mr. 

Madrigal’s inspection on August 26, or Mr. Lewis’ on August 27, and the associated discussions. 

And since Mr. Cooper contacted MSHA officials on August 26, I take that as the abatement time 

recognized in Mr. Lyons’ September 10 citation. Respondent’s abatement efforts are therefore 

not an aggravating factor in favor of an unwarrantable failure finding. 

7. Respondent had not been placed on notice that greater efforts were necessary 

for compliance because it had few similar citations, and MSHA provided no 

prior warnings in that regard. 

 An operator’s history of similar violations puts the operator on notice that greater 

efforts are necessary. See Brody Mining, LLC, 37 FMSHRC at 1699; Big Ridge, Inc., 35 

FMSHRC 1525, 1530 (June 2013) (disagreeing with the contention that past violations can only 

provide notice if they are factually indistinguishable from the cited condition). The record 

demonstrates only one other reporting violation. Ex. GX-3. The Secretary did not demonstrate 

any communications wherein MSHA warned Respondent about failures to report. 

 The inspector noted prior injuries in the citation before assessing unwarrantable failure. 

See GX-1, DOL 0036 (“The mine operator has had two injuries on the Longwall face in the last 

6 months, six in the last two years.”). These injuries would likely be more appropriately cited in 

the rib control citation—even though I can only assume that they were the product of such a 

violation. No evidence was presented that Respondent failed to notify MSHA about any such 

injuries. They are therefore irrelevant. This element is therefore not an aggravating factor in 

favor or an unwarrantable failure finding. 

 8. Conclusion 

 The factors in favor of an unwarrantable failure finding include Respondent’s knowledge, 

the obviousness of the violation, the high degree of danger, and the extent of the violation. The 

duration, abatement efforts, and whether Respondent was on notice that greater efforts were 

necessary, are not supportive of such a finding. I conclude that this violation was the result of 

Respondent’s unwarrantable failure to comply with a mandatory standard. See Peabody Midwest 

Mining, LLC, 44 FMSHRC at 525 (“[T]he Commission has held that brief duration does not 

militate against a finding of unwarrantable failure where the condition is distinguishable by its 

high degree of danger and obvious nature . . . .”). 

E. Penalty 

 Respondent has been cited once in the last two years at this mine for violation of this 

regulation. Ex. GX-3. This is a low rate of repeat violations, but does reflect a misperception of 

the duty to report. I accept that the Secretary has properly evaluated the size of the mine. The 

parties have stipulated that payment of this penalty will not affect the Respondent’s ability to 

continue in business. Stips. ¶ 7. 

45 FMSHRC Page 369
 Respondent made efforts to achieve compliance through its verbal report to Mr. Madrigal 

and its 7000-1 report, though I have found such efforts prompted and lacking overall. 

I have affirmed the Secretary’s gravity, negligence, and unwarrantable failure 

determinations. While the failure to report was made by a lower-level manager, and ratified by 

the mine’s safety director, I find that the violation results from a failure of mine management 

generally to consider the important purposes served by the immediate notification requirement 

and, flowing from that, a failure to ensure that responsible persons are properly trained to notify 

the agency immediately when an accident occurs. 

I do not, however, find this to be willful or intentional misconduct. I consider this a 

serious lack of reasonable care due to the operator’s improper reliance on a faulty assessment of 

the injury over an inappropriately protracted timeline. 

MSHA proposed what is effectively a maximum penalty in this case. Yet there must be a 

difference in penalties between a failure such as the one here and a finding, for instance, of a 

purposeful failure to report, based on the chance that the injury will eventually not be assessed to 

have a reasonable potential to cause death, or directing that a known injury not be reported to 

avoid a halt to production. Considering the circumstances and all the factors in Section 110(i) of 

the Act, I therefore assess a penalty of $50,000.00. 

VI. INDIVIDUAL LIABILITY FOR VIOLATION OF SECTION 50.10(B)45

A. Each Cited Respondent Was an Agent. 

 Each cited respondent here was an agent of Canyon Fuel Company, LLC. An agent is 

defined as “any person charged with responsibility for the operation of all or a part of a . . . mine 

or the supervision of the miners . . . .” 30 U.S.C. § 802(e).46

The Commission has held that an agent is one who “is authorized by another, the 

principal, to act on the other’s behalf,” having authority to represent the principal in “dealings 

that affect the principal’s legal rights and obligations.” Rochester & Pittsburgh Coal Co., 13 

FMSHRC 189, 195 (Feb. 1991) (citing Johnson v. Bechtel Assocs. Pro. Corp., 717 F.2d 574, 579 

(D.C. Cir. 1983); Agent, BLACK’S LAW DICTIONARY (5th ed. 1979); RESTATEMENT (SECOND) OF 

AGENCY § 10 (AM. L. INST. 1958)). Messrs. Tanner, Allred, Wilson, Gordon, and Cooper were, 

at the time of citation, the general manager, shift foreman, superintendent, production manager, 

and safety manager, respectively. Stips. ¶ 9–13. 

Mr. Allred was acknowledged to be the “responsible person” on the shift. Id. ¶ 29, 35; Tr. 

258–59. Each of the others was also entrusted with some authority to control aspects of the 

mine’s operations. 

45 Though not contested, I note that section 50.10 is a mandatory health or safety 

standard. See Signal Peak Energy, LLC, 37 FMSHRC 470, 479 (Mar. 2015). A violation of the 

requirement may therefore be the basis for section 110(c) liability. 

46 A “person” includes “individual[s],” id. § 802(f), and Skyline is a mine, Stips. ¶ 2. 

45 FMSHRC Page 370
B. Each Cited Respondent Was in a Position to Remedy the Condition. 

 In the context of a reporting violation, this element of individual liability means that the 

agent was in a position to notify MSHA upon learning about the incident. Because reporting does 

not, and cannot, require a designated miner, see Signal Peak Energy, LLC, 37 FMSHRC at 476, I 

address collectively whether the agents were positioned to remedy the condition. 

Section 50.10 requires “an operator” to notify MSHA. As an agent of the operator, each 

respondent was authorized to act on behalf of the operator with respect to mining operations, and 

the actions of each affected the operator’s legal rights and obligations. 

Mr. Allred acknowledged that he was the “responsible person” on shift, that he was in a 

position to stop work and call MSHA, and that he had the ability to do so. Tr. 283, 285. Mr. 

Cooper testified that he had the ability to stop work in response to unsafe conditions. Id. at 329. 

Though Messrs. Gordon, Wilson, and Tanner made no such acknowledgements, common 

sense informs me that their positions in mine management enabled them to make the decision to 

notify MSHA upon learning of the incident. All respondents were therefore in a position to 

remedy the condition. 

C. Each Respondent Failed to Act on the Basis of Information That Gave Them 

Knowledge or Reason to Know of the Existence of the Violative Condition. 

 The “knowing” language of section 50.10 mirrors the Commission’s requirement for 

knowledge under section 110(c). Compare 30 C.F.R. § 50.10 (“[O]nce the operator knows or 

should know that an accident has occurred . . . .”) (emphasis added), with Richardson, 3 

FMSHRC at 16 (“If a person in a position to protect employee safety and health fails to act on 

the basis of information that gives him knowledge or reason to know of the existence of a 

violative condition, he has acted knowingly and in a manner contrary to the remedial nature of 

the statute.”) (emphasis added). 

 I have already found that the operator had reason to know that an accident had occurred 

with the reasonable potential to cause death. See Section V.A.2., supra. As discussed above, 

having knowledge that a rib burst occurred, covering a miner in coal, would give an experienced 

miner reason to know that an injury with the reasonable potential to cause death occurred, even if 

one did not know exactly what the injury was. Id.

The narrow issue is therefore whether and how this knowledge can be imputed to the 

individual Respondents. 

For purposes of Section 110(c), the duty to report only arises when the officer or agent 

has knowledge or reason to know of the existence of the violative condition. Because these are 

individual charges, and because each of the individuals learned about the incident at a different 

time and in a different manner, it is important to consider carefully each person’s liability. 

45 FMSHRC Page 371
Mr. Allred was the first of the individual respondents to be informed of the incident. He 

testified that he was informed at 5:08 p.m. by the production foreman, Charlie Wilson, that Mr. 

Adams had been “covered up with coal along the 8-Bay.” Tr. 262–63; see also Stips. ¶ 20; JT-6. 

 Mr. Allred’s first reference to Mr. Cooper was that he called him and gave an assessment 

of his injuries. Tr. 273–74. But that was about forty minutes after the report, when Mr. Allred 

was finally at the site and had seen Mr. Adams. Id. at 286. 

Mr. Cooper testified, however, that he was notified by Conspec, and Mr. Allred testified 

that he had notified Conspec immediately upon receiving the call about the incident. Tr. 264, 

301–02. I therefore find Mr. Cooper knew of the accident within minutes of Mr. Allred. 

 This is further supported by Mr. Gordon, who testified that Mr. Cooper called him 

between 5:20 and 5:25. Tr. 336. Mr. Gordon was therefore informed within 12–17 minutes about 

a miner being buried, though Mr. Cooper did not describe any of the injuries. Id. at 335–36. Mr. 

Cooper did testify that he later spoke with Mr. Gordon and told him the injuries were not life 

threatening. Id. at 326. 

 Mr. Wilson testified that Mr. Cooper called him at 5:30. Tr. 373. He later received a call 

from Mr. Allred informing him of what occurred. Mr. Wilson said he was told that they had to 

remove Mr. Adams from the coal, that the ambulance was on the way, and that there were 

possible injuries to his knee, neck and head. He also said he asked Mr. Allred if he thought it was 

immediately reportable, “if it was life-threatening,” and Mr. Allred told him, “[N]o, I don’t think 

it would be.” Id. at 376. 

 Mr. Tanner testified that Mr. Cooper called him between 5:30 and 5:40. Tr. 435. He 

received a second call from Mr. Cooper that Mr. Adams was being brought up with a cut on his 

forehead and possible back injury resulting from a rib fall or roll. Id. at 437. 

Mr. Cooper could not have known this until his conversation with Mr. Allred at 5:48, at 

the earliest. Further, he received a call from Mr. Wilson, who had arrived at the surface and seen 

Mr. Adams loaded into the county ambulance. Tr. 439. Mr. Wilson informed him that Mr. 

Adams was in good shape, that material had rolled out underneath the rib, and that the incident 

was not immediately reportable. Id. at 439–40. 

Each respondent was therefore notified about a miner buried in coal within 32 minutes of 

the incident. Any one of them could have notified MSHA. See Section VI.B., supra. 

 Respondent cites Freeman extensively, arguing both that the agents did not have the 

required knowledge of the violative condition, and that they did not have an unwarrantable 

failure-level of culpability. Resp’t Br. 29–30. 

In Freeman, the D.C. Circuit reversed the judge, finding no individual liability. 108 F.3d 

at 364. It held that the record did not support that the agents had actual or constructive 

knowledge of the hazardous level of deterioration of the violative beam. Id. Importantly, the 

decision held that while the agents knew of the instability risk from corrosion, they were 

45 FMSHRC Page 372
addressing the condition responsibly through inspections and repairs, and numerous regulatory 

inspections never reported any concern with the condition. Id.47

 I have already found that the agents had knowledge of the condition—a miner covered by 

coal from a rib burst being reasonably likely to cause death. Freeman does not preclude liability 

arising from this finding. The Commission’s holding that the agents had neither actual nor 

constructive knowledge concerned knowledge of the “hazardous level of deterioration” of the 

specific beam that collapsed. Id.48

 Respondents here had constructive knowledge of the specified hazard—the risk of similar 

injuries with the reasonable potential to cause death resulting from further rib bursts in an 

uninspected, and potentially inadequately supported, work area. Even if I were to find that 

Freeman controlled the outcome here (it does not), whether the agents were addressing the 

condition responsibly is the only relevant issue. But many of Respondents’ arguments don’t 

directly address the issue as it relates to the failure to report the accident. 

 Much Respondent-elicited testimony was dedicated to the efforts the operator took to 

address the roof control risk, noting that mesh and props had been installed as a precaution. The 

alleged 110(c) liability here, however, is based on the failure to report an incident in which those 

measures had proved inadequate, so efforts to mitigate the roof and rib conditions do not avert 

Respondents’ culpability for not reporting the failure. Respondents therefore are not absolved 

under Freeman’s reasoning. 

 Respondents also cite Target Industries, Inc., 23 FMSHRC 945 (Sept. 2001), to argue 

against a finding that they had knowledge. Resp’t Br. 29. While the affirming decision laid out 

the standard description of requirements for knowledge, the facts of the case, when compared to 

those here, are damaging to Respondents. 

The Commission affirmed the individual liability finding against one respondent who 

was notified, while at home, of dangerous conditions and failed to notify anyone at the mine or 

47 Though not directly pertinent here, other jurists, including the ALJ, the dissenting 

judge in Freeman, and the Court of Appeals for the Sixth Circuit, have been critical of the failure 

of MSHA to cite violations as excusing a breach of an operator’s duty, and that of its agents and 

officers, to protect their miners under the Act. “MSHA inspectors do not undertake to perform a 

duty owed by the mine operator to its employees.” 18 FMSHRC 483, 456 (Mar. 1996) (ALJ) 

(citing Raymer v. United States, 660 F.2d 1136, 1143 (6th Cir. 1981), cert. denied, 456 U.S. 944 

(1982)); see also 108 F.3d at 366 (Wald., J., dissenting) (asserting that other inspections are 

irrelevant because those inspectors do not have the information held by agents and “lack[] the 

expertise and intimate knowledge” of the facility and condition). The agency in the present case 

probably should have more thoroughly investigated the accident when it learned about it. The 

failure to do so has no impact on the duty owed by the Respondents. 

48 The Commission also reversed the ALJ for failing to find the agents knowingly 

violated the standard, rather finding high negligence. Id. The finding of violation here, however, 

is not based solely on a negligence finding. 

45 FMSHRC Page 373
take any action. 23 FMSHRC at 950, 963.49 Similarly, all the agents here, whether at the mine or 

at home, were notified of a dangerous condition and failed to act. 

Respondents might attempt to distinguish themselves from the respondent in Target 

Industries because he was part of the formal notification procedure—meaning that he was 

specifically responsible. Id. at 948. But each of the Respondents here had important duties and 

responsibilities in response to the rib burst and Mr. Adams’ injuries. To their credit, each 

individual respondent acted promptly and conscientiously to attend to Mr. Adams. But that is 

irrelevant to whether they were in a position to report an accident, knew the facts giving rise to 

the duty to do so, and failed in that responsibility. 

Mr. Allred is the direct comparison to the individual charge in Target Industries, as the 

responsible person. Each of the others, however, was subsequently in a position to protect miner 

safety and was notified. Target Industries provides no basis for excusing a failure to do so, 

because Respondents knew it was important to inform mine management of the status of events, 

yet none believed at any time that it was necessary to inform MSHA. 

 The Commission also found aggravated conduct in Target Industries because of blatant 

disregard for miner safety, rejecting the asserted justification that a false alarm must have 

occurred. Id. at 965. The Commission emphasized that it has rejected reliance on “‘best-case 

scenario’ assumptions as a basis for failing to take action despite evidence of a potentially 

dangerous condition.” Id.

 Mr. Allred, in contrast, assumed the worst here—an appropriate response when arranging 

a potential rescue and evacuation. That concern, though, did not extend fully to the implications 

raised by the incident, and the need to ensure miners would be protected, to the maximum extent 

possible, from a subsequent ground movement. 

The notification requirement exists, in part, because of the tremendous operational 

pressures imposed on mine management. Miners and bills must be paid regardless of whether the 

mine produces coal, but revenue stops when production ceases. Involving the agency in the 

inspection and investigation of mines is intended to counter the tendency toward wishful 

thinking and best-case assumptions. 

I have already found that the failure to report was the result of the operator’s high 

negligence, see Section V.C., supra, and unwarrantable failure, and therefore “aggravated.” See

Section V.D., supra. The remaining issue is therefore whether the finding of aggravated conduct 

against the operator can be imputed to Respondents. I hold the reasonableness of imputing 

aggravated conduct to individuals depends on the attenuation from the action and reasonable 

expectation of response from each of them. 

49 The Commission found that respondent knew the production shift was currently in the 

mine, and that another was due in soon; that he chose not to ensure miners were removed or even 

knew of the fan stoppage; and that he did so despite instruction to go to the mine to check out the 

alarm in the event he could not contact someone over the phone. Id. at 964. 

45 FMSHRC Page 374
D. Messrs. Allred’s and Cooper’s Failure to Act was Aggravated Because of Time, 

Proximity to the Incident, and Expertise. 

1. Shane Allred 

Mr. Allred was the shift foreman and the mine had designated him as the “responsible 

person” for reporting accidents to MSHA. He was therefore in a position to protect employee 

safety and health, and he was informed of a serious incident for which he called Conspec to 

contact a known EMT-trained miner, Dayna Anderson, and the county ambulance. Tr. 264, 265. 

Based on his experience and information available, I find Mr. Allred had reason to know that 

MSHA notification was required—both to ensure all assets were properly mobilized to help an 

injured miner, and to inspect the incident area to ensure the safety of others. 

 The dispositive issues are therefore whether Mr. Allred’s omission was “aggravated,” and 

as a subsequent defense, whether he had a reasonable, good faith belief that he was not required 

to report it. Because of the finding of failure to report, I find Mr. Allred failed to act to correct 

the condition. His inaction was also a result of aggravated conduct more than ordinary 

negligence. 

The following unwarrantable failure findings are imputed to Mr. Allred, as he was at the 

mine and was the first person notified. First, as found above, he had knowledge of the violation. 

Next, I consider the incident to be sufficiently obvious to require reporting. His violation posed a 

high degree of danger because MSHA was unable to assist in ensuring an optimal response to the 

accident, and miners continued to be present and work in the area without an MSHA inspection 

to validate the safety of the longwall for other miners. This danger is further demonstrated by the 

fact that there was a similar rib roll days earlier that, luckily, did not injure any miners. Finally, 

his violation was extensive in that it affected the entire working longwall. 

 I do not even consider this from the point of Mr. Allred actually observing Mr. Adams 

and his injuries. Messrs. Allred, Bonnanci, and Anderson all testified that Mr. Allred’s travel 

time and the time required to uncover Mr. Adams took nearly or more than thirty minutes after 

notification. Tr. 92, 235, 266. There is testimony that Mr. Allred immediately called Conspec, 

and other testimony demonstrates that he could have inquired further into Mr. Adams’ on the call 

with Charlie Wilson while he drove to the site. See supra note 36. 

 As in Matney, Mr. Allred should have known of the high degree of danger from the 

readily apparent nature of the incident. Further, Mr. Allred had the primary responsibility to 

gather information about incidents, assess the hazardous conditions, and take necessary steps to 

address it to protect miners. He was clearly in a position to protect miners by notifying MSHA of 

the accident, but failed to do so. The evidence indicates that Mr. Allred conducted minimal factfinding regarding the accident and attendant injuries during the reporting period. Had Mr. Allred 

taken more careful and thorough action, he would have noted the obvious and highly dangerous 

nature of the accident and the potential for continuing danger. The record thus compels the 

conclusion that a foreman, exercising reasonable care, would have apprehended the full scope of 

the danger presented by the hazardous rib conditions and notified MSHA. 

45 FMSHRC Page 375
 A good faith belief that an incident is not reportable based on remaining uninformed for 

the statutory fifteen-minute duration is unreasonable. See Mainline Rock & Ballast, Inc., 693 

F.3d at 1189 (affirming a reporting violation because the superintendent was “remarkably noninquisitive” about the injuries and holding that he did not “have the discretion to remain 

uninformed”). Mr. Allred’s belief that he was not in violation of the reporting standard was not 

reasonable. He could have reported the accident based on the nature of the ground movement and 

the same concerns that prompted him to direct Conspec to call an ambulance and to send Mr. 

Anderson to the scene of the accident. 

For at least thirty minutes, apparently with a working means of communication, Mr. 

Allred remained “remarkably uninquisitive” about Mr. Adams’ possible injuries. He had fifteen 

minutes from notification at 5:08 to comply by notifying MSHA. He had sufficient 

information—based only on a miner covered in coal, and no further updates—to require a 

prudent miner of his experience to notify MSHA. 

 Even if he believed in good faith that he did not have enough information, there is no 

evidence in the record showing that he inquired in detail about Mr. Adams’ condition. He could 

have done so while on the way to the scene, and certainly could have at the scene. While a late 

accident report might have been a violation, it would have enabled the agency to respond 

promptly, and the omission would not have been aggravated. 

 

 When asked why he requested an ambulance, Mr. Allred said, “I assumed the worst.” Tr. 

288. This was the appropriate response to a serious unplanned ground movement that covered a 

miner in coal. At the moment Mr. Allred learned of the incident, he knew enough to act 

quickly—immediately, at once, and without delay—to seek medical attention for Mr. Adams, 

based on the circumstances reported to him, but he did not call MSHA. 

 I therefore find Shane Allred individually liable under section 110(c). While I find that 

his good faith belief was unreasonable, it appears that Mr. Allred’s understanding is consistent 

with that of upper mine management and that his failure to notify the agency was the result of 

improper training and a misapprehension of the law by his superiors. 

I further note that at the hearing he was a forthright witness who did not try to avoid 

accountability for his actions, and that his response to ensure care and assistance for Mr. Adams 

was commendable. I therefore assess a penalty of $1,000.00. 

2. Michael Cooper 

 Mr. Cooper was the safety manager and was immediately informed by Conspec about a 

miner being buried in coal. He was therefore in a position to protect employee safety and health, 

and he personally informed three of the other respondents about the incident. Based on his 

experience, information available, and the specialized nature of his position, I find Mr. Cooper 

had reason to know that MSHA notification was required. 

The dispositive issues are therefore whether Mr. Cooper’s omission was “aggravated,” 

and as a subsequent defense, whether he had a reasonable, good faith belief that he was not 

45 FMSHRC Page 376
required to report it. Because of the finding of failure to report, I find Mr. Cooper failed to act to 

correct the condition. His inaction was also a result of aggravated conduct more than ordinary 

negligence. 

The same unwarrantable failure findings attributed to Mr. Allred are similarly attributable 

to Mr. Cooper. At best, it is possible to assert that Mr. Cooper had little familiarity with the 

August 20 rib roll, because he was on vacation at the time. Tr. 320. It is likely, however, that as 

the safety manager, he would have reviewed the occurrence upon return; especially since 

mitigating actions were apparently taken—e.g., mesh and props were installed in the wake of the 

incident. 

 Mr. Cooper is particularly liable regarding the degree of danger because as a safety 

professional, he should have better understood the potential risks stemming from MSHA’s 

inability to inspect safety for other miners before they continued operations in the area. Mr. 

Cooper, as the safety manager, should understand that requirement more than any other 

respondent. Finally, his violation was extensive because it affected the entire working longwall. 

 Mr. Cooper’s belief that he complied with the standard in not reporting was not 

reasonable. He similarly remained “remarkably uninquisitive” about the possible injuries after he 

was informed of the burial by Conspec and notified each of the Respondent managers. At the 

same time, it is apparent that Mr. Cooper also was not properly trained by the mine to fully 

appreciate the duty to report immediately if there is any doubt about the seriousness of the 

injuries. As a safety professional, he should have known better than Mr. Allred, but I do find 

some mitigation for his failure. 

 I therefore find Michael Cooper individually liable under section 110(c) and assesses a 

penalty of $1,500.00. 

3. The remaining respondents are not individually liable because of the 

notification time, lack of evidence of personal involvement in the violation, 

and attenuation. 

 It was not determinatively established at hearing that Messrs. Gordon, Wilson, or Tanner 

were notified within the reporting window. Technically and narrowly, then, the violation had 

already occurred before they were in a position to have done anything about it. 

Nor was there any evidence that any of the three participated in, directed, or authorized 

the failure of Mr. Allred or Mr. Cooper to notify MSHA. While managers should be on notice 

that such an event has the reasonable potential to cause death and is immediately reportable, a 

finding that higher-level managers are liable for failure to report after the initial window would 

incentivize a policy of limiting access to possible reports to prevent liability. 

Operators need to educate and empower first-line supervisors, or “responsible person(s),” 

to notify MSHA, and those persons are rightly responsible, especially when they are the first 

ones notified and closest to the accident site and thus most able to assess the situation. In this 

case, the decision-making authority was appropriately delegated to Mr. Allred, but it appears that 

45 FMSHRC Page 377
neither he nor Mr. Cooper was properly instructed on the requirements of the rule, as MSHA has 

explained them in its preamble and as the Commission has further elaborated in its decisions. 

This is a failure of the mine management generally, but there is insufficient evidence to 

specifically hold that either Mr. Gordon, Mr. Wilson, or Mr. Tanner did anything to repress or 

discourage reporting to MSHA. 

I am concerned that the same incuriosity exhibited by Messrs. Allred and Cooper could 

be attributed to the other three individual Respondents. But they appeared to be laboring under 

the same misapprehension of the law. 

Further, Messrs. Gordon, Wilson, and Tanner were notified secondarily by Mr. Cooper, 

specifically a safety professional, and may have assumed he was getting direct information. They 

appropriately relied on his assessment of the severity, even if he, and they, misperceived the 

standard for reporting. 

It might have been possible for the Secretary to argue, and show, that the failure to ask 

more probing questions about Mr. Adams’ condition or how they occurred constituted a 

continuation of the violation that materially impeded MSHA’s response. But I decline to extend 

the reporting requirement in this context. It might be wise for MSHA to incentivize corrections 

by upper-level management by providing a safe harbor for managers and operators who correctly 

determine that a duty to report exists after the 15 minute reporting limit has expired, but this is a 

policy question beyond the scope of my duties. 

I therefore find that there is insufficient evidence to sustain individual Section 110(c) 

liability against Respondents Gordon, Tanner, and Wilson. However, I have taken into account 

the mine’s failure to properly educate its personnel in the need to notify MSHA when in doubt in 

imposing a high penalty against the operator for this violation. 

VII. CONCLUSION 

 It is ORDERED that Order No. 8541892 be AFFIRMED as assessed. 

 It is also ORDERED that for Order No. 8541891, the negligence be MODIFIED from 

“High” to “Moderate,” and the “Unwarrantable Failure” designation be REMOVED. 

 It is also ORDERED that individual liability assessments against Shane Allred and

Michael Cooper be AFFIRMED, and those against Jed Gordon, Jake Wilson, and Dewey 

Tanner be VACATED. 

45 FMSHRC Page 378
It is also ORDERED that Shane Allred and Michael Cooper pay the Secretary of Labor 

the assessed penalties of $1,000.00 and $1,500.00, respectively. 

Finally, it is ORDERED that the Respondent pay the Secretary of Labor the assessed 

penalty of $75,000.00 within 30 days of the date of this decision.50

 /s/ Michael G. Young 

 Michael G. Young 

Administrative Law Judge 

Distribution (First Class Mail and email): 

Jason S. Grover, Office of the Solicitor, 201 12th Street South, Suite 401, Arlington, VA 22202, 

grover.jason@dol.gov

Rebecca Mullins, Office of the Solicitor, 201 12th Street South, Suite 401, Arlington, VA 22202, 

mullins.rebecca.w@dol.gov

R. Henry Moore, Fisher & Phillips LLP, Six PPG Place, Suite 830, Pittsburgh, PA 15222, 

hmoore@fisherphillips.com

50 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

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

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers. 

45 FMSHRC Page 379
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 

FAX: 202-434-9949 

May 23, 2023 

AMENDED DECISION APPROVING SETTLEMENT 

Before: Judge Moran 

This case is before the Court upon a Petition for Assessment of a Civil Penalties filed 

under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). 

The motion is brought by a non-attorney representative, known as “conference and litigation 

representative (“CLR”). The CLR has filed a motion to approve settlement of the violations 

involved in this matter. The parties have moved to approve the proposed settlement as follows: 

Citation/Order 

No. 

MSHA’s 

Proposed 

Assessment

Settlement 

Amount Modification 

WEVA 2023-0166 

9568959 $1,069.00 $535.00 

Modified from “Reasonably Likely” 

to “Unlikely”, and consequentially 

removing the “Significant and 

Substantial” designation

TOTAL $1,069.00 $535.00 50% reduction in penalty from 

regular assessment figure 

Involved in this matter is a section 104(a) citation for a now-admitted violation of 30 

C.F.R. §75.1725(a). That standard, titled “Machinery and equipment; operation and 

maintenance,” provides at the cited subsection that “Mobile and stationary machinery and 

equipment shall be maintained in safe operating condition and machinery or equipment in 

unsafe condition shall be removed from service immediately.” 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

GREENBRIER MINERALS, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2023-0166 

A.C. No. 46-09514-569163 

Mine: Muddy Bridge 

45 FMSHRC Page 380
In issuing the citation, MSHA Inspector Emory Pack found that a Mac 12 emergency 

ride, company number 001, had a non-functioning parking brake. The inspector noted that the 

machine is used to transport miners from the end of the track to the No. 1 section. Petition for 

Civil Penalty at 17. As the inspector marked the violation as reasonably likely to result in an 

injury producing lost workdays or restricted duty, he properly designated it as significant and 

substantial. The negligence was listed as moderate. Id. 

That the inspector properly so evaluated the non-functioning brake was borne out by the 

fact that the parking brake was replaced. Id at 18. 

The Motion asserts the following in support of the modification and the 50% penalty 

reduction: 

Respondent disputes the level of likelihood of injury characterized by the citation. 

Respondent contends the service brakes1 on the personnel carrier were working 

properly when tested. Respondent further contends the terrain the personnel 

carrier travels is slightly rolling and not very steep. When the personnel 

carrier is parked and unattended, the transmission is left in reverse, and the 

wheels are turned into the rib. Respondent states this citation does not have a 

confluence of factors to support the S&S determination. The Secretary does not 

necessarily agree with Respondent’s position but does recognize a legitimate 

factual and legal dispute and believes that settlement of the civil money penalty is 

consistent with his enforcement responsibility under the Mine Act. Therefore, the 

Secretary agrees to modify the citation from “Reasonably Likely” to “Unlikely” 

and to delete the “Significant and Substantial” designation. The Secretary also 

agrees to accept a reduced penalty, which reflects the modification to the issuance. 

Motion at 3 (emphasis added). 

Analysis 

The support offered is a display of irrelevant considerations, because it is entirely 

composed of factors that are not to be considered, per the clear directions from the United 

States Courts of Appeals. Those Courts have rejected the ‘alternative safety measures’ 

raised by the Respondent when analyzing the significant and substantial designation. 

Accordingly, redundant safety measures are not to be considered in evaluating a hazard. 

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

observed: 

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

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

operators could pick and choose the standards with which they wished to 

comply.”...Such a policy would make such standards “mandatory” in name only. 

1 The citation was for the non-functioning parking brake, not the service brake. 

45 FMSHRC Page 381
It is therefore unsurprising that other appellate courts have concluded that 

‘[b]ecause redundant safety measures have nothing to do with the violation, they 

are irrelevant to the [S & S] inquiry.’ Cumberland Coal, 717 F.3d at 1029; see 

also Buck Creek, 52 F.3d at 136. 

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

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

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

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

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

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

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

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

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

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

Id. at 118-119. 

 Such irrelevancies do not acquire legitimacy in the context of settlements because 

to do so, would mean that a lesser standard is applied. It is disconcerting that the 

Secretary’s non-attorney representatives continue to advance these rejected justifications2

for penalty reductions, as it displays a lack of respect for the holdings of the Courts of 

Appeals and Congress’ explicit direction that penalties must be sufficient to encourage 

operators to comply with safety and health standards, as opposed to noncompliance with 

the attendant benefit of paying greatly reduced penalties. 

 Despite the above observations, the Court is not permitted to make reasonable inquiry 

about settlement motions. With that restriction, the Court has considered the Secretary’s Motion 

and approves it solely on the basis of the Commission’s decisions in The American Coal Co., 40 

FMSHRC 983 (Aug. 2018) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) for the 

standard to be applied by Commission administrative law judges when reviewing such settlement 

motions under the Commission’s interpretation of section 110(k) of the Mine Act. The Court 

must and does fully adhere to all Commission precedent. Per the Commission’s decisions on the 

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

motion is sufficient for approval. 

2 As the CLRs are not attorneys, the Court realizes they simply follow the orders from the 

Solicitor as to the claimed justifications, even if they are without merit. 

45 FMSHRC Page 382
Accordingly, the motion to approve settlement is GRANTED, the citation contained in 

this docket is MODIFIED as set forth above, and it is ORDERED that Greenbrier Minerals, 

LLC pay the Secretary of Labor the sum of $535.00 within 30 days of this order.3

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

Ray A. Cartwright, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

100 YMCA Drive, Madisonville, KY 42431 cartwright.ray@dol.gov 

Lorna Waddell, Legal Counsel, DINSMORE & SHOHL LLP, 215 Don Knotts Blvd., Suite 310, 

Morgantown, WV 26501 lorna.waddell@dinsmore.com

3 Penalties may be paid electronically at Pay.Gov, a service of the U.S. Department of the 

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

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. 

It is vital to include Docket and A.C. Numbers when remitting payments. 

45 FMSHRC Page 383
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges 

721 19th Street, Suite 443 

Denver, CO 80202-2536 

303-844-3577 FAX 303-844-5268 

May 24, 2023 

DECISION 

Appearances: Felix R. Marquez, Esq.,1

 Office of the Solicitor, U.S. Department of 

Labor, Dallas, Texas for Petitioner; 

Andy Carson, Esq., Marble Falls, Texas for Respondent. 

Before: Judge Manning 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Cactus 

Canyon Quarries Inc. (“Cactus Canyon”) pursuant to sections 105 and 110 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties 

presented testimony and documentary evidence at a hearing held via the Commission’s secure 

video conferencing system and filed post-hearing briefs. Three section 104(a) citations with a 

total proposed penalty of $375.00 were adjudicated at the hearing. Although I have not included 

a detailed summary of all evidence or each argument raised, I have fully considered all the 

evidence and arguments. For reasons set forth below, I MODIFY Citation No. 9643094 and 

AFFIRM Citation Nos. 9643093 and 964395. 

Cactus Canyon Quarries operates the Fairland Plant (the “facility”), a surface facility in 

Burnet County, Texas. The facility prepares rock for use in terrazzo flooring. Andy Carson2

 is the 

president of Cactus Canyon and is also an attorney. Carson represented Cactus Canyon at the 

1

 Felix Marquez entered his appearance as counsel for the Secretary on December 13, 

2022. Prior to that date, the case was handled by a different attorney in the Dallas Solicitor’s 

office. 

2

 Carson is a licensed attorney, geologist by training and practice, and the President and 

head of operations for Cactus Canyon. Ex. F. Carson assisted with initial construction of the 

Fairland Plant. Tr. 139. Carson and another individual handle all electrical installation repairs at 

the Fairland Plant. Tr. 139. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

CACTUS CANYON QUARRIES, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. CENT 2022-0010-M 

A.C. No. 41-00009-542457 

Mine: Fairland Plant & Qys 

45 FMSHRC Page 384
hearing and testified as its only witness. MSHA Inspector Ray Hurtado3

 was the Secretary’s sole 

witness at the hearing. 

I. BACKGROUND AND PRELIMINARY MATTERS 

This case has a complicated history. On October 4, 2021, Cactus Canyon mailed its 

Notice of Contest for the three subject citations to MSHA. Subsequently, on November 26, 

2021, i.e., more than 45 days after receipt of the Notice of Contest4

, the Secretary filed a Motion 

for Extension of Time to File Initial Pleading citing the need for “additional time to allow the 

parties to thoroughly explore settlement in this matter.” The motion asked for a 60-day 

extension of time and did not provide any justification for the delay in filing the penalty petition 

other than saying that the time could be used to settle the case. November 26, 2021 was the 

Friday after Thanksgiving and the motion noted that the Secretary’s counsel emailed the 

operator on that date to see if it objected to the motion but did not receive a response. On 

December 1, 2021, which was three workdays after the Secretary filed the motion for extension 

of time, the Commission’s Chief Administrative Law Judge (the “Chief Judge”) found that the 

Secretary had shown good cause and issued an order (the “Chief Judge’s Order”) granting the 

Secretary’s motion and affording the Secretary until January 18, 2022, to file the initial 

pleading.5

 

After first asking the Chief Judge to reconsider the Chief Judge’s Order, which was not 

granted, Cactus Canyon filed a petition for discretionary review (“PDR”) with the Commission 

on December 23, 2021, challenging the validity of the Chief Judge’s Order and asking that the 

 

3

 Hurtado has been an MSHA inspector for 10 years. Tr. 7. As part of Hurtado’s training 

to become an inspector he attended the National Mine Academy and was trained on electrical 

hazards. Tr. 9, 69-70. Hurtado conducts 60 to 80 inspections per year and estimates that 80 to 90 

percent of the job sites he inspected had electrical hazards that he cited. Tr. 10-11. Prior to 

working for MSHA Hurtado worked for 10 years in the highway construction industry. Tr. 7-8, 

68. During his time in the highway construction industry Hurtado worked as a job foreman at 

sites where electrical tools were used and inspected daily. Tr. 69. Although Hurtado is not a 

certified electrician, at hearing he demonstrated a reliable working knowledge of residential 

electrical wiring. Tr. 71-72. 

4

 Commission Procedural Rule 28(a) requires the Secretary to file his petition for 

assessment of civil penalty (“penalty petition”) within 45 days of receipt of an operator’s notice 

of contest. 29 C.F.R. § 2700.28(a). 

5

 Commission Rules 8(a) and 10(d) allow a party eight days, excluding weekends and 

holidays, to file an opposition to a motion. 29 C.F.R. § 2700.8(a) and 10(d). 

45 FMSHRC Page 385
case be dismissed. On January 4, 2022, the Commission issued a notice stating that “after 

consideration by the Commissioners, no two Commissioners voted to grant the petition [for 

discretionary review] or to otherwise order review.”6

 

On January 10, 2022, Cactus Canyon filed a petition for review of the Commission’s 

order denying the PDR with the U.S. Court of Appeals for the Fifth Circuit. (Case No. 22-

60030). 

On January 18, 2022, the Secretary electronically filed the petition for assessment of 

penalty with the Commission and served the same upon Cactus Canyon via email. After Cactus 

Canyon filed its answer, the case was assigned to me on February 14, 2022. 

On April 27, 2022, I granted the Secretary’s motion to stay the case, over Cactus 

Canyon’s objection, pending the outcome of the petition for review before the Fifth Circuit. I 

subsequently lifted the stay on July 20, 2022, two days after the Fifth Circuit dismissed the 

petition for review for lack of subject matter jurisdiction.7

 

A hearing in this case was held on February 28, 2023. Several motions were filed by the 

parties prior to the hearing, including a motion for summary decision filed by Cactus Canyon on 

May 9, 2022. Among other things, the motion raised the same arguments relating to the chain of 

events surrounding the Chief Judge’s Order that were raised in both the motion to reconsider 

and PDR, asked that the citations be vacated, and the case dismissed. I denied the motion by 

order dated August 18, 2022. Cactus Canyon Quarries Inc., 44 FMSHRC 609 (Aug 2022) 

(ALJ). In denying the motion for summary decision, I relied to a large extent on the fact that the 

Chief Judge determined that good cause had been shown for the Secretary’s motion for an 

extension of time to file the penalty petition, that his determination was the law of the case, and 

that I was not in a position to overturn his determination.

II. JURISDICTION 

One of the principal issues in this case is whether MSHA had jurisdiction to inspect 

Cactus Canyon’s Fairland Plant on July 27, 2021, the date the subject citations were issued. The 

Secretary argues that the Fairland Plant is subject to Mine Act jurisdiction because mineral 

6

 In its motion for reconsideration and the PDR, Cactus Canyon argued that the 

Commission’s decision in Salt Lake County Road Dep’t., 3 FMSHRC 1714 (July 1981), as well 

as other Commission case law, provides that the Secretary must show good cause for its failure 

to timely file a penalty petition and that the Secretary failed to do so in this case. 

7

 Through every stage of this litigation Cactus Canyon has maintained that the Chief 

Judge’s order was invalidly issued. Cactus Canyon has argued the Secretary failed to timely file 

and serve the penalty petition or show good cause for why the late filing should be excused and 

has consequently asked that the case be dismissed. 

45 FMSHRC Page 386
milling takes place at the facility.8

 Cactus Canyon contends, among other things, that the nature 

of its operation has changed in recent years with the result that the facility no longer fits within 

the definition of “coal or other mine” in Section 3(h)(1) of the Mine Act. 30 U.S.C. § 

802(h)(1).9 For reasons set forth below, I find MSHA had jurisdiction to inspect Cactus 

Canyon’s Fairland Plant and issue the subject citations. 

a. Summary of Testimony on the Issue of Jurisdiction 

Both Hurtado and Carson offered testimony relating to the issue of MSHA jurisdiction 

to inspect the Fairland Plant. Hurtado initially testified that rock or mineral was extracted at the 

Fairland Plant site, but later conceded no extraction occurred there and, instead, Cactus Canyon 

brought in all material from other locations, including Mexico, for processing at the Fairland 

Plant. Tr. 65-67, 75. 

Hurtado testified that milling, in the form of crushing, screening, and sizing of material, 

did occur at the facility. Tr. 76-77. Specifically, Hurtado testified that he observed mobile 

equipment that loaded material into “two independent plants, both equipped with screens for 

sizing rock and crushers to make a certain size of product[,]” as well as dump trucks that moved 

material as needed. Tr. 77, 81. 

Carson testified regarding the history of the Fairland Plant and its operation. While the 

facility previously produced material for architectural precast concrete projects, it currently 

produces material for terrazzo stone floors from dimension stone. Tr. 141, 144, 148. 

According to Carson, no extraction occurs at the Fairland Plant and all dimension stone 

processed into terrazzo stone at the facility is bought from other sources.10 Tr. 149. However, 

8

 The Secretary spent much of his brief arguing that the Fairland Plant is not a “borrow 

pit” and, as a result, does not qualify for the “borrow pit exception” to Mine Act jurisdiction in 

the MSHA-OSHA Interagency Agreement. Sec’y Br. 5-10. However, I need not address that 

issue because Cactus Canyon did not argue at hearing, in its brief, or in its reply brief that the 

Fairland Plant is a borrow pit. 

9

 In previous cases, Cactus Canyon stipulated to MSHA jurisdiction. See Cactus Canyon 

Quarries, 44 FMSHRC 289 (April 2022) (ALJ). Cactus Canyon now maintains that its 

operations have changed since that time so that the facility should be inspected by OSHA and not 

MSHA. 

10 Carson testified Cactus Canyon brings in rock from Mexico, a Vulcan Materials Mine, 

and a from “a Texas landowners’ mine.” Tr. 149-150. Although some of the rock that arrives at 

the facility is a minimum of five inches in diameter, other rock is a minimum of ten inches in 

diameter. Tr. 147. 

45 FMSHRC Page 387
Carson also acknowledged that 10 to 15 percent of Cactus Canyon’s business comes from 

“something that we’ve mined ourselves.”11 Tr. 152. 

Carson explained that dimension stone is delivered to the Fairland Plant via truck or rail. 

Following delivery, the stone may be laid out on concrete, washed/sprayed with water, and 

inspected to make sure it meets certain specifications, including proper color and size, before 

being sorted and stored in piles by color on the property. Tr. 148, 153. At current sales rates, the 

piles of dimension stone can remain on-site anywhere from 20-45 years. Tr. 147-148. According 

to Carson, on average, 20 years pass between when the dimension stone is placed into a pile and 

then processed into terrazzo stone at the Fairland Plant. Tr. 150. Carson intends to make all the 

dimension stone on site into terrazzo stone or find another market for the material in its current 

condition. Tr. 170. 

 According to Carson, to get the stone to the right size and shape for Cactus Canyon’s 

terrazzo stone customers, the Fairland Plant utilizes a slow, deliberate, “closed circuit system” 

where the dimension stone is fed into a hopper, crushed, and then oversized material is screened 

out so it can be recirculated and “crushed down,” or “size reduced,” again. Tr. 146, 171, 175-176. 

On average, materials pass through the system five to six times before the correct size and shape 

is reached, with only 10-15 percent of the material lost to fines.12 Tr. 145, 147, 152, 176. The 

same process is used for all rocks on the property. Tr. 177. 

Carson testified that almost all material produced is bagged and sold. Tr. 176. He stated 

that “[t]oday we sell across North America and occasionally the Far East.” Tr. 147. 

b. Findings of Fact and Conclusion of Law on the Issue of Jurisdiction 

Section 4 of the Mine Act states that “[e]ach coal or other mine, the products of which 

enter commerce, or the operations or products of which affect commerce, and each operator of 

such mine, and every miner in such mine shall be subject to the provisions of this Act.” 30 

U.S.C. § 803. Accordingly, for MSHA to have had jurisdiction to inspect the Fairland Plant, the 

evidence must establish, first, that the Fairland Plant was a “coal or other mine” under the Act 

11 Although Carson did not so state, Cactus Cayon may have mined this rock at the 

“Texas landowner’s mine.” 

12 Carson testified that the dimension stone is reduced to a size less than 3/8 of an inch, 

but greater than 1/16 of an inch, and “almost purely cubicle in shape.” Tr. 145,151-152. In order 

to get the correct shape, the plant “can’t run very fast at all[,]” and the material goes through “a 

lot smaller cone crushers” that are run “a lot wider” than the plant previously used. Tr. 145-146. 

Carson acknowledged some material brought to the Fairland Plant must be broken with a 

hammer attached to an excavator before it can be processed. Tr. 175. Carson testified that “[a]ll 

we’re doing is size reducing[,]” and asserted that “none of the stone delivery is crude or ore. It’s 

all finished. We don’t separate minerals from the gangue or crude or ore. There is never any 

grind, concentration, washing, drying, roasting, pelletizing, centering, evaporating, calcining, 

kiln treatment, sawing, or cutting the stone, heat expansion, retorting, leaching, briquetting at this 

location.” Tr. 150-151. 

45 FMSHRC Page 388
and, second, that the products of the Fairland Plant enter commerce or the operation or products 

of the Fairland Plant affect commerce. 

Is the Fairland Plant a “coal or other mine” under the Mine Act? 

In the case at hand, the Secretary seeks to establish Mine Act jurisdiction over the 

Fairland Plant via subsection (C) of section 3(h)(1) of the Act, which, in pertinent part, defines a 

“coal or other mine” to include “structures, facilities, equipment, machines, [and] tools . . . used 

in ... the milling of ... minerals.” 30 U.S.C. § 802(h)(1).13 

The Mine Act does not define the term “milling”. When a statutory term is not expressly 

defined it should be accorded its commonly understood definition. Drillex Inc., 16 FMSHRC 

2391, 2395 (Dec. 1994). In Watkins Eng’rs & Constructors, 24 FMSHRC 669, 674-675 (July 

2002) the Commission, when analyzing the commonly understood definition of “milling” and 

related terms, stated the following: 

Within the industry, milling is defined as: “The grinding or crushing 

of ore. The term may include the operation of removing valueless or 

harmful constituents ... ,” while mill is defined as a “mineral 

treatment plant in which crushing, wet grinding, and further 

treatment of ore is conducted.” . . . [Dictionary of Mining, Mineral, 

and Related Terms 344 (2d ed. 1997) (“DMMRT”)] (emphasis 

added); see also Alcoa Alumina & Chems., L.L.C., 23 FMSHRC 

911, 914 (Sept. 2001) (using DMMRT to determine usage in mining 

13 The Mine Act defines “coal or other mine” as follows: 

(A) an area of land from which minerals are extracted in 

nonliquid form or, if in liquid form, are extracted with workers 

underground, (B) private ways and roads appurtenant to such area, 

and (C) lands, excavations, underground passageways, shafts, 

slopes, tunnels and workings, structures, facilities, equipment, 

machines, tools, or other property including impoundments, 

retention dams, and tailings ponds, on the surface or underground, 

used in, or to be used in, or resulting from, the work of extracting 

such minerals from their natural deposits in nonliquid form, or if in 

liquid form, with workers underground, or used in, or to be used in, 

the milling of such minerals, or the work of preparing coal or other 

minerals, and includes custom coal preparation facilities. In making 

a determination of what constitutes mineral milling for purposes of 

this Act, the Secretary shall give due consideration to the 

convenience of administration resulting from the delegation to one 

Assistant Secretary of all authority with respect to the health and 

safety of miners employed at one physical establishment; 

30 U.S.C. § 802(h)(1). 

45 FMSHRC Page 389
industry). The ordinary meaning of “to mill” is “to crush or grind 

(ore) in a mill,” and the term “a mill” is defined as “a machine for 

crushing or comminuting some substance.” Webster's Third New 

Int'l Dictionary (Unabridged) 1434 (1993); see also Nolichuckey 

Sand Co., 22 FMSHRC 1057, 1060 (Sept. 2000) (“Commission ... 

look[s] to the ordinary meaning of terms not defined by statute”). 

Although the Mine Act does not expressly define the term “milling,” it does grant the 

“Secretary discretion, within reason, to determine what constitutes mineral milling. . . [.]” 

Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1552 (D.C. Cir. 1984).14 In 1979 the Secretary 

exercised that discretion when MSHA and OSHA entered into an interagency agreement to 

delineate certain areas of authority between the two agencies and set forth guidelines for 

resolving jurisdictional questions involving milling. MSHA-OSHA Interagency Agreement, 44 

Fed. Reg. 22827 (April 17, 1979) amended by 48 Fed. Reg. 7,521 (Feb. 22, 1983) (“Interagency 

Agreement” or “the Agreement”). Among other things, the Interagency Agreement clarifies the 

agencies’ intent that the Mine Act, as opposed to the OSH Act, be applied to milling operations, 

and reiterates Congress’s intent that jurisdictional doubts be resolved in favor of inclusion of a 

facility within coverage of the Mine Act. 15 Id. 

Appendix A to the Agreement describes “milling” as a process “to effect a separation of 

the valuable minerals from the gangue constituents of the material mined” as well “the art of 

treating the crude crust of the earth to produce therefrom the primary consumer derivatives. The 

essential operation in all such processes is separation of one or more valuable desired 

constituents of the crude from the undesired contaminants with which it is associated.” 44 Fed. 

Reg. at 22829. 

In addition, Appendix A also contains a list of “general definitions of milling processes 

for which MSHA has authority to regulate[,]” which includes the terms “crushing” and “sizing.” 

“Crushing” is defined as “the process used to reduce the size of mined materials into smaller, 

relatively coarse particles[,]” and “may be done in one or more stages, usually preparatory for 

the sequential stage of grinding, when concentration of ore is involved.” 44 Fed. Reg. at 22829. 

“Sizing” is defined as “[t]he process of separating particles of mixed sizes into groups of 

14 Section 3(h)(1) of the Act states that “[i]n making a determination of what constitutes 

mineral milling for purposes of this Act, the Secretary shall give due consideration to the 

convenience of administration resulting from the delegation to one Assistant Secretary of all 

authority with respect to the health and safety of miners employed at one physical 

establishment[.]” 30 U.S.C. § 802(h)(1). 

15 In Donovan v. Carolina Stalite Co. the D.C. Circuit Court of Appeals recognized 

“every company whose business brings it into contact with minerals is not to be classified as a 

mine within the meaning of section 3(h). The jurisdictional line drawn by the statute rests upon 

the distinction, which is somewhat elusive, to say the least, between milling and preparation, on 

the one hand, and manufacturing, on the other. Classification as the former carries with it Mine 

Act coverage; classification as the latter results in Occupational Safety and Health Act 

regulation.” 734 F.2d 1547, 1551 (D.C. Cir. 1984). 

45 FMSHRC Page 390
particles of all the same size, or into groups in which particles range between maximum and 

minimum sizes.” 44 Fed. Reg. at 22829-22830. 

Although the Interagency Agreement is not dispositive, it can assist in determining 

whether the Secretary’s application of the term “milling” to a particular facility is reasonable. 

See Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1552 (D.C. Cir. 1984). 

I find that Cactus Canyon engaged in “milling” at the Fairland Plant by crushing the 

dimension stone to reduce the size of the material to a cubic shape that can be used in the 

construction of terrazzo flooring. Hurtado and Carson both testified to the presence of crushers 

at the Fairland Plant. Carson explained that, at the facility, dimension stone is taken from the 

on-site piles, broken up with a hammer attached to excavator if needed, dropped in a hopper, 

crushed, albeit slowly and deliberately, screened for a particular size, then recirculated through 

the same system as many times as necessary to achieve the correct size and shape for Cactus 

Canyon’s terrazzo stone customers. Carson himself stated that “[a]ll we’re doing is size 

reducing.” Tr. 150. 

As outlined in Watkins Eng’rs & Constructors, the mining industry’s understanding of 

the terms “milling” and “mill,” as well as the common dictionary definitions of “a mill” and “to 

mill” all contemplate the crushing of material. Here, Cactus Canyon was crushing dimension 

stone to produce stone used to construct terrazzo flooring. Moreover, Cactus Canyon’s use of 

crushers to reduce the size of the dimension stone clearly amounted to “crushing” as that term is 

defined in the Interagency Agreement.16 

 

Cactus Canyon engaged “milling” at the Fairland Plant by “sizing” the material it 

processed. In State of AK Dept.of Transp., 36 FMSHRC 2642, 2649 (Oct. 2014), the 

Commission cited the Interagency Agreement’s inclusion of “sizing” in its list of milling 

processes and found that the operator “clearly engag[ed] in ‘milling’ under section (h)(1)” 

where it used a screen to separate material “based on size, with oversized rock separated out 

entirely.” Here, like the operation at issue in State of AK Dept.of Transp., the Fairland Plant 

screened material to separate that which was correctly sized from that which was still oversized. 

While the operation at issue in State of AK Dept.of Transp. screened out oversized rock, wood 

and trash from the material it was extracting, here, as discussed above, Cactus Canyon subjected 

16 The DMMRT 135 (2d ed. 1997), defines “crushing” as “size reduction into relatively 

course particles by stamps, crushers, or rolls.” The Interagency Agreement’s definition of the 

“crushing,” supra, is almost identical to that of the DMMRT, but also includes a supplemental 

statement that “[c]rushing may be done in one or more stages, usually preparatory for the 

sequential stage of grinding, when concentration of ore is involved.” Cactus Canyon, in its brief, 

seemingly argues that this supplemental statement changes the definition of “crushing” to require

that the act be preparatory to the sequential stage of grinding and concentration of ore. CC Br. 3-

4, 9-10. However, the supplemental statement says only that crushing “may” be done in one or 

more states and “usually” is preparatory for grinding when concentration of ore is involved. 

Given the use of the qualifying terms “may” and “usually,” I decline to find that “crushing,” as 

defined in the agreement, requires that the act be preparatory to the sequential stage of grinding 

and concentration of ore. 

45 FMSHRC Page 391
oversized material to further “milling” via additional crushing to further reduce the size and 

shape of the rock. Ultimately, the purpose of screening and crushing the material was to 

produce a product that, according to Carson, was less than 3/8 of an inch, but greater than 1/16 

of an inch, and “almost purely cubicle in shape.” Given that Cactus Canyon crushed and 

screened rocks of various size to produce a product between a maximum and minimum size, I 

find that it clearly engaged in “sizing” material as that term is defined in the Interagency 

Agreement. 

Finally, I find that the processes described above and utilized at the Fairland Plant fit 

within the Interagency Agreement’s description of “milling.” Cactus Canyon utilized those 

processes to reduce the dimension stone to a certain specified size and shape so it could be sold 

for use in terrazzo stone flooring. At hearing, when responding to a question the court asked 

regarding the processes used at the facility, Carson stated that “when we’re doing it right now, 

we lose 10 percent to fines. 15 percent to fines.” Tr. 176. The materials lost to fines had to be 

removed from the terrazzo stone product Cactus Canyon produces and sells.17 The separation of 

valuable terrazzo stone material from fines generated during crushing and sizing is the type of 

process contemplated by the Interagency Agreement’s definition of milling, i.e., a separation of 

the valuable minerals from materials that cannot be used in terrazzo flooring.18 

Based on the above analysis, I find that “milling,” as that term is understood both in the 

mining industry and commonly, occurred at the Fairland Plant. Moreover, I find that the 

Fairland Plant’s operation squarely fits within the Interagency Agreement’s definitions of 

“crushing” and “sizing” and that the Secretary reasonably applied the term “milling” to the 

facility. 

The Commission has explained that “milling” “independently qualifies . . . [an] 

operation as a ‘mine’ within the meaning of the Act.” Drillex Inc., 16 FMSHRC 2391, 2395 

(Dec. 1994). Moreover, the legislative history of the Act makes clear Congress intended “that 

what is considered to be a mine and to be regulated under this Act be given the broadest 

possibl[e] interpretation, and . . . that doubts be resolved in favor of inclusion of a facility within 

the coverage of the Act.” S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on 

Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 602 (1978) (“Legis. Hist”). Accordingly, I find that the Fairland Plant is a mine 

under the Act because “milling” occurred at the facility. 

Before turning my attention to whether the products of the mine enter commerce or the 

operation or products of the mine affect commerce, I must first address one of Cactus Canyon’s 

primary jurisdictional arguments, which merits further discussion. 

17 Carson explained that the terrazzo industry depends on good quality control. Tr. 144. 

18 I note that in Watkins Eng’rs & Constructors, 24 FMSHRC 669, 675 (July 2002) the 

Commission stated that “[i]n enacting the Mine Act, Congress did not impose upon the Secretary 

a technical definition of milling based on the separation of valuable from valueless materials, nor 

in the Act’s legislative history did it intimate that separation was critical to the determination that 

‘milling’ took place.” 

45 FMSHRC Page 392
Cactus Canyon argues the Fairland Plant is not subject to MSHA jurisdiction because it 

is not a “mine” under the Act, nor is it at, adjacent to, appurtenant to, or connected to an area of 

land where minerals were extracted from their natural deposits. CC Br. 6-8. In support of its 

argument, Cactus Canyon cites the Commission’s decision in KC Transport, Inc., 44 FMSHRC 

211 (Apr. 2022)19, as well as two cases relied upon by the Commission in that decision, i.e., 

Maxxim Rebuild Company LLC v. FMSHRC, 848 F.3d 737 (6th Cir. 2017) (“Maxxim”), and 

Dep't of Labor v. Ziegler Coal Co., 853 F.2d 529, 533-34 (7th Cir. 1988) (“Ziegler”). 

I disagree with Cactus Canyon’s interpretation. None of the three cited cases involved 

milling,20 and language in those decisions contradicts Cactus Canyon’s asserted interpretation.21

Moreover, Cactus Canyon’s interpretation contradicts precedent of the Commission and courts 

that “milling” operations independently qualify as “mines” under the Act. Drillex Inc., 16 

FMSHRC 2391, 2395 (Dec. 1994); see Sec’y of Labor v. National Cement Co. of Cal. Inc., 573 

F.3d 788, 795 (D.C. Cir 2009) (subsection (C) of the Act’s definition of “mine” can reach 

facilities “not located within an extraction area.”); see also Donovan v. Carolina Stalite Co., 

734 F.2d 1547, 1551-1552 (D.C. Cir. 1984) (the Act “does not require that . . . [structures and 

facilities used in milling] be owned by a firm that also engages in the extraction of minerals 

from the ground or that they be located on property where such extraction occurs.”) 

19 The Commission’s decision in KC Transport is currently on appeal to the D.C. Circuit 

Court of Appeals, Docket No. D.C. No. 22-1071. 

20 KC Transport involved the Secretary’s attempt to exert jurisdiction over trucks parked 

at a maintenance facility, as well as the facility itself, which was operated by an independent 

trucking company that provided hauling services to multiple businesses, including coal 

operators. Maxxim involved the Secretary’s attempt to exert jurisdiction over a shop that made 

and repaired mining equipment. Ziegler involved a question of jurisdiction over a repair shop. In 

each case, the facility, shop or equipment was not on, adjacent, or appurtenant to an extraction, 

milling, or preparation site. 

21 In KC Transport the Commission noted that the Coal Act, the predecessor to the Mine 

Act, included in its jurisdiction “‘lands’ where extractive mining, milling, or preparation occurs.” 

44 FMSHRC at 218. There, the Commission expressly acknowledged that in passing the Mine 

Act Congress did not intend to expand the scope of jurisdiction and stated that “MSHA must 

thoroughly inspect operations conducting mining, milling, and preparation activities and all 

instruments and instrumentalities used in such operations.” 44 FMSHRC at 219-220. Similarly, 

in Maxxim, the Sixth Circuit Court of Appeals noted that the text and context of the Mine Act 

“limit the agency’s jurisdiction to locations and equipment that are part of or adjacent to 

extraction, milling, and preparation sites.” 848 F.3d at 744. Finally, the Commission in KC 

Transport cited Ziegler’s recognition of the “‘geographical component’ of the situs of a facility 

[that] . . . ‘[t]he statutory definition of a coal mine plainly contemplates that the facilities used in 

the work of extracting coal must be located on or below the area of land where the coal is 

extracted, milled, or prepared.’” 44 FMSHRC at 223 (emphasis added). 

45 FMSHRC Page 393
The Commission in KC Transport found that there is “locational” element to the Mine 

Act’s definition of “coal or other mine.” My reading of that decision, in conjunction with other 

case law, is that the locational element limits jurisdiction under subsection (C)22 to “lands, 

excavations, underground passageways, shafts, slopes, tunnels and workings, structures, 

facilities, equipment, machines, tools, or other property including impoundments, retention 

dams, and tailings ponds” used in, or to be used in, or resulting from the work of extracting 

minerals, as well as “lands, excavations, underground passageways, shafts, slopes, tunnels and 

workings, structures, facilities, equipment, machines, tools, or other property including 

impoundments, retention dams, and tailings ponds” where minerals are milled or prepared. Here, 

although there was no extraction at the Fairland Plant, there was “milling.” 

Based on the above analysis, I find that the lack of an extraction site, on, adjacent to, or 

appurtenant to the Fairland Plant is not fatal to MHSA’s assertion of jurisdiction over the facility. 

Do the products of the Fairland Plant enter commerce or the operation or products of 

the Fairland Plant affect commerce? 

The Secretary asserts that the products of the Fairland Plant affect interstate commerce 

and beyond because, according to Carson, they are sold “across North America and occasionally 

the Far East.” Sec’y Br. 10. Cactus Canyon argues that because the dimension stone delivered 

to, and processed at, the Fairland Plant already entered commerce, the facility cannot be subject 

to Mine Act jurisdiction. CC Br. 3 

 The Commission has recognized that “[b]ecause Congress, in the Mine Act, intended to 

exercise the full reach of its authority under the Commerce Clause, the Secretary has a minimal 

burden to show that . . .[a mine’s] operations or products affect interstate commerce.” Jerry Ike 

Harless Towing, Inc. and Harless Inc., 16 FMSHRC 683 (Apr. 1994); State of AK Dept.of 

Transp., 36 FMSHRC 2642, 2645 (Oct. 2014). 

 I find that the Fairland Plant’s products affect “commerce” as that term is used in the 

Act.23 Carson testified at hearing that Cactus Canyon sells terrazzo stone produced at the 

Fairland Plant “across North America and occasionally the Far East.” Tr. 147. I have already 

found that Cactus Canyon engaged in “milling.” In State of AK Dept.of Transp. the Commission 

stated that “any mining or milling that an entity engages in for its own use constitutes 

‘commerce’ under section 4 of the Mine Act.” 36 FMSHRC at 2645. Here, Cactus Canyon not 

only engaged in milling, but also sold milled products “across North America” and other places. 

The Act’s definition of “commerce” includes “trade . . . between a place in a State and any place 

22 Neither subsection (A) or (B) are at issue in the instant proceeding. As a result, my 

analysis and consideration of any locational element is restricted to subsection (C). 

23 Section 3(b) of the Mine Act defines “commerce” as “trade, traffic, commerce, 

transportation, or communication among the several States, or between a place in a State and any 

place outside thereof, or within the District of Columbia or a possession of the United States, or 

between points in the same State but through a point outside thereof[.]” 30 U.S.C. § 802(b). 

45 FMSHRC Page 394
outside thereof[.]” 30 U.S.C. § 802(b). I find that Cactus Canyon’s sale of terrazzo stone 

produced at the Fairland Plant “affected commerce” under the Act. 

 Cactus Canyon’s argument that the Fairland Plant cannot be subject to Mine Act 

jurisdiction because the dimension stone had already entered commerce is unavailing.24 Mine 

Act jurisdiction covers not only mines’ whose products enter commerce, but also mine 

operations or products of those operations that affect commerce. Here, I found that the Fairland 

Plant’s products affected commerce. The fact that most of the stone used in the milling process 

was purchased on the open market does not negate MSHA jurisdiction. 

Finally, although not critical to my analysis, I note that Carson testified that “[t]oday 

we’ve only - - 10 percent of business, 15 percent of our business is something that we’ve mined 

ourselves.” Tr. 152. If Cactus Canyon is milling material that it mined, then it stands to reason 

that the material would not enter commerce until Cactus Canyon milled it and sold it as terrazzo 

stone. 

It must be noted that whether a facility is subject to Mine Act jurisdiction is factually 

dependent. I relied exclusively on the evidence presented at the hearing in this case. A change in 

a facility’s operations, or different evidence produced at a hearing, could alter the result. 

 

 Having determined that the Fairland Plant’s products affect commerce, I find that the 

Secretary had jurisdiction to issue the citations discussed below, two which were issued for 

conditions observed in structures related to bagging the milled material, and one of which was 

issued for a condition observed in an onsite maintenance shop.25

24 In support of its argument, Cactus Canyon cites Herman v. Associated Elec. Coop., 

Inc., 172 F.3d 1078 (8th Cir. 1998) for an apparent “bright line” rule for jurisdiction “based upon 

where the output of the mine was processed into a marketable form.” CC Br. 12-13. There 

MSHA was found to not have jurisdiction over an electric utility plant that bought crushed coal, 

then further crushed the coal and removed debris before burning it in its generator. However, the 

facts of that case are distinguishable from the case at hand. Unlike the Fairland Plant, the utility 

plant in Herman was not “in the business of selling a raw or processed mineral product. An 

electric utility sells electricity. The coal was used as an end product at the plant, and hence the 

utility was the final consumer of the coal.” In re Kaiser Aluminum & Chem. Co., 214 F.3d 586, 

592–93 (5th Cir. 2000). Here, Cactus Canyon was “in the business of processing, or as MSHA 

claims, ‘milling,’ a mineral product for sale to others” in the form of terrazzo stone. Id. The final 

product in this case is not the terrazzo stone made at the facility but rather the terrazzo flooring is 

constructed elsewhere. 

25 Carson argues that the citations were issued in areas that have “no relationship in time, 

in function, or in location to any ‘Working Place’ or ‘Mill.’” CC. Br. 14, 15, 17. However, both 

the Mine Act and Interagency Agreement state that the Secretary “shall give due consideration to 

the convenience of administration resulting from the delegation to on Assistant Secretary of all 

authority with respect to the health and safety of miners employed at one physical 

 (continued...) 

45 FMSHRC Page 395
III. CITATIONS AT ISSUE 

a. Citation No. 9643093 

 On July 27, 2021, MSHA Inspector Hurtado issued Citation No. 9643093 under section 

104(a) of the Mine Act for an alleged violation of section 56.12004 of the Secretary’s safety 

standards, which states, in pertinent part, that [e]lectrical conductors exposed to mechanical 

damage shall be protected.” 30 C.F.R. § 56.12004. The citation alleges: 

The power cables for the Inside Bagging Belt reverse switch had

cracks in the outer jacket. The inner conductors were visible and 

exposed to damage. The switch is located near the bagging station 

that is operated by miners. The switch is used as needed during

normal operations. This exposed miners using the switch to an 

electrical hazard and electrocution injuries from damage to the

conductors. 

Hurtado determined that an injury or illness was unlikely to occur but any injury could 

reasonably be expected to be fatal. He designated the violation as not being significant and 

substantial (“S&S”), one person would be affected, and the violation was the result of Cactus 

Canyon’s moderate negligence. The Secretary proposed a civil penalty in the amount of $125.00. 

Summary of Evidence 

 Inspector Hurtado testified about the conditions he observed and the reason why he 

determined that an injury was unlikely. He said that although the outer jackets on the two power 

cables had cracks in them, the insulation surrounding the conductors inside the cables was not 

damaged with the result that the copper wires were not exposed. Tr. 27, 44. Nevertheless, he 

believed that the insulated conductors were exposed to mechanical damage because of the cracks 

he observed in the outer jackets for both cables. Tr. 27-28. He determined that the condition 

could result in a fatal accident as the current in the conductors was 220 volts. Tr. 28. The 

inspector testified that these cracks must have developed over time and were caused by vibration 

and the stress placed on the outer jacket at the cited location. Tr. 57-58, 91, 100-01. Any miner 

who operates the bagging machine was exposed to the hazard because the cracks in the outer 

jacket were near the operating controls for the bagging unit. Tr. 35. Inspector Hurtado took 

photos of the condition he observed, and the Secretary relied on these photos as part of his proof 

of a violation. Ex. 6. 

 Inspector Hurtado further testified that “mechanical damage” is any damage to which a 

cable could be exposed including environmental damage. Tr. 84. In the area where the cited 

25 (...continued) 

establishment.” 30 U.S.C. § 802(h)(1), 44 Fed. Reg. at 22828. Here, the bagging and 

maintenance structures where the citations were issued were at the same physical establishment 

as the crushing plants and screens that were used for milling, i.e., the Fairland Plant. The 

Fairland Plant is located on one integrated piece of property. Ex. G 

45 FMSHRC Page 396
cracks were present there was no protection for the insulated conductors. Tr. 90. In addition, the 

cracks in the outer jacket would likely get larger over time because of the stress on the cables. He 

said that it was a matter of time before the insulation surrounding the copper wires would also 

crack thereby exposing the copper wires. Tr. 93. If the cables vibrate when the bagging machine 

is operating, the cracks in the outer jacker could develop more quickly. Tr. 101. The cited 

condition was abated when Cactus Canyon installed new cables. 

 Carson testified that because no copper was showing, the Secretary failed to show that 

any hazard was present. Tr. 160. In addition, because it would be difficult for anyone to get their 

fingers inside the cracks, no hazard was present. Id. 

Analysis 

 

 A “conductor” is defined as “a material, usually in the form of a wire, cable, or bus bar, 

capable of carrying an electric current.” 30 C.F.R. § 56.2. The language of the safety standard 

was designed to ensure that mines protect electrical conductors in locations where they are 

exposed to mechanical damage. Installing an electrical cable with an outer jacket meets the 

requirements of this standard. In this instance, Cactus Canyon installed two electrical cables that 

included an outer jacket that protected the inner electrical conductors from mechanical damage. 

Thus, when the cables were installed, Cactus Canyon met the requirements of the safety 

standard. I find that the evidence establishes that the cracks in the outer jacket of two cables had 

developed over time and that, more than likely, the cracks were created because the cables were 

bent at very extreme angle at the location of the cracks.26 The cables appear in the photos to be 

bent to an angle of about 90 degrees. Ex. 6. This put the cables under stress and subject to 

slowly developing damage. 

 The issue is whether the cracks in outer jackets of electrical cables violated the safety 

standard. The standard requires that electrical conductors that are “exposed to mechanical 

damage” be protected. As a consequence, in order to meet his burden of proof for section 

56.12004, the Secretary must establish that the cited cables were exposed to mechanical damage. 

For the reasons set forth below, I find that the Secretary met this burden. 

 The cracks in the outer jackets developed as a result of the environment where the cables 

were installed. It is not clear how long the cables had been in use, but I find that the evidence 

establishes that the cracks in the outer jacket had been developing for some time rather than from 

a sudden event. Nothing in the safety standard suggests that the damage that a conductor could 

be exposed to must be the result of blunt force in order for the standard to apply. These cracks 

exposed the inner insulated conductors to further environmental damage. The bagging room can 

get dusty. Dust and dirt can cause further degradation to the outer jacket and the inner 

conductors. In addition, it is likely that, if the condition was not abated, the cracks would expand 

thereby increasing the exposure of the insulated conductors to damage. 

26 The Secretary argues that the cited condition could have been caused by vibrations, but 

it is not clear that the cables were, in fact, subject to vibrations. The inspector never observed the 

bagging unit in operation and when asked if either cable vibrates when the bagging unit was in 

use, he simply replied “[i]t could.” Tr. 93-94. 

45 FMSHRC Page 397
 In Northern Illinois Service Co., 36 FMSHRC 2811, 2818 (Nov. 2014) (ALJ), the outer 

jacket of an electrical cable was torn for about a half of an inch exposing the inner insulated 

conductors. The power cable was located in an outdoor area. The inspector determined that the 

“breach in the cable’s outer jacket exposed the inner electrical conductors to possible mechanical 

damage such as ‘equipment, material, weather, and UV radiation.’” Id. Based on this evidence, 

the administrative law judge affirmed the citation and determined that “[a]ssuming normal and 

continuing mining operations, even factoring in the twenty-five or less production days during a 

normal work year, it is reasonably likely the breach in the outer insulation would cause the 

insulation on the inner conductors to fail due to the effects of weathering and/or friction.” Id. at 

2819. 

In Knock’s Building Supplies, 20 FMSHRC 535, 546-47 (May 1998) (ALJ), the judge 

determined that a violation existed where the inner conductors of a power cord were exposed due 

to cracks in the cord’s “mechanical protection.” Although the operator argued that there was no 

violation because the inner wires were still insulated, the Judge determined that this argument 

may be relevant in evaluating whether a violation is S&S but not in determining whether there 

was a violation of the safety standard. 27

 Consistent with these decisions, I find that the Secretary established a non-S&S violation 

of section 56.12004. The violation was unlikely to result in an injury. Inspector Hurtado 

determined that if a miner was injured as a result of this violation, it could reasonably be 

expected to be fatal because the cables carried 220 volts. Tr. 111. I find his analysis on this issue 

to be superficial. Many factors must be considered when determining whether an electrical 

violation could reasonably be expected to cause a fatality, not just the voltage. Given that the 

cracks were quite narrow and difficult to reach, I find that the gravity of the violation was low. I 

affirm the inspector’s determination that the violation was the result of Cactus Canyon’s 

moderate negligence because the violative condition was in plain sight. A penalty of $125.00 is 

appropriate. 

b. Citation No. 9643094 

Citation No. 9643094, issued under section 104(a) of the Mine Act on July 27, 2021, also 

alleges a violation of Section 56.12004. The Condition or Practice section of the citation states, 

in pertinent part, as follows: 

The power cable for the 120 volt outlet in the Dust/ Fines Bagging 

Room was not attached to the fitting at the outlet box. This exposed 

the inner conductors to damage from not having protection from the 

outer jacket secured to the fitting. Damage to the conductors can 

cause an electrical hazard and expose a miner working in the 

27 In Northern Aggregate Inc., 37 FMSHRC 562, 574, 581-83 (March 2015) (ALJ), a 

judge vacated a citation alleging a violation of section 56.12004 on the basis that the conductor 

was not exposed to mechanical damage due to its location but affirmed a different citation 

alleging a violation of the standard on the basis that the conductor was exposed to damage. 

45 FMSHRC Page 398
bagging room to electric shock or burn injuries. The bagging room 

outlet is used as needed. 

Inspector Hurtado determined that an injury was unlikely to be sustained, but that if an injury 

were sustained it could reasonably be expected to result in lost workdays or restricted duty. He 

further determined that the condition was non-S&S, affected one person, and was the result of 

the operator’s moderate negligence. The Secretary proposed a penalty of $125.00 for this alleged 

violation. 

Summary of Evidence 

Inspector Hurtado testified that he observed the condition when he examined the 110-volt 

outlet box. Tr. 41. He took photos which show the conditions he cited. Ex. 7. He testified that the 

power cable for the outlet was not properly attached to the fitting at the outlet, which exposed the 

inner conductors to mechanical damage. Tr. 37-39. He stated that this violation exposed anyone 

using the outlet to a hazard of electrical shock. Inspector Hurtado assumed that the condition had 

existed for “some time” after something pulled on the wire. Tr. 105. He admitted that no copper 

wires were exposed and that the gap from the fitting to where the outer jacket began was small. 

Tr. 103-04. 

Carson testified that section 56.12008 should have been cited, which requires that 

“(p)ower wires and cables shall be insulated adequately where they pass into or out of electrical 

compartments.” He also stated that the outlet was in an area that was rarely used and a long 

distance from active operations. Tr. 164. There was still fabric surrounding the insulated wires in 

the power cord. Tr. 163. He cannot recall anyone ever using the outlet. Finally, he testified that 

the electrical cables in the cited area would not be exposed to any mechanical damage. 

Analysis 

I find that the Secretary established a non-S&S violation. Only a small part of the jacket 

for the power cord was not under the clamp on the outlet. Ex. 7. The insulation on the conductors 

was still present. The condition may have existed when the outlet was initially installed or the 

power cord could have been pulled out of the clamp at some point. Whether the power cord was 

subject to mechanical damage is a close question. After exiting the outlet, the power cord ran 

inside a channel on what Carson called a “purlin.” Tr. 107; Ex 7 p. 2. Given its location resting 

inside a channel it is hard to envision how anything could pull on the power cord to cause 

additional mechanical damage. Nevertheless, as with the previous citation, environmental 

conditions could further damage the exposed area of the power cord, thereby creating a hazard. If 

the insulation surrounding the individual wires were to degrade, someone could be exposed to an 

electric shock hazard when using the outlet. I find that this violation was not serious because the 

events necessary to actually expose anyone to a hazard were unlikely.28 

I find that it was unlikely that the violation would result in an injury and that any injury 

would most likely not be serious. I credit the testimony of Carson that this outlet was rarely, if 

28 I agree with Carson that section 56.12008 is more applicable to the condition cited. 

45 FMSHRC Page 399
ever, used. I also find that the cited condition was not easy to see. As a consequence, I find that 

Cactus Canyon’s negligence was low. A civil penalty of $125.00 is appropriate. 

c. Citation No. 9643095 

Citation No. 9643095, issued under section 104(a) of the Mine Act on July 27, 2021, 

alleges a violation of Section 56.12019 of the Secretary’s safety standards, which requires that 

“[w]here access is necessary, suitable clearance shall be provided at stationary electrical 

equipment or switchgear.” 30 C.F.R. § 56.12019. The Condition or Practice section of the 

citation states, in pertinent part, as follows: 

Suitable clearance to the breaker box located in the rear-left corner 

of the maintenance shop was not maintained. The access to the 

breaker box was blocked with welding machines, utility cart, and 

buckets. The breaker box provides power to the shop. This exposed 

a miner to electric short or burns should an electrical hazard occur 

and not being able to access the breaker box to de-energize power. 

The shop is used daily. 

Inspector Hurtado determined that an injury was unlikely to be sustained, but that if an injury 

were sustained it could reasonably be expected to result in lost workdays or restricted duty. He 

further determined that the condition was non-S&S, affected one person, and was the result of 

the operator’s moderate negligence. The Secretary proposed a penalty of $125.00 for this alleged 

violation. 

Summary of Evidence 

When Inspector Hurtado entered in the maintenance shop, he observed that there was “no 

suitable clearance to the breaker box . . . that’s mounted on the wall in the rear left corner.” Tr. 

48. He testified that there were portable welder units, miscellaneous parts, boxes, buckets and 

carts blocking access to the breaker box. Tr. 48-49. He referenced the photograph he took in the 

maintenance shop to illustrate the conditions he observed. Ex. 8 p. 1. The photo clearly shows 

that an employee would have a difficult time reaching the cited breaker box. 

On cross examination, the inspector testified that the breaker box was electrical 

equipment that was subject to the requirement of the safety standard. Tr. 116-17. He believed 

that the circuit breakers in the breaker box controlled power for lighting and outlets used for 

welders. Tr. 118. He stated that anyone operating a welder who encountered a problem would 

first attempt to switch it off and unplug it from the outlet, but that a situation could arise where 

the safest option would be to switch it off at the breaker box. Tr. 119-21, 131. He determined that 

an injury was unlikely because there were several ways to deenergize a welder in the shop. 

Carson testified that a breaker box is not electrical equipment because it is not the end 

user of the power being supplied. Tr. 165-66. In its brief, Cactus Canyon argues that it is 

“unsupported nonsense to urge equivalence.” CC. Br. 17. It also argues that the inspector “could 

not identify any reasonable circumstances where anyone using plugged-in equipment would not 

45 FMSHRC Page 400
first disengage (let go of the trigger), then unplug a welder instead of running across the room to 

throw a breaker.” CC Br. 17-18. 

Analysis 

 Although the Commission has not addressed section 56.12019, at least one Commission 

judge has done so. In VT Unfading Green Slate Co. Inc., 23 FMSHRC 310 (Mar. 2001) (ALJ) a 

judge affirmed a violation of 56.12019 where an inspector testified that a truck tire, cardboard 

boxes and pallets prevented access to electrical panel boxes in a storage shed. 

 I find that the Secretary established a non-S&S violation of section 56.12019. It would 

have been difficult to reach the breaker box without tripping or falling. Indeed, the evidence 

shows it would have been impossible to reach the breaker box without first moving pieces of 

equipment. Ex. 8 p. 1. Circuit breakers serve to stop the flow of electrical current in the event of 

an overload or short circuit. The Secretary’s regulations do not define the term “switchgear.” 

However, dictionaries, as well as other sources, make clear that “switchgear” includes circuit 

breakers and other types of electrical devices that serve to switch, interrupt, control, meter, 

protect, and regulate the flow of electricity. See e.g. DMMRT 557 (2d ed. 1997). Although the 

inspector apparently viewed the breaker box as a piece of stationary “electrical equipment,” I 

need not determine whether that characterization was correct given that the breaker box was 

quite clearly “switchgear.” 

 The fact that there were other means to deenergize electrical equipment in the shop 

relates to the gravity of the violation. Even assuming that gaining access to the breaker box 

would not typically be necessary in an emergency, having the area clear provided an extra 

measure of safety in the event that immediate access to the breaker box was necessary. It has 

long been held that safety standards should be interpreted to maximize the safety of miners. I 

also find that the violation was unlikely to result in an injury and that any injury would, at most, 

lead to lost workdays or restricted duty. I affirm the inspector’s determination that the violation 

was the result of Cactus Canyon’s moderate negligence because the violation was obvious. A 

penalty of $125.00 is appropriate. 

IV. CIVIL PENALTIES 

 I determined an appropriate penalty for each violation taking into consideration the 

provisions of sections 110(i) and 110(k) of the Mine Act. My findings with respect to gravity 

and negligence are discussed above. Cactus Canyon has a history of six paid citations in the 18 

months preceding the July 2021 inspection. Ex. 1. The parties did not present evidence as to 

Cactus Canyon’s size but Exhibit A to the penalty petition indicates that it was assigned 3 penalty 

points for the size criterion, which correlates with a small metal/nonmetal mine operator. 30 

C.F.R. § 100.3 Table III. The penalties I assess will not affect Cactus Canyon’s ability to continue 

in business. Based on the penalty criteria I assess a total penalty of $375.00. The Secretary 

proposed the minimum penalty for each citation. See 30 C.F.R. § 100.3(g), Table XIV (2021) 

(Considering the 10% good faith abatement reduction). Given the low penalties, a penalty 

reduction for Citation No. 9643094 is not appropriate. 

45 FMSHRC Page 401
V. ORDER 

For reasons set forth above, I find that milling occurs at the Fairland Plant with the result 

that it is subject to Mine Act jurisdiction. Citation No. 9643093 is AFFIRMED as issued. 

Citation No. 9643094 is MODIFIED to reduce the negligence but otherwise AFFIRMED as 

issued. Citation No. 9643095 is AFFIRMED as issued. Cactus Canyon is ORDERED TO PAY 

the Secretary of Labor the sum of $375.00 within 40 days of the date of this decision.29

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

Distribution: 

Felix R. Marquez, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, 

Suite 501, Dallas, TX., 75202, Email: (Marquez.Felix.R@Dol.gov) 

Andy Carson, Esq., Cactus Canyon Quarries, 7232 CR 120, Marble Falls, TX 78654 

(acarsonmarblefalls@aol.com) 

29 Payment (check or money orders) should be sent to U.S. Department of Labor, Mine 

Safety and Health Administration, Payment Office, P.O. Box 790390, St. Louis, MO. 63179-

0390; Electronic payments can be applied via https://www.pay.gov/public/form/start/67564508 

Please include Docket Number & A.C. Numbers with payment. 

45 FMSHRC Page 402
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th ST. SUITE 443 

DENVER, CO 80202-2500 

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

May 25, 2023 

DECISION AND ORDER

Appearances: Larson A. Welsh, Law Office of Hayes & Welsh, 199 N. Arroyo Grande 

Boulevard, Suite 200, Henderson, NV 89074 

 

 Kristin R.B. White, Fisher & Phillips LLP, 1125 17th Street, Suite 2400, 

Denver, CO 80202 

Before: Judge Simonton 

This case is before me upon a complaint of discrimination filed by Todd Descutner 

(“Descutner”) against Nevada Gold Mines (“NGM”), 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).1 Descutner 

contends that NGM terminated him for engaging in protected activity. NGM asserts that it 

properly terminated Descutner under the company’s progressive discipline policy. 

A hearing was held on December 6–7, 2022, in Salt Lake City, Utah. Based on my full 

consideration of the testimony and exhibits presented at hearing, the stipulations of the parties, 

my observations of the demeanor of the witnesses, and the parties’ post-hearing briefs, I find that 

NGM did not violate the Mine Act when it terminated Descutner. 

1

 In this decision, the joint stipulations, transcript, Complainant’s exhibits, and 

Respondent’s exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. C-#,” and “Ex. R-#,” 

respectively. References to the transcript include numerals I or II to denote the volume of the 

transcript referenced, since each day’s transcript is independently paginated. 

TODD DESCUTNER, 

 Complainant, 

 v. 

NEVADA GOLD MINES LLC, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2022-0201 

MSHA Case No. WE-MD-2022-01 

Mine: Leeville 

Mine ID: 26-02512

45 FMSHRC Page 403
I. STIPULATIONS 

In their prehearing submissions, the parties submitted the following joint stipulations: 

1. Todd Descutner was employed by NGM until his termination date of 

November 2, 2021. 

2. Descutner was a “miner” as defined in sections 3(g) and 105(c) of the 

Mine Act, 30 U.S.C. §§ 802(g), 815(c). 

3. NGM’s Leeville Mine is a “coal or other mine” as defined in Section 

3(h)(1) of the Mine Act, 30 U.S.C. § 802(h)(1). 

4. The Federal Mine Safety and Health Review Commission has jurisdiction 

over the subject matter of this case pursuant to Section 105(c)(3), 30 

U.S.C. § 815(c)(3) of the Mine Act. 

II. FINDINGS OF FACT 

A. Background 

Nevada Gold Mines is a joint venture that formed in 2019 as a merger of two gold 

companies: Newmont Corp. and Barrick Gold Corp. Tr. I, 18; Respondent’s Post-Hearing Brief 

(“Resp. Br.”) at 2. The Leeville Mine (“Leeville” or “mine”) is an underground gold mine 

operated by NGM and located in northern Nevada. Tr. I, 18–19; Resp. Br. at 2. At Leeville, 

hourly miners are required to take contracted buses to work at the mine site—they are not 

permitted to drive themselves to work. Tr. I, 23; Tr. II, 8–9. During each shift at the mine, the 

hourly workforce is divided into three groups: production, development, and compliance/paste. 

Tr. I, 156; Resp. Br. at 2. Each of these groups is supervised by a frontline supervisor, and each 

frontline supervisor reports to a general supervisor for that group. Tr. I, 155–56; Resp. Br. at 2. 

The general supervisors for each group report to the superintendent, who reports to the site-level 

mine manager. Resp. Br. at 2. 

NGM utilizes a progressive discipline policy for its hourly employees. Tr. II, 52; Ex. RC. The policy delineates three levels—or tiers—of disciplinary action that occur before an 

employee’s termination. Tr. II, 52; Ex. R-C. The first is a documented verbal notice, the second 

is a written notice, and the third is a final notice, which may include a suspension from work. Tr. 

II, 52; Ex. R-C. Employees may be issued more than one level of discipline for a single incident. 

Tr. II, 83. Two separate, parallel discipline tracks are used at NGM—one for tardies, absences, 

and other attendance-related issues, and the other for behavioral issues and discipline relating to 

property damage. Tr. II, 56. 

Descutner worked for NGM—and Newmont Corp. prior to the merger—from 2006 until 

his termination in November 2021. Tr. I, 17; Jt. Stip. 1. He started at Newmont’s Deep Post 

Mine and began working at the Leeville Mine in 2010. As of 2019, Descutner was a tier 4 miner 

45 FMSHRC Page 404
in the development group at Leeville, regularly working four jobs in this role: shotcrete 

personnel, haul truck driver, loader operator, and utilities. Tr. I, 19. 

 

To varying degrees, several management officials were involved in the events at issue in 

this case. Don Strong and Terry Krantz were Descutner’s immediate frontline supervisors during 

the events described below. Tr. I, 40, 54–55. Derek Dominguez was a general supervisor over 

development at Leeville from December 2020 through September 2021, after which he became 

the interim superintendent. Tr. I, 157. Jeff Sorenson was a frontline supervisor for the 

maintenance shop. Tr. II, 148. Corey Myers was an interim general supervisor from August 2021 

to February 2022, after which he became a general supervisor. Tr. II, 142–143. Amy Armstrong 

was the senior human resource business partner for NGM. Tr. II, 48. 

B. COVID-19 Impacts on Descutner and NGM 

After learning of the COVID-19 pandemic in early 2020, Descutner became concerned 

about contracting the virus because of his wife’s health. Tr. I, 19–20. Descutner’s wife has 

asthma and an autoimmune deficiency, and her physician contacted her early in the pandemic to 

tell her he was concerned that if she contracted COVID-19, she may not survive. Tr. I, 19–20. At 

that time, Descutner used approximately three months of FMLA leave to quarantine with his 

wife, during which time they decided that she should quarantine separately from him once he 

returned to work. Tr. I, 20. In May or early June 2020, Descutner purchased a trailer so that he 

could live apart from his wife. Tr. I, 20–21. He returned to work and began living in the trailer in 

June 2020. Tr. I, 21. Descutner lived in the trailer for approximately 300 days, until he and his 

wife were vaccinated and moved back in with one another. Tr. I, 21. 

Like many employers, NGM modified its policies and procedures in response to the 

COVID-19 pandemic. In March 2020, the company stopped busing employees to work and 

instead used smaller light vehicles to transport them. Tr. II, 9. In June 2020, around the time 

Descutner resumed working after his FMLA leave, NGM resumed busing employees to work 

with its contracted bus operator, Coach. Tr. I, 26; Tr. II, 10. When these bus operations resumed, 

Coach implemented and enforced COVID-19 mitigation measures on the buses pursuant to state 

requirements. Tr. II, 11–12. The bus routes were changed so that they made fewer stops, and the 

number of buses was increased to accommodate a lower maximum number of passengers on 

each bus. Tr. I, 27; Tr. II, 10–12; Exs. R-BB, -CC. Additionally, miners were required to wear 

masks on the bus and sit in certain seats to allow for social distancing. Tr. I, 27–28, 134; Tr. II, 

11, 21, 33–34; Ex. R-EE. At the mine site, miners were required to wear masks unless they were 

alone or could maintain six feet of distance between themselves and others. Tr. I, 196. The 

maximum number of miners allowed on the “cage,” which is “a big elevator that takes [miners] 

underground,” was reduced from 30 to 15, and the miners on the cage were required to wear 

respirators. Tr. I, 23, 196. Miners were provided with unlimited masks and respirator cartridges, 

as well as infrared thermometers to take their temperatures before coming in to work. Tr. I, 196–

197. NGM also extended miners’ short term disability allowance and gave employees their full 

years’ worth of paid time off (“PTO”) up front so they could take the necessary time off if they 

got sick. Tr. I, 197. If miners contracted COVID-19, they were required to obtain a doctor’s 

release to return to work. Tr. I, 133. 

45 FMSHRC Page 405
C. Descutner’s Complaints 

1. December 2020/January 2021 Complaints about the Buses 

Descutner felt that, to his coworkers and generally in the area he lived, COVID-19 “was 

considered kind of a hoax, a joke, [and] not taken very seriously.” Tr. I, 22. He was particularly 

concerned about contracting COVID-19 on the bus contracted by NGM, which he was required 

to take to get to work. Tr. I, 22–23. 

Chantelle Carter, NGM’s transportation and logistics specialist, credibly testified that 

when busing resumed in June 2020, the bus contractor added buses to the schedule so that each 

bus no longer stopped at two pickup sites and two mine sites, but rather would stop at each 

pickup and mine site separately. Tr. II, 8, 10–11. From June through December 2020, there were 

seven buses taking miners to and from work at the two mine sites. Tr. II, 10, 18–19. Prior to the 

pandemic, there were three. Tr. II, 8–9. In December 2020, the total number of buses was 

reduced from seven to six, but service to Descutner’s bus stop at Spring Creek was not impacted 

by this change. Tr. II, 18–19. Carter recalled receiving occasional complaints about bus protocols 

that she passed along to the bus operator, but could not recall at the hearing if she ever received 

any complaints from Descutner. Tr. II, 31–32. 

Descutner testified about his belief that, beginning in June 2020, NGM was providing 

two buses instead of one to transport miners from the Spring Creek stop to the Leeville Mine. Tr. 

I, 26–27. He became frustrated when only one bus would arrive, which was common in the 

winter of 2020. Tr. I, 27. He also testified that few miners were abiding by the mask 

requirements. Tr. I, 27–28. When only one bus arrived, all the miners at the stop had to board the 

single bus, and, because “he had to get to work and that was the only way to get there,” 

Descutner felt forced into an uncomfortable situation. Tr. I, 27. 

In mid- or late December 2020, Descutner was involved in an incident involving a bus 

driver on his way in to work. Descutner had boarded the first bus at his bus stop when a second 

bus arrived. He got off the first bus before it departed and boarded the second. Tr. I, 28–29. He 

was the only miner who rode on the second bus, and he was frustrated and upset that the bus was 

late. Tr. I, 29, 128. He asked the driver why she could not be on time, but testified that he did not 

yell or raise his voice at her. Tr. I, 29–31. The bus driver responded that it wasn’t her fault. Tr. I, 

30. After he asked why she could not be on time, Descutner stopped talking to the bus driver and 

sat down. Tr. I, 29–30. Descutner testified that she “kept asking me where I was going,” which 

he interpreted as “digging at me a little,” because she did not like his question about being on 

time. Tr. I, 30–31. 

Derek Dominguez, then a general supervisor over development at Leeville, testified that 

he and another general supervisor on site that morning, Zach Wright, were notified by a 

dispatcher that an employee on the bus inbound from Spring Creek was being “belligerent to the 

bus driver.” Tr. I, 155, 185–86. He and Wright asked the dispatcher to call the bus operator and 

find out the bus number, and they then went to meet the bus in the area where employees offload. 

Tr. I, 186. When it arrived, they saw that Descutner was the only miner on board. Tr. I, 186. 

They had a conversation with Descutner about his interaction with the driver, and Descutner told 

45 FMSHRC Page 406
them they were in a position to do something about the bus situation. Tr. I, 31–32. Descutner 

talked to them about his wife’s health and testified that it seemed like Dominguez had no 

empathy for him. Tr. I, 32–34. Descutner further testified that he referenced the “Labor 

Department” when telling Dominguez where else he might complain. Tr. I, 34–35. 

 After the conversation with Dominguez and Wright, Descutner went to work; he was not 

disciplined for his interaction with the bus driver. Tr. I, 38–39. According to Descutner, nothing 

was done to address his concerns regarding the frequent shortage of buses and the routine lack of 

masks on the bus. Tr. I, 39. 

 Shortly after the incident with the bus driver, Descutner also complained about the buses 

to his supervisor, Don Strong, in either late December 2020 or early January 2021. Tr. I, 40–41. 

Strong did not respond to the complaint verbally, but gave him a look that Descutner interpreted 

to mean, “give it a rest.” Tr. I, 41. 

2. Complaints to MSHA and Other Agencies 

Between December 2020 and March 2021, Descutner and his wife made numerous calls 

to outside organizations to complain about NGM’s lax enforcement of COVID-19 mitigation 

measures and what they believed to be unsafe working conditions. Tr. I, 35–38, 138–143; Ex. C18. They called Nevada’s Labor Commission, the Occupational Safety and Health 

Administration, MSHA, Nevada’s Governor, and the American Civil Liberties Union. Ex. C-18. 

3. June or July 2021 Complaint Regarding Low Morale and Promotions

In late June or early July 2021, Descutner also raised a concern unrelated to COVID-19 

protocols at a crew meeting. Tr. I, 51. He felt that people should be “signed off” on the Tech 4 

jobs they were doing but not being paid for. Tr. I, 51–52. Descutner believed this was a safety 

concern because people who were in this situation had bad attitudes. Tr. I, 51-52. 

D. Descutner’s Conduct and Resulting Disciplinary Actions 

Descutner received discipline on multiple occasions before his termination: 

1. January 2021 Unexcused Absence 

In early January 2021, Descutner received discipline in the form of a Tier 1 documented 

verbal notice for an unexcused absence. Tr. I, 41; Ex. R-D. The night before his absence, 

Descutner experienced numerous unfortunate events related to a bad snowstorm. First, the bus 

taking him to his bus stop after work got to the Spring Creek stop around 9:30 p.m., more than an 

hour later than usual due to the snow. Tr. I, 42. Then, when driving home from the bus stop, 

Descutner’s truck got stuck in the middle of the road and he had to wait for a tow truck. Tr. I, 42. 

He finally arrived home around midnight to discover that the power to his trailer had gone out, so 

he worked on that until going to sleep around 2:00 a.m. Tr. I, 42–43. In order to make it to work 

on time, he would have had to wake up at about 4:00 a.m. and be at the bus stop around 5:00 

45 FMSHRC Page 407
a.m. Tr. I, 43. Descutner woke up around 5:30 a.m. and called his supervisor, Don Strong, to 

request the day off work. Tr. I, 43. Descutner felt that he needed the day off because, given how 

little sleep he had gotten, he was not fit for duty and could not do his job safely. Tr. I, 44. Strong 

told Descutner that he did not have any PTO and had to come in to work. Tr. I, 44. Descutner did 

not go in and received a notice of discipline the next day called a Tier 1 documented verbal 

notice. Tr. I, 45–46; Ex. R-D. This discipline did not affect NGM’s later decision to terminate 

Descutner because it was attendance-related, and that type of discipline accrues separately from 

behavioral and property damage-related discipline. Tr. II, 56, 58–59. 

2. July 2021 Interaction with Supervisor Krantz 

In July 2021, Descutner received another Tier 1 documented verbal notice for an 

inappropriate interaction with his supervisor at the time, Terry Krantz. Ex. R-E. The incident 

arose out of a disagreement between Descutner and another hourly miner, Dave Young, both of 

whom were assigned to apply shotcrete that day with a third hourly miner, Jesus Cabrera. Tr. I, 

49–50. When applying shotcrete, two miners drive batch trucks that supply the material and a 

third operates the sprayer that applies the material to the roof and ribs of the underground mine. 

Tr. I, 49; Tr. II, 61. Initially, Cabrera had agreed to spray that day, but when the miners got 

underground, the sprayer they had planned to use was inoperable, and he was not authorized to 

use the one that was functioning. Tr. II, 62. Descutner and Young were both signed off on the 

functioning sprayer but got into a disagreement about who would spray that day. Tr. I, 49; Tr. II, 

62. Young called Krantz over to determine who should spray that day. Tr. I, 50; Tr. II, 62. 

Descutner complained to Krantz about what he believed to be the real issue: “miners being asked 

to complete tasks they were not technically authorized to complete because they had not received 

the promotions they had earned.” Tr. I, 51. Krantz became frustrated with Descutner’s comments 

and raised his voice, leading Descutner to raise his voice as well. Tr. I, 52, Tr. II, 63. After some 

back and forth, Krantz told Descutner he was taking him to the surface, but Descutner refused to 

get in the vehicle with him. Tr. I, 53; Tr. II, 63. Krantz then called Don Strong, who took 

Descutner up to the surface. Tr. I, 53; Tr. II, 63. 

Once they were on the surface, Descutner attended a due-diligence meeting and Amy 

Armstrong, senior human resources business partner at NGM, got involved. Tr. II, 60. 

Armstrong took ample notes during the meeting with Descutner and the interviews she 

conducted with the other miners involved. Tr. II, 65; Ex. R-K. She credibly, in a straightforward, 

consistent and unequivocal fashion, testified that Descutner agreed his interaction with Krantz 

was inappropriate. Armstrong’s contemporaneous notes support her testimony. Tr. II, 69; Ex. RK at 18. Descutner, Young, Cabrera, and Krantz each provided statements concerning the 

incident. Exs. R-G, R-H, R-I, R-J. Krantz was also disciplined for his behavior relating to this 

incident. Tr. II, 70; Ex. R-F. 

3. October 2021 Loader Incident 

On October 19, 2021, Descutner was involved in an incident at the mine. Tr. I, 63. On 

that day, he was assigned to repair a vent bag with co-worker Garrett DeSart in the maintenance 

shop. Tr. I, 64, 225–226; Ex. R-P. Before the repair could be made, a loader that was blocking 

access to the area needed to be moved. Tr. I, 64, 227. 

45 FMSHRC Page 408
Descutner spoke to the shop supervisor, Jeff Sorenson, about moving the loader and told 

him, “if it’s a 9-yarder I could move it.” Tr. I, 65. He testified Sorenson told him it was a “loader 

80, it’s a 9 yarder, move it.” Tr. I, 64. Descutner was signed off to operate 9-yard loaders and 

asserts he did a complete equipment inspection prior to moving the loader. Tr. I, 66, 83–84. 

While in the shop area he did not utilize a spotter to help guide his movement of the loader. Tr. I, 

68. In the process of moving the loader approximately a hundred feet, he struck and damaged a 

trash dumpster. Tr. I, 66–68. After the incident occurred, Descutner was required to take a drug 

and alcohol test, which yielded a positive result due to a prescription medication he was taking. 

Tr. I, 69. The issue of his positive drug and alcohol test was later cleared up. Tr. I, 69. Descutner 

was sent home after the test and never returned to work at NGM. Tr. I, 70. 

Interim general supervisor Cory Myers conducted an initial investigation into the October 

19 incident by first gathering information from frontline supervisor Orry Stevens, who provided 

pictures of the incident scene as well as a statement from Descutner. Tr. II, 144. Myers obtained 

statements from other people who were in the area of the incident when it occurred and looked 

into Descutner’s training records to see if he was signed off on the loader involved in the 

incident. Tr. II, 144. After Stevens told Myers which loader was involved, Myers could tell it 

was an 11-yard loader, not a 9-yard loader as Descutner believed. Tr. II, 144. 

A due-diligence or fact-finding meeting was conducted to get Descutner’s input as to 

what happened. Present at the meeting were Descutner, Myers, interim superintendent Derek 

Dominguez, human resource partner Hailey Cavaness and union representative Josh Jauer. Tr. I, 

70–71, 166–167; Tr. II, 73, 145; Ex. R-W. Myers conducted additional investigation into the 

incident that occurred on October 21, 2021. After concluding his investigation and consulting 

with senior human resource partner Amy Armstrong, both Myers and Armstrong concluded that 

Descutner’s incident with the loader constituted four separate infractions of NGM’s employee 

standards. Tr. I, 165, 176–177; Tr. II, 85–86, 120–121, 151. 

The first infraction charged to Descutner was that he failed to conduct a pre-operational 

check on the loader. Tr. I, 178; Tr. II, 86, 94–95, 119–120. Descutner asserts that he did, in fact, 

conduct a complete equipment check prior to operating the loader and completed a preoperational checklist card. Tr. I, 66, 83–84. He does not recall whether he ever turned in the card 

after the October 19 loader incident. Tr. I, 84, 113. No pre-operational check card could be found 

to confirm his assertion that he completed a pre-operational inspection. Tr. I, 11, 84–86, 110, 

174, 178; Tr. II, 74. NGM asserted at hearing that, had Descutner actually conducted a preoperational inspection, he would have noticed that the loader was not one he was authorized to 

operate. Tr. I, 11, 174. Second, Descutner was not signed off to operate the 11-yard #80 loader 

involved in the incident. Tr. I, 105, 165, 180–181; Ex. R-U. Descutner testified he relied on shop 

supervisor Sorenson’s representation that the loader in question was a 9-yarder and that he could 

move it. Tr. I, 65. Descutner’s testimony is in conflict with a statement Sorenson provided to 

Myers during NGM’s investigation of the event, in which Sorenson indicated he told Descutner 

the loader was a 1700 series loader before he moved it. 2 Tr. II, 148; Ex. R-PP. Third, Descutner 

2

 The 1700 series breaks down into sub models. Tr. II, 148–149. The 9-yard loader and 

the 11-yard loader are both in the 1700 series. Tr. II, 158. 

45 FMSHRC Page 409
failed to use a spotter when moving the loader. Tr. I, 105, 165, 178. Descutner acknowledged 

this infraction. Tr. I, 68, 91–92. Fourth, Descutner caused damage to NGM equipment when the 

loader hit and damaged a company owned dumpster. Tr. I, 165, 177; Ex. R-T. Descutner 

acknowledged this infraction as well. Tr. I, 67–68, 92. 

With a documented verbal discipline notice in his personnel file for an inappropriate 

interaction with a supervisor in July 2021, Descutner was already at Tier 1 of NGM’s 

progressive discipline policy. Tr. I, 177; Tr. II, 68,151–152; Exs. R-C, -E. Based on this one 

prior active discipline and the four infractions related to the loader incident, Armstrong, Myers 

and Dominguez collectively met and made the decision to recommend to the mine manager that 

Descutner should be terminated pursuant to NGM’s progressive discipline policy. Tr. I, 158–159, 

175; Tr. II, 81–82, 84–87, 150–152; Ex. R-C.3

 Both the mine and human resource managers for 

NGM agreed and Descutner was terminated from NGM effective November 17, 2021. Tr. I, 218; 

Tr. II, 87; Ex. R-V. The decision was communicated to Descutner in a meeting with Dominguez, 

Myers and Armstrong, followed by a written termination letter dated November 17, 2021. Tr. I, 

72; Tr. II, 153; Ex-R-V. The specific reasons for termination were communicated to Descutner at 

a union grievance meeting prior to November 17. Tr. I, 72, 74. Descutner’s union grievance 

challenging his termination stopped at the step two level with a board consisting of two members 

of NGM management and two union members. Tr. II, 93. 

E. MSHA’s October 2021 Investigation 

On October 14, 2021—three days before Descutner’s incident involving the 11-yard #80 

loader—MSHA Inspector Charlie Snare came to Leeville to investigate an anonymous hazard 

complaint that NGM was not enforcing COVID-19 pandemic guidelines. Tr. I, 190–191; Ex. C4. Descutner testified he does not remember making this complaint to MSHA. Tr. I, 59. 

Dominguez met with the inspector to discuss the reason for his visit to the mine. Tr. I, 191. The 

inspector explained that they had received an anonymous complaint that NGM was not following 

their COVID-19 policies. Tr. I, 191. The inspector informed Dominguez that MSHA does not 

enforce NGM’s COVID-19 policies and stated that he wanted to explain this to all of the miner’s 

representatives in a meeting at the mine. Tr. I, 191. Dominguez proceeded to pull twelve 

underground miners off of their equipment for a meeting in the mine conference room. Tr. I, 192. 

Inspector Snare explained to the miner’s representatives that MSHA is not responsible for 

enforcing any state or company COVID-19 policies and they were getting tired of getting 

“Johnny miner” calls related to COVID-19.4

 Tr. I, 192. Snare warned the miner’s representatives 

that if the calls continued, he would shut the mine down until he was able to have the same 

conversation with each individual miner. Tr. I, 192. Snare also conveyed to Dominguez that he 

thought NGM was doing everything it could with regard to COVID-19. Tr. I, 195. 

3

 NGM’s employee standards policy lists “operating or driving equipment without 

authorization or outside its design criteria” as a first-time violation that may result in termination. 

This is one of the four infractions Descutner was charged with as a result of the loader incident. 

While the policy states one could be terminated for a single violation of this type, there is no 

indication that NGM ever considered removing Descutner for this reason alone. Ex. R-C. 

4

 “Johnny miner” is a nickname used to refer to a miner’s rights call. Tr. I, 191. 

45 FMSHRC Page 410
Descutner contends that NGM had reason to believe that he called in the anonymous 

complaint to MSHA and that this belief, though mistaken, factored into NGM’s decision to 

terminate him after the loader incident. Complainant’s Post-Hearing Brief (“Comp. Br.”) at 17. 

Dominguez, Armstrong and Myers denied having any belief or suspicion that Descutner called in 

the hazard complaint that prompted MSHA’s October 2021 appearance at the mine site. Tr. I, 

193–194; Tr. II, 87–88, 97, 100, 101–102, 152–153. Dominguez confirmed that Descutner was 

the first miner who complained to him personally about COVID-19 protocol enforcement issues 

in December 2020, when the two men discussed Descutner’s comments to the bus driver about 

being late. Tr. I, 216–217. However, Dominguez was aware there was at least one other COVID19 protocol enforcement related complaint regarding the lack of social distancing on the cage 

that took miners down into the mine. Tr. I, 219–220. As a result of that complaint, NGM began 

requiring miners to wear respirators while riding in the cage. Tr. I, 196, 219–220. Armstrong 

testified that she personally investigated COVID-19 protocol enforcement complaints made by 

miners other than Descutner. Tr. II, 97–100. 

Dominguez, Armstrong and Myers, the three individuals involved in the investigation 

and recommendation to terminate Descutner, testified that Descutner’s December 2020 and 

January 2021 COVID-19 protocol enforcement complaints played no role in their October 2021 

investigation or November 2021 unanimous recommendation. Tr. I, 218–219; Tr. II, 100, 152–

153. Armstrong and Myers testified they were not aware, at the time of the investigation or 

termination recommendation, that Descutner had previously made COVID-19 protocol 

enforcement complaints to Dominguez or supervisor Strong, respectively. Tr. II, 100, 152–153. 

III. DISPOSITION 

Section 105(c)(1) of the Mine Act provides that a miner shall not be discharged or 

otherwise discriminated against because they have made a complaint regarding an alleged safety 

or health violation. 30 U.S.C. § 815(c)(1). It specifically states: “No person shall discharge or in 

any manner discriminate against or cause to be discharged or cause discrimination against or 

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

. . has filed or made a complaint under or related to this Act, including a complaint notifying the 

operator or the operator's agent . . . . of an alleged danger or safety or health violation in a coal or 

other mine.” 

For more than forty years, the Commission has utilized the Pasula-Robinette framework 

to adjudicate claims of discrimination brought under section 105(c) of the Mine Act. 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); Sec'y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 805, 

817–18 (Apr. 1981). Under the traditional Pasula-Robinette framework, a miner alleging 

discrimination established a prima facie case of prohibited discrimination by presenting evidence 

sufficient to support a conclusion that (1) the complainant engaged in protected activity, and (2) 

the adverse action complained of was motivated in any part by the protected activity. Jayson 

Turner v. Nat'l Cement Co., 33 FMSHRC 1059, 1064 (May 2011); Driessen v. Nev. Goldfields, 

Inc., 20 FMSHRC 324, 328 (Apr. 1998); Pasula, 2 FMSHRC at 2799; Robinette, 3 FMSHRC at 

45 FMSHRC Page 411
817–18. If a miner established a prima facie case, the operator could then rebut the case “by 

showing either that no protected activity occurred or that the adverse action was in no part 

motivated by the protected activity.” Turner, 33 FMSHRC at 1064. If the operator could not 

rebut the prima facie case, it could nevertheless defend affirmatively by proving that although 

part of its motivation was unlawful, the adverse action was also motivated by the miner’s 

unprotected activity, and it would have taken the adverse action against the miner for the 

unprotected activity alone. Id.; Pasula, 2 FMSHRC at 2799–2800. 

The Ninth Circuit recently abrogated this longstanding framework in Thomas v. 

CalPortland Co., 993 F.3d 1204 (9th Cir. 2021) (remanding 105(c)(3) case for Commission to 

apply “but-for standard”). Looking to recent Supreme Court precedent, the Ninth Circuit noted 

that section 105(c) of the Mine Act uses the term “because of” four times—each time without 

any modifiers—and concluded that it thus plainly incorporates a “but-for” causation standard. Id.

at 1210. Accordingly, “[s]ection 105(c)’s unambiguous text requires a miner asserting a 

discrimination claim under Section 105(c) to prove but-for causation.” Id. at 1211. 

In a recent FMSHRC ALJ case, Walker v. Capurro Trucking, 44 FMSHRC 1, (January 7, 

2022), Judge Sullivan articulated the “but for” causation standard well. A discrimination 

complainant must show that (1) he engaged in what is known as “protected activity” (i.e., “the 

exercise of statutory rights”); and (2) that the adverse action complained of (here the 

Complainant's discipline and termination) was “because” of that protected activity. In other 

words, at least in cases ultimately subject to Ninth Circuit review as this present case is, a 

Complainant must show that his employer would not have taken the adverse action against him, 

“but for” the protected activity he engaged in. Thomas v. CalPortland Co., 43 FMSHRC 314 

(June 2021) (ALJ) (decision on remand applying but-for standard), pet. for rev. filed Dec. 29, 

2021; see also Sec'y of Labor on behalf of Saldivar v. Grimes Rock, Inc., 43 FMSHRC 299, 302–

303 (June 2021). 

A. Protected Activity 

A miner has engaged in protected activity if they (1) have “filed or made a complaint 

under or related to this Act, including a complaint . . . of an alleged danger or safety or health 

violation;” (2) are “the subject of medical evaluations and potential transfer under a standard 

published pursuant to section 101;” (3) have “instituted or caused to be instituted any proceeding 

under or related to this Act or has testified or is about to testify in any such proceeding;” or (4) 

have “exercised on behalf of himself or others . . . any statutory right afforded by this Act.” 30 

U.S.C. § 815(c)(1) (emphasis added). 

Unquestionably, raising safety concerns at work constitutes “protected activity” within 

the ambit of section 105(c). Sec’y of Labor on behalf of Riordan v. Knox Creek Coal Corp., 38 

FMSHRC 1914, 1922 (2016) (“Raising safety concerns is paradigmatic ‘protected activity’ 

within the meaning of section 105(c)(2).”). 

45 FMSHRC Page 412
1. December 2020 – January 2021 COVID Protocol Related Complaints 

It is undisputed that Descutner raised concerns to then General Supervisor Dominguez in 

December 2020 relating to COVID-19 protocols on the buses that transported miners to the mine 

site. Descutner also complained about the buses to his supervisor, Don Strong, in either late 

December 2020 or early January 2021. Tr. I, 40–41. Specifically, he was concerned about the 

lack of mask-wearing and that, at times, only one bus would show up when there should have 

been two to insure proper social distancing. Tr. I, 22–23. 

Between December 2020 and March 2021, Descutner and his wife made numerous calls 

to outside organizations to complain about NGM’s failure to enforce COVID-19 mitigation 

measures and what they believed to be unsafe working conditions. Tr. I, 35–38, 138–143; Ex. C18. They called Nevada’s Labor Commission, the Occupational Safety and Health 

Administration, MSHA, Nevada’s Governor, and the American Civil Liberties Union. Ex. C-18. 

NGM asserts that Descutner’s expressed concerns over COVID-19 related protocols are 

beyond the purview of MSHA and therefore are not protected by the Mine Act. Resp. Br. at 15. 

Specifically, NGM argues there is no provision under the Mine Act or any MSHA mandatory 

standard that specifically addresses exposure to COVID-19. Resp. Br. at 16. They go on to argue 

that MSHA’s actions on October 21, 2021—whereby an inspector, as an authorized 

representative of MSHA, informed both NGM management and designated miners’ 

representatives that MSHA is not responsible for enforcing company or state COVID-19 

policy—supports the conclusion that Descutner’s protocol-related complaints do not constitute 

protected activity under the Mine Act. Resp. Br. at 17. I disagree. 

The legislative history of the Mine Act states that Congress intended the scope of 

protected activity to be broadly interpreted. In enacting section 105(c) of the Act, Congress 

specifically noted that: “if miners are to be encouraged to be active in matters of safety and 

health, they must be protected against any possible discrimination which they might suffer as a 

result of their participation.” S.Rep. No. 95–181 at 35. Congress further stated that the Act is 

“illustrative and not exclusive,” and should be “construed expansively to assure that miners will 

not be inhibited in any way in exercising any rights afforded by the legislation.” Id. at 36. 

So long as a miner has a good faith belief that a safety hazard exists, they are protected in 

bringing their concern to the operator. Robinette, 3 FMSHRC 803; Gilbert v. FMSHRC, 866 F.2d 

1433 (D.C. Cir. 1989). It is well established that a “good faith belief simply means [an] honest 

belief that a hazard exists.” Id. Whether perceived hazards are actually unsafe is not 

determinative of the protected status of a complaint. Sec’y of Labor obo McGill v. U.S. Steel 

Mining Co., 23 FMSHRC 981, 986 (2001); Consolidation Coal Co. v. Marshall, 663 F.2d at 

1215. Alleged hazards are considered to be “related to” the Act, and are therefore protected by 

105(c)(1). Cullinan v. Peabody Twentymile Mining LLC, 36 FMSHRC 205, 207. 

First, it is important to note that Descutner’s complaints to NGM management and 

outside agencies regarding the failure of miners to follow state-mandated and companyestablished COVID -19 protocols occurred as early as December 2020—well before MSHA 

appeared at the mine in October 2021 to announce to the miners’ representatives that they would 

45 FMSHRC Page 413
not enforce COVID-19 protocols. Tr. I, 28–37, 40–41, Tr. I, 190–191; Exs. C-4, -18; Ex. R-DD. 

Second, it is undisputed Descutner had well-founded safety related reasons for lodging his 

complaints—especially given that his spouse was immunocompromised. Tr. I, 19–38. Without 

question, I find Descutner acted reasonably and with the good faith (albeit mistaken) belief that 

the failure to follow COVID-19 protocols was a health and issue under MSHA’s Mine Act 

purview. NGM has presented no evidence supporting its argument that Descutner had any reason 

to believe otherwise. I find that Descutner engaged in protected activity as it relates to his 

complaints to Dominguez and Strong from December 2020 extending into early 2021. This 

activity included complaints regarding the number of buses available for transportation to 

maintain social distancing, the failure of miners to maintain that distancing and the failure to 

abide by mask protocols mandated by the state and company. 

 

2. June or July 2021 Complaint Regarding Low Morale and Promotions

In late June or early July 2021, Descutner raised a concern unrelated to COVID-19 

protocols at a crew meeting. Tr. I, 51. He felt that people should be “signed off” on the Tech 4 

jobs they were doing but not being paid for. Tr. I, 51–52. Descutner believed this was a safety 

concern because people who were in this situation had bad attitudes. Tr. I, 51–52. 

Despite the broad scope cited above regarding Descutner’s complaints related to COVID19 protocols, I cannot agree that his complaints regarding failure to promote miners and resulting 

morale issues meet the broad standard of protected activity in this case. These complaints are 

simply too tangential to rise to the level of a protected activity under the Mine Act. Other than 

his own declarations at hearing, Descutner has failed to proffer any connection between low 

employee morale and a real or perceived risk to the health and safety of miners. 

Accordingly, I find insufficient evidence to conclude that Descutner’s expressed concerns 

in June or July 2021 about low morale and inadequate promotions was protected activity under 

the Mine Act. 

B. Adverse Action Motivated by Protected Activity 

 The Commission has defined “adverse action” as “an action of commission or omission 

by the operator subjecting the affected miner to discipline or a detriment in his employment 

relationship. Sec’y on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1930 (Aug. 

2012). The question of whether an employer’s action qualifies as “adverse” is thus decided on a 

case-by-case basis. Sec’y of Labor ex. rel. Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 

1848 n.2 (Aug. 1984). 

 “Discharge is perhaps the clearest form of adverse action prohibited by the plain 

language of the Mine Act.” Driessen, 20 FMSHRC at 329. It is undisputed that after he first 

complained about the lack of COVID-19 protocol enforcement by NGM in December 2020, 

Descutner was subject to discipline beginning in January 2021. On January 6, 2021, Descutner 

was issued a Tier 1 documented verbal notice for an unexcused absence. Tr. I, Ex. R-D. On July 

20, 2021, Descutner was issued a Tier 1 documented verbal notice for an inappropriate 

interaction with a supervisor. Tr. I, Ex. R-E. On November 2, 2021, Descutner was ultimately 

45 FMSHRC Page 414
terminated from employment with NGM for violating NGM employee standards related to the 

October 19, 2021, loader incident. Tr. I, Ex. R-V. Descutner has clearly been subjected to 

adverse actions dating as far back as January 6, 2021. 

Having established both protected activity and adverse actions related to discipline and 

discharge, Descutner must now demonstrate by a preponderance of evidence that “but for” his 

protected activity he would not have been disciplined or terminated from employment with 

NGM. 

In evaluating whether a causal connection exists between the protected activity and the 

adverse action, the Commission looks to four factors: “(1) the mine operator’s knowledge of the 

protected activity; (2) the mine operator’s hostility or ‘animus’ toward the protected activity; (3) 

the timing of the adverse action in relation to the protected activity; and (4) the mine operator’s 

disparate treatment of the miner.” Cumberland River Coal Co., 712 F.3d 311, 318 (6th Cir. 

2013); see also Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2510–2512 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983). I will examine 

these factors in turn. 

1. Knowledge of Protected Activity 

NGM does not dispute that Descutner expressed concerns to management officials about 

miners failing to follow state and company established COVID-19 protocols on the buses. Tr. I, 

28–37, 40–41, 190–191. As discussed above, I find that Descutner’s expressed concerns related 

to COVID-19 protocol constitute protected activity and that NGM had knowledge of Descutner’s 

protected activity. 

2. Animus or Hostility Toward the Protected Activity 

Descutner argues that every time he engaged in protected activity, he was soon thereafter 

subject to discipline which ultimately led to the termination of his employment. In essence, 

Descutner asserts that the discipline he received and his resulting termination would not have 

occurred had he not engaged in protected activity.5

 Tr. I, 92; Comp. Br. at 2. 

After considering all of the evidence and testimony, I do not agree with Descutner’s 

assertions. As noted above, I found that Descutner did engage in protected activity in December 

2020 and January 2021 when he complained to Dominguez and Strong, respectively, about the 

failure of NGM to enforce state and company-mandated COVID-19 protocols. At each instance, 

Descutner was met with, at most, indifference or lack of motivation by Dominguez and Strong to 

address his complaints. Tr. I, 33–34, 39–41, 47–48. In other words, Descutner failed to proffer 

any evidence beyond his own bare assertions of any animus on the part of NGM toward his 

protected activity as it relates to any of the discipline he received. 

5

 Descutner may not have necessarily raised each point explicitly as stand-alone evidence 

of animus, but I include them here to exhaustively analyze his claim of discrimination. I do not 

find any evidence proffered by Descutner to be preponderant evidence of discriminatory motive 

or animus. 

45 FMSHRC Page 415
The first noted discipline issued to Descutner after he expressed concerns related to 

COVID-19 protocol was a Tier 1 documented verbal notice on January 6, 2021, for an 

unexcused absence. Tr. I, 41–46. Ex. R-D. While Descutner provided a reasonable explanation at 

hearing for his unexcused absence, the fact remains he had exhausted his PTO. Thus, his 

supervisor Strong would not approve Descutner’s absence. Tr. I, 42–44. It is undisputed that 

NGM supervisors have the discretion to approve or disapprove absences. Tr. II, 56–57. 

Descutner testified Strong had previously allowed him days off even though he had exhausted 

his PTO. Tr. I, 44–45. Yet later, on cross examination, Descutner stated he did have PTO prior to 

this incident when he previously asked for and was granted days off. Tr. I, 137–138. Descutner’s 

supervisor Strong did not testify, nor were any leave record exhibits proffered on this issue. The 

record is left unclear as to whether Strong approved some absences after Descutner exhausted his 

PTO and, if so, whether specific circumstances justified the approval of those absences. Whether 

the approved absences in question occurred prior to or after Descutner engaged in protected 

activity is also an unresolved question. 

Descutner invites the Court to draw, from these indeterminate facts, an inference that 

Strong’s actions were marked by hostility. I decline the invitation. The burden of proof is on 

Descutner to demonstrate by a preponderance of evidence, not an inference, that he was denied 

time off because of his protected activity. Descutner has simply failed to meet his burden here as 

it relates to the unexcused absence he received on January 6, 2021. 

 On July 20, 2021, Descutner was issued a Tier 1 documented verbal notice for an 

inappropriate interaction with a supervisor, Terry Krantz. Ex. R-E; Tr. I, 54. Descutner does not 

dispute that the event took place related to his above-referenced concerns regarding the morale of 

workers not being promoted or compensated for getting certified to operate equipment. Tr. I, 51–

52. In addition, he acknowledged that he engaged in the verbal altercation with supervisor 

Krantz. Tr. I, 49–52. However, his testimony expresses a belief that he was provoked into the 

altercation by Krantz and so should not have been disciplined. Tr. I, 53–54. Krantz was also 

disciplined for the altercation with a July 21, 2021, letter of concern. Ex. R-F. Even if provoked 

there are no indicia this event or resulting discipline was in any way related to Descutner’s 

COVID-19-related protocol complaints to Dominguez and Strong from December 2020 or 

January 2021. Descutner has failed to meet his burden of proof that but for his protected activity, 

he would not have been issued this documented verbal notice. 

 Finally, on November 2, 2021, Descutner was ultimately terminated from employment 

for violating NGM employee standards related to both his July 20, 2021, discipline as well the 

October 19, 2021, loader incident. Specifically, with regard to his loader incident he was cited 

with four separate and specific infractions: (1) Unauthorized operation of equipment; (2) Failure 

to use a spotter; (3) Failure to conduct a pre-operations check; and (4) Damaging company 

property. Tr. I, 165, 176–177; Tr. II, 85–86, 120–121, 151. Ex. R-V. Descutner admitted that he 

failed to use a spotter and damaged company property. Tr. I, 67–68, 91–92. However, he 

disputes the other two infractions, testifying that he relied on Sorenson’s statement that the 

loader was a 9-yard loader and that he did, in fact, conduct a pre-operations check of the 

equipment before moving the loader. Tr. I, 64–66, 83–84. The statement Sorenson allegedly 

made to Descutner that the loader was a 9-yarder is disputed by NGM. Sorenson did not testify. 

45 FMSHRC Page 416
However, supervisor Myers, who conducted the loader incident investigation, testified that when 

interviewed, Sorenson stated he told Descutner only that it was a 1700 series loader. Tr. II, 148–

149; Ex. R-PP. Dominguez convincingly testified that, “regardless of what someone tells you, it 

is the miner’s responsibility to know what kind of equipment they are getting on to operate and 

to insure they are signed off or authorized to operate the machinery.” Tr. I, 176. Descutner’s coworker who was present during the loader incident, Garrett DeSart, corroborated Dominguez by 

testifying that a supervisor is not authorized to allow a miner to operate a piece of equipment 

they are not signed off on or certified to operate. Tr. I, 180–181, 230–231. Both DeSart and 

Armstrong testified that if a miner has any question or concern about whether they are authorized 

to operate a piece of equipment, they can simply contact dispatch to confirm their status on the 

piece of equipment they intend to operate. Tr. I, 231; Tr. II, 85. DeSart further testified that if he 

is ever asked by management to operate a piece of equipment he is not authorized to operate, he 

merely explains that to the manager and they find someone else who is signed off on the 

equipment to operate it. Tr. I, 231. I find that even if Sorenson did mistakenly tell Descutner the 

loader in question was a 9-yard loader, it was Descutner’s responsibility to ensure he was 

authorized or signed off on the loader to operate it. This leads to the critical importance of the 

pre-operational examination infraction. 

During the hearing, NGM presented comparison photos showing the differences between 

a 9-yard loader and the 11-yard #80 loader involved in the incident to support their conclusion 

that Descutner did not do a pre-operational inspection of the loader before operating it. Ex. R-S. 

NGM maintains that had he conducted a pre-operational inspection he would have noticed the 

obvious differences between the 11-yard #80 loader and a 9-yard loader he was authorized to 

operate. Tr. I, 11, 174. I find that the photos illustrate no less than seven differences that a casual 

observer could detect in examining both pieces of equipment. Ex. R-S. Four of the differences 

are especially compelling: (1) the difference in the number of steps used to access the loader 

cabs; (2) the control panel or dashboards in each loader; (3) the number of pedals used to operate 

the loaders (11-yard loader #80 has two pedals while 9-yard loaders have three); and (4) the 

width of the buckets on the front of loaders. Ex. R-S. Armstrong testified that during the duediligence meeting with Descutner, when asked if he noticed anything specific about the #80 11-

yard loader, he responded, “I thought it was pretty big, thought the bucket volume was 

different.” Tr. II, 94–95; Ex. R-W. 

At hearing, when asked about how he failed to observe the differences between the 

loaders during his pre-operational inspection, Descutner’s responses were unconvincing given 

the number of obvious differences between the loaders, especially if he had conducted a 

thorough pre-operational inspection as he asserts. Tr. I, 79–83. Specifically, he testified once 

Sorenson confirmed for him it was a 9-yard loader (a point of contention discussed above), he 

was looking for safety defects—not differences. He stated he looked at the tires, but failed to see 

the three-inch tire height difference. Tr. I, 79, 81. Further, “When I was in the cab, I was 

basically doing a brake test and I was, you know, these fuel - - they say check your gauge, but 

your gauges work. Sometimes you just look at them and see if there’s anything reading bad. The 

backup camera was the same, you know, the controls and everything that I used were all in the 

same place.” Tr. I, 80–81. With regard to his failure to notice the different number of pedals and 

the difference in steps leading up into the cab he stated: 

45 FMSHRC Page 417
The thing is I was not operating this piece of equipment for work and that third 

pedal is a D brake. So, what a D brake is if you go into a pile and you want to still 

use your accelerator power you can use that so you don’t – you’re not pushing 

forward on your brakes, you don’t have to kick it in neutral where, you know, 

that’s an extra step. I was only moving it a hundred feet. I had no need for that 

third pedal. All I needed was the brake and the accelerator to move it and get it 

out of the way, and that’s all. And when you’re sitting in those, you can’t really 

just look down and see that pedal. And when you’re climbing in those, you gotta 

focus on 3-pont contact because they’re very tight, there’s not a lot of room, 

there’s a lot of metal. So, you gotta just – you’re focusing on getting in, you’re 

not focused – you’re not standing there or looking down and looking at it. 

Tr. I, 81–82. 

The different-sized buckets, the different number of steps, the different number of 

operational pedals, the different control panels between the 11-yard #80 loader and 9-yard loader 

can clearly be observed in the record comparison photos proffered by NGM. Ex. R-S. Of 

particular note with regard to the pedals, and in direct conflict with Descutner’s above testimony 

on this issue, Dominguez in a straightforward, unequivocal and credible fashion testified: 

So, between the 9-yard and the 11-yard I guess it would be - - to explain it, it’s 

kind of the difference between a manual versus an automatic. The 9-yard loader 

has three pedals. It’s got a gas pedal, a brake pedal, and a declutch brake pedal, 

and the 11-yard just has the throttle pedal and the declutch brake pedal. So, the 

proper procedure for starting the 9-yard loader is putting your feet on the brake 

and the declutch brake pedal to keep the machine from potentially lurching when 

you start it. 

Tr. I, 172. 

I also credit Dominguez’s testimony specifically describing the control panel differences 

between the two loaders: 

A. . . . the 11-yard loader has a digital control spring for the gauges and systems 

in the machine and it also has a back-up camera and back-up screen in it. 

Q. What about the 9-yard? What does it have? 

A. The 9-yard’s got analogue gauges, the switches for the lights and various 

functions are in different spots, and that machine did not have a - - backup 

camera in it. 

Q. When a - - miner goes to move, like the miner goes to move the loader, let’s 

say loader 80 here, the 11-yard, and turns it on, do the gauges come on? 

45 FMSHRC Page 418
A. Yes. So on loader - - on loader – the 9-yard loaders, the gauges do what’s 

called a sweep. The needles will move back and forth. And the 11-yard loader 

is the screen physically comes on like you turn on a television and then it 

shows you your gauges. 

Tr. I, 170–171. 

I credit the photos as well as the supporting testimony of Myers, Dominguez and 

Armstrong over Descutner’s attempted explanation of overlooked differences, and I find that it 

was reasonable for NGM to conclude Descutner failed to do a pre-operational examination. Tr. I, 

169–174; Tr. II, 74–77, 149–150. At a minimum, if he did in fact conduct an examination, it was 

cursory and ineffective. 

Descutner asserts that because he made COVID-19 protocol-related complaints in 

December 2020 and January 2021, management had reason to suspect he was the one who 

complained to MSHA, prompting them to visit the mine in October 2021 and threaten to shut the 

mine down if further complaints were submitted. Comp. Br. at 16. This undisputed and 

unfortunate threat by MSHA to shut down the mine just two weeks prior to Descutner’s 

termination certainly created a scenario of potential animus or hostility toward Descutner. 

However, there is absolutely no indicia management believed it was Descutner who made the 

anonymous complaint that prompted the MSHA site inspection. 

Indeed, both Dominguez and Armstrong—who, along with Myers, recommended that 

Descutner be terminated—credibly testified in a consistent and straightforward fashion that other 

miners had complained about the lack of mask-wearing and social distancing. Tr. I, 219–220. 

Dominguez stated he had no reason to think Descutner called in the October 2021 hazard 

complaint because there was a percentage of, “people on site that were strong about COVID-19 

policies. So, it could have been somebody off our site, it could have been a spouse. It doesn’t 

have to just be the miner.” Tr. I, 193–194. Armstrong testified that NGM received several 

complaints from miners other than Descutner that COVID-19 protocols were not being followed. 

She specifically testified about two different instances between January and October 2021 when 

she investigated complaints that miners were not wearing masks or social distancing as required. 

These were not at the Leeville mine site. Tr. II, 97–100, 126. Further, Armstrong testified on 

cross examination that she heard grumblings at the Leeville mine site regarding masks and social 

distancing during the time NGM made use of light vehicles to transport miners to the mine site. 

Tr. II, 127–128. 

Neither Armstrong nor Myers, who conducted the investigation of Descutner’s loader 

incident and recommended to Dominguez that Descutner be terminated from employment, were 

aware of Descutner’s December 2020 or January 2021 bus-related COVID-19 protocol 

complaints to Dominguez and Strong. Tr. II, 100, 126, 152–153. Dominguez, for his part, 

credibly testified convincingly, unequivocally and without reservation that Descutner’s COVID19 protocol complaints had no bearing on the decision to recommend his removal from 

employment. Tr. I, 218. I find no evidence to support Descutner’s suspicions that his December 

2020 and January 2021 complaints some eight to nine months prior had anything to do with 

MSHA’s October 2021 site inspection, threat to shut the mine down or that NGM management 

45 FMSHRC Page 419
officials Armstrong and Myers involved in recommending his termination had any awareness of 

his prior complaints or, in Dominguez’s case, used those complaints as motivation to terminate 

Descutner. 

Even recognizing MSHA’s inflammatory threats as fodder for potential protected activity 

animus or hostility by NGM, other than through inference, I find no evidence Descutner’s 

protected activity directly or indirectly led to either his discipline or termination from 

employment. Descutner has simply failed to prove by a preponderance of evidence that but for 

his protected activity he would not have been disciplined or terminated. In fact, the 

preponderance of the evidence demonstrates but for his own actions of an inappropriate 

interaction with a supervisor and the loader incident he would still be an NGM employee. 

3. Timing 

Descutner was first disciplined on January 6, 2021, for an unexcused absence within 

weeks of complaining to Dominguez about the lack of mask-wearing and social distancing on the 

transportation buses. Tr. I, 41–45, 58; Ex. R-D. Descutner continued to complain to his 

supervisor Strong in January 2021 and was next disciplined on July 20, 2021, for an 

inappropriate interaction with supervisor Krantz. Tr. I, 48–55, 59–69; Exs. R-E, -G, -H, -I, -J, -K. 

Finally, Descutner was terminated from employment on November 17, 2021, some eight to nine 

months after his last recognized protected activity and within weeks of MSHA threatening to 

shut down the mine if they received anymore COVID-19 protocol related complaints. Given that 

it is undisputed Descutner complained in December 2020 and was first disciplined on January 6, 

2021, I find sufficient evidence to determine via temporal proximity that it was certainly possible 

Descutner’s protected activity played a role in the three documented disciplinary events 

presented in this case. The Commission does not apply “hard and fast criteria in determining 

coincidence in time between protected activity and subsequent adverse action when assessing an 

illegal motive.” Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991). Accordingly, I 

acknowledge and find that a coincidence in time exists in this case. 

4. Disparate Treatment 

Descutner has proffered alleged instances of disparate treatment. “Typical forms of 

disparate treatment are encountered where employees guilty of the same, or more serious, 

offenses than the alleged discriminatee escape the disciplinary fate which befalls the latter.” 

Chacon, 3 FMSHRC at 2512. At hearing, comparator evidence was presented with a focus on 

Descutner’s coworkers Steve Mann and Rowan Gardner. Tr. I, 183–184, 210–212; Tr. II, 102–

104, 123. 

Mann, in the process of moving a haul truck out of the tire shop, did not conduct a preoperational inspection of the vehicle, failed to obtain a spotter and while operating the truck 

damaged a portable toilet. Tr. I, 183. NGM cited him for three infractions putting him at a Tier 3 

final written notice. Tr. I, 183; Ex. R-Z. Mann’s notice of discipline also stated he altered the 

scene of an incident by driving away after making contact with the portable toilet. Ex. R-Z. Both 

Dominguez and Armstrong testified this was not counted as a separate infraction because he 

stopped the haul truck as soon as he realized that he hit the portable toilet. Tr. I, 184; Tr. II, 131–

45 FMSHRC Page 420
133. Mann had no other active discipline in his employment record. Thus, NGM determined the 

single incident with the haul truck did not merit termination. Tr. I, 138; Tr. II, 131, 133. 

Descutner argues Mann should have received a fourth infraction for altering the scene of an 

incident. Comp. Br. at 21. 

Gardner, while operating a haul truck, pulled into and out of a shop without using a 

spotter. While exiting the shop, the truck made contact with the fire door frame causing property 

damage to the door frame. Ex. R-Y. Gardner received a Tier 2 written notice of discipline. Ex. RY. Descutner argues Gardner should have received a Tier 3 final written notice because pulling 

into and out of the shop without a spotter should have been considered two separate infractions. 

Comp. Br. at 22. Armstrong testified that they decided the failure to use a spotter was one 

infraction. Tr. II, 105. 

I credit the testimony of both Dominguez and Armstrong regarding the distinctions in 

discipline for Mann and Armstrong’s comparator testimony regarding Gardner. Their testimony 

was straightforward, consistent and unequivocal. It is important to first note that Descutner had 

prior active discipline in his record while these comparators did not. Second, Descutner’s four 

loader incident infractions were each defined elements or separate and distinct violations of 

NGM’s policies. Exs. R-C, R-L. Descutner, to his credit, admitted to two of the infractions – 

failure to obtain a spotter and that his actions caused property damage. Tr. I, 67–68, 91–92. 

The other two infractions, unauthorized operation of equipment and failure to conduct a 

pre-operations check, are contested here. For the reasons previously stated, I find that it was 

Descutner’s responsibility to ensure he was authorized to move the loader at issue in this case 

and that he failed to conduct an effective or adequate pre-operations check on it. I further find 

that if Descutner, a well-experienced miner, had in fact conducted a viable pre-operation 

inspection of the 11-yard #80 loader he would have recognized it was not a 9-yard loader and 

concluded he could not operate the loader, even for a brief time, to move it out of the way. 

Descutner raises numerous other comparators in his post-hearing brief not referenced or 

presented during the evidentiary presentation of his case. Employee # 73710 is one of those 

comparators. See Comp. Br. at 22. The only reference to employee #73710 during the hearing is 

through Respondent’s exhibit HH which is a chart that lists employees disciplined for not being 

signed off to operate particular equipment. Tr. II, 106; Ex. R-HH. Descutner argues in his brief 

that employee #73710 was issued a Tier 2 written notice even though four separate NGM 

policies were violated. Comp. Br. at 22. Specifically, employee #73710 was written up for: (1) 

directing an employee, “to complete a task on a powder truck that he knew the employee was not 

signed off on or trained on”, (2) directing an employee to operate a truck without clear guidance; 

(3) a lapse in communication; and (4) a “broken window.” The exact description listed in exhibit 

HH follows: 

When acting as a lead man on 6/7/22 (redacted name) directed an employee to 

complete a task on a powder truck that he knew the employee was not signed off 

on or trained on. (Redacted name) directed the employee to operate the powder 

truck without clear guidance and proper documentation needed to operate that 

45 FMSHRC Page 421
piece of equipment. Lapse in communication that occurred on the transfer raise 

near miss that resulted in a broken window. 

Ex. R-HH. 

 There are several critical points to make about this comparison. First and foremost, there 

is no testimony by any witness to explain the number of infractions counted by NGM for 

purposes of issuing the Tier 2 written notice. The written description referenced above could 

easily be interpreted to count “without clear guidance” and a “lapse in communication” as one 

infraction or step instead of two as Descutner argues. Without testimony to address this 

discipline, the Court has no way of assessing how NGM viewed this event or determined the 

number of infractions or steps to assess. Nor can the Court assess any level of credibility to the 

testimony when the testimony does not exist. 

 Second, the Court notes that employee #73710 worked at the Meikle mine site not 

Leeville thus Armstrong, who was the lead NGM management official in charge of Descutner’s 

loader incident discipline determination process, was not involved in employee #73710’s 

discipline. Tr. II, 106–107; Ex. R-HH. In fact, Armstrong testified Descutner’s loader incident 

was the only investigation she had personal experience with that involved the issue of operating 

equipment without being signed off. Ex. R-HH. In that light, Descutner argues the miner who 

actually was directed to drive the powder truck without being signed off as authorized to drive 

the vehicle was not disciplined. Comp. Br. at 26. This is yet another assertion made in 

Descutner’s post-hearing brief without any testimony or evidence in the hearing record for the 

Court to properly weigh the reasons for the actions or lack of disciplinary action on the part of 

NGM. I am confined to weighing the evidence and testimony presented during the evidentiary 

hearing rather than making an inference based on an unexplained outcome raised in a posthearing brief. I cannot and will not infer disparate treatment under such circumstances. 

 Third, it bears repeating that Descutner had not only four infractions related to the loader 

incident but prior active discipline in his record for an inappropriate interaction with a 

supervisor. There are no indicia employee #73710 or any of the other comparators to whom 

Descutner points had prior active discipline in their record. Again, Descutner has the burden of 

proof by a preponderance of evidence. The preponderance of evidence in no way demonstrates 

that employee #73710 was treated more favorably under similar circumstances than was 

Descutner. 

 Specifically, with regard to Descutner’s admitted failure to utilize a spotter during the 

October 2021 loader incident, he asserts he was treated less favorably than his co-worker Desart 

who was working with him at the time of the loader incident. Comp. Br. at 22–23. Desart 

testified he could not recall a specific instance in the six years he has worked at NGM where he 

ever used a spotter but that he may have once or twice. Tr. I, 236. At the time of the loader 

incident, he was operating a scissor lift, a large piece of equipment, without a spotter but was not 

disciplined. Tr. I, 228. However, Descutner, in his own due-diligence meeting about the loader 

incident, when asked whether Desart had a spotter responded: “I don’t think so I think Jeff pulled 

right up in the bay. He was not really in the shop area, he was in the wash bay. A lot of the time 

you do not need one there – he was in [the] entrance of [the] shop.” Ex. R-W. Descutner, by his 

45 FMSHRC Page 422
own words, makes the distinction between his own circumstance and Desart’s, making his posthearing argument on this point misleading and disingenuous. 

 Another comparator Descutner raises with regard to the spotter infraction is employee 

#104914. Comp. Br. at 23. This employee was given a Tier I documented verbal notice for 

causing damage to a fire door while attempting to pull into the shop. Ex. R-II; Tr. II, 125. The 

referenced exhibit states the employee failed to use a spotter. Ex. R-II. However, Armstrong 

testified: . . . [T]echnically he wasn’t going into the shop yet, he was trying to get lined up so that 

then he could call a spotter to get him in, and he ended up doing damage while trying to get lined 

up.” Tr. II, 108. Descutner argues likewise he did not move loader 80 into the shop yet he was 

still disciplined for not having a spotter. Comp. Br. at 23. However, Descutner admitted he did 

not get a spotter and fully believed and understood that NGM’s policy required a spotter while 

moving the Loader 80 within the shop itself. In regard to this issue, he testified at hearing about 

his admission, referring to a written statement he wrote on the loader incident statement form: 

Q. There’s a description, it looks like, that you wrote of the events. Will you read 

the last two lines, please? 

A. Sure. “Did not have a spotter, did not ask for one. My bad.” 

Q. Can you explain to me, please? 

A. Well, I mean, if you screw up, you gotta own it. I mean, you gotta be - - and I 

didn’t have a spotter, so it was my bad. I mean, I do believe that a lot of things 

could have been different, but the thought of mine is that I didn’t make sure I 

had a spotter, so yeah. 

Q. So you accept responsibility for it? 

 

A. I do. 

 

Tr. I, 87; Exs. R-O, R-W. 

 The bottom line is employee #104914 is not a similarly situated comparator because 

Descutner was moving a loader already within the shop itself while #104914 had not yet pulled 

into the shop where a spotter was required. In addition, as noted above, both during the 

investigation of the loader incident as well as at the hearing, Descutner freely admitted he was 

wrong for not engaging a spotter when moving the loader within the shop. Tr. I, 87; Ex. R-W. 

Now, in his post-hearing brief, I am being asked to ignore that admission and determine instead 

that the failure to utilize a spotter should not have been one of the charged infractions that NGM 

found and relied upon to terminate his employment. This I will not do. 

 Descutner’s post-hearing brief goes into great detail about various other comparators 

related to each of the four infractions or steps he was charged with in regard to the loader 

incident. Comp. Br. at 22–27. Post-hearing briefs are for summation and argument only and are 

not considered part of the record as evidence. Just as noted above with employee #73710 there is 

45 FMSHRC Page 423
no record testimony from any witness which addresses any of these additional comparators. 

Accordingly, I find the very limited comparator evidence in the record to be unpersuasive. 

 In sum, Complainant has failed to show by a preponderance of the evidence that he was 

treated less favorably than similarly situated individuals who had not engaged in protected 

activity. Descutner is the only miner who had prior active discipline in his record and was issued 

a Tier 3 level final notice based on four separate and distinct infractions or violations of NGM’s 

employee policies. Interim superintendent Dominguez testified that with Descutner’s prior active 

discipline he could have been terminated with just three additional infractions or violations 

related to the loader incident rather than four that NGM ultimately charged him with. Tr. I, 181–

182. I find not one comparator proffered by Descutner had the same or similar record as his. 

 For the reasons noted above, Descutner has failed by a preponderance of evidence to 

demonstrate he was treated less favorably under similar circumstances than his co-workers who 

did not engage in protected activity. I find that he was not subject to disparate treatment. 

C. Conclusion 

Despite valiant efforts, Descutner has failed to show that his protected activity played any 

part in NGM’s decision to discipline and ultimately terminate him, let alone that but-for his 

protected activity, he would not have been disciplined or removed from employment. 

ORDER 

Accordingly, it is ORDERED that the complaint of discrimination brought by Todd 

Descutner is hereby DISMISSED. 

 /s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

45 FMSHRC Page 424
Distribution: (Electronic and Certified Mail) 

Kristin R.B. White, Fisher & Phillips LLP, 1125 17th Street, Suite 2400, Denver, CO 80202 

kwhite@fisherphillips.com 

Larson A. Welsh, Law Office of Hayes & Welsh, 199 N. Arroyo Grande Boulevard, Suite 200, 

Henderson, NV 89074, lwelsh@lvlaw.com

Debra M. Amens, Amens Law, 432 S. Broad Street, Battle Mountain, NV 89820, 

debra@amenslawfirm.com

45 FMSHRC Page 425

ADMINISTRATIVE LAW JUDGE ORDERS
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges 

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

Washington, D.C. 20004 

May 8, 2023 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. WEVA 2023-0035 

 Petitioner, A.C. No. 46-09569-564845 

v. 

CONSOL MINING COMPANY, LLC, 

 Respondent. 

Mine: Itmann No. 5 

ORDER GRANTING THE SECRETARY OF LABOR’S 

MOTION TO AMEND PETITION 

This case is before me upon the filing of the Secretary of Labor’s Petition for the 

Assessment of Civil Penalty under section 105 of the Federal Mine Safety and Health Act of 

1977 (“Mine Act”), 30 U.S.C. § 815. On March 15, 2023, the parties notified my Law Clerk that 

they settled all but one citation in this docket, leaving only Citation No. 9568130 at issue. 

On March 30, 2023, the Secretary of Labor (“Secretary”) filed a Motion to Amend 

Petition. In the motion, the Secretary requests that I grant her request to modify the negligence 

for Citation No. 9568130. (Mot. at 1.) The citation’s negligence was originally designated as 

“moderate,” and the proposed penalty assessment is $2,194.00. In Citation No. 9568130, 

Inspector Nicholas Christian wrote the following verbatim— 

The roof and ribs where miners are required to work and travel are 

not being maintained on the A-Mains section. When observed 

multiple ribs were found to be broken loose from the mine roof and 

along both sides. These were found at the following locations: 

1) #5 Entry 2 Crosscuts inby Feeder, measured 60” long x 8” 

wide and 12” thick 

2) #4 Entry 2 Crosscuts inby Feeder, measured 60” long x 30” 

wide and 18” thick 

3) 3) #5 Entry 2 Crosscuts inby Feeder, measured 24’ long x 18” 

wide and 24” thick 

4) 4) #4 Entry Feeder Line, measured 8’ long x 29” wide and 14” 

thick 

45 FMSHRC Page 426
All of these ribs were in areas where miners are required to work 

and travel throughout their work shift, therefore exposing them to 

hazards related to falling rock and materials. 

Standard 75.202(a) was cited 7 times in two years at mine 4609569 

(7 to the operator, 0 to a contractor). 

(Mot. at 1–2.) 

 On April 7, 2023, Respondent filed a Response opposing the Secretary’s Motion to 

Amend Petition. 

I. PARTIES’ ARGUMENTS 

In the motion, the Secretary seeks to modify the negligence finding from “moderate” to 

“high.” (Mot. at 2.) In support, the Secretary points to the citation which alleges “obvious and 

extensive cracked and broken ribs in four areas where miners frequently travel and work.” (Mot. 

at 2.) The Secretary also notes that CONSOL has been cited seven times in the previous two 

years under this same standard, including four citations in the month prior to the issuance of the 

current citation, which should have put “the operator on heightened notice to be aware of and 

correct hazardous rib conditions.” (Mot. at 2.) The Secretary asserts that she “does not seek in 

this motion a determination of an appropriate penalty amount.” (Mot. at 3–4.) Rather, via the 

motion, the Secretary seeks to give CONSOL adequate notice of the Secretary’s intent to seek a 

higher civil penalty than initially proposed, so CONSOL will have the “full opportunity to 

develop its case and prepare for hearing.” (Id.) 

CONSOL opposes the Secretary’s motion. (Mot. at 4; Resp. at 1.) CONSOL counters that 

Inspector Christian, who issued the citation in this case, also issued three of the recent citations 

relied upon by the Secretary, and thus, CONSOL asserts, Inspector Christian was aware of the 

previous citations when he originally determined the level of negligence. (Resp. at 2–3.) 

CONSOL notes that counsel for the Secretary has not yet answered written discovery nor taken 

depositions, and thus CONSOL believes the Secretary is filing this motion without all necessary 

information. (Resp. at 2.) CONSOL argues, “it would be unnecessary, inappropriate, and 

premature to overrule the negligence designation of the Inspector at this early state.” Id. Further, 

CONSOL states that no evidence suggests the Secretary interviewed the Inspector or that the 

Inspector altered his opinion as to the level of negligence he originally designated. (Resp. at 3.) 

CONSOL posits that, because the court analyzes negligence de novo after hearing the evidence 

and may modify the Secretary’s citation, the Secretary’s motion is “unnecessary.” Id. 

Lastly, CONSOL argues that the Secretary’s proposed amendment “prejudices the 

Respondent, since it represents a willingness on the part of the Secretary to overrule its 

Inspector, early in the process, without completing written discovery, depositions or considering 

the mitigating factors to be identified by the Respondent.” (Resp. at 4.) CONSOL attaches the 

Secretary’s Interrogatories and Requests for Production of Documents and First Request for 

Admissions to Respondent to its response. (Resp. at 6–10.) CONSOL hypothesizes that the 

45 FMSHRC Page 427
Secretary’s motion is “merely being utilized to exert inappropriate pressure on Respondent for 

exercising rights of discovery and a hearing.” (Resp. at 4.) 

II. PRINCIPLES OF LAW AND ANALYSIS 

The Commission has no specific rule regarding the amendment of pleadings, yet 

Commission Procedural Rule 1(b) states “[o]n any procedural question not regulated by the Act, 

these Procedural Rules, or the Administrative Procedure Act . . . the Commission and its judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure.” 29 C.F.R 

§ 2700.1(b). Federal Rule of Civil Procedure 15(a)(2) states that after more than 21 days after 

filing initial pleadings, a party may amend its pleading “only with the opposing party’s written 

consent, or the court’s leave,” but that “[t]he court should freely give leave when justice so 

requires.” Fed. R. Civ. P. 15(a)(2). 

The Supreme Court has interpreted Rule 15 liberally to allow amendments to pleadings 

unless one of the following factors is present that justifies denial—(a) undue delay; (b) bad faith 

by movant; (c) repeated failure to cure deficiencies by previous amendments; (d) undue 

prejudice to the opposing party; or (e) futility of amendment. Foman v. Davis, 371 U.S. 178, 182 

(1962). The Commission takes a similar view when it comes to amending petitions, especially 

when the amendment does not prejudice the non-moving party in preparing its defenses. See 

Cyprus Empire Corp., 12 FMSHRC 911, 914–16 (May 1990) (finding no abuse of discretion by 

ALJ who permitted Secretary’s prehearing amendment to the citation where the non-moving 

party was not prejudiced by the amendment); see also Wyo. Fuel Co., 14 FMSHRC 1282, 1290 

(Aug. 1992) (“amendments are to be liberally granted unless the moving party has been guilty of 

bad faith, has acted for the purpose of delay, or where the trial of the issue will be unduly 

delayed”); CDK Contracting Co., 23 FMSHRC 783, 784 (July 2001) (ALJ) (“It is well settled 

that administrative pleadings are liberally construed and easily amended, as long as adequate 

notice is provided and there is no prejudice to the opposing party” in granting Secretary’s motion 

to amend to allege violations of two alternative safety standards).

First, in applying the Supreme Court’s test for Rule 15(a), I note that the Secretary’s 

amendment causes no undue delay, because no hearing date had yet been set at the time the 

motion was filed and discovery was not yet complete. Second, CONSOL posits the Secretary 

filed its motion in bad faith “to exert inappropriate pressure on Respondent for exercising rights 

of discovery and a hearing.” (Resp. at 4.) However, I find no indication of bad faith because an 

objective reading of the alleged violation in Citation No. 9568130 could justify a high negligence 

determination. Third, given this is the Secretary’s first proposed amendment in this case, the 

repeated failure to cure deficiencies by previous amendments is inapplicable. Fourth, the 

amendment is not futile because the Secretary could reasonably prove high negligence at trial. 

Fifth, I must determine if granting the motion to amend unduly prejudices Respondent. 

The Commission has held that “[m]ere allegations of potential prejudice or inherent prejudice 

should be rejected,” and the non-moving party must demonstrate more than a danger of prejudice 

to show actual prejudice. Long Branch Energy, 34 FMSHRC 1984, 1992–93 (Aug. 2012). While 

CONSOL argues the proposed amendment would prejudice CONSOL since it is still “early in 

the process,” CONSOL’s argument is exactly contrary to Commission case law. (Resp. at 4.) 

45 FMSHRC Page 428
Here, the Secretary filed her motion to amend on March 30, 2023, before the hearing was 

scheduled. Thereafter, on April 14, 2023, I scheduled this case in consultation with the parties to 

be heard—more than four months later—on August 23, 2023. In determining undue prejudice, 

Commission Administrative Law Judges have found no prejudice for amendments made with 

significantly less time before hearing, including amendments made at hearing. See Higman Sand 

& Gravel, Inc., 18 FMSHRC 951, 958–59 (June 1996) (ALJ) (granting Secretary’s amendment 

and finding no prejudice where amendment was made for the first time at the hearing); Bob Bak 

Constr., 28 FMSHRC 817, 822–23 (Sept. 2006) (ALJ) (granting Secretary’s motion to amend 

pleading to add an alternative standard and finding no prejudice where amendment was first 

made at hearing). Early notice here weighs in favor of finding the amendment nonprejudicial.

Respondent also argues “it is premature to overrule the negligence designation of the 

Inspector.” (Resp. at 2.) Yet this argument is inapposite. The Secretary is allowed to conform her 

pleadings to the evidence. See Cyprus Empire Corp., 12 FMSHRC at 916 (finding that changes 

in the nature of the petitioner’s claims or legal theories are permissible purposes for amendment).

Further, the parties have just begun to actively engage in discovery. (Resp. at 2.) The Secretary’s 

amendment—a change in the degree of negligence alleged in the pleadings— does not change 

the underlying facts and would not appear to require additional discovery. See New NGC, Inc., 

35 FMSHRC 3225 (Sept. 2013) (ALJ) (finding no prejudice in case not yet scheduled for hearing 

and granting motion to amend to allege violations of two alternative safety standards where the 

Secretary relied on facts already stated in the citation). Although the amendment gives notice of 

the intent to argue high negligence, regardless of what the Secretary pleads she must still educe 

evidence at hearing to prove the allegation. 

 Under Federal Rule of Civil Procedure 15(a) and Commission case law, Commission 

Judges may liberally grant amendments to petitions when justice requires. Given the lack of 

prejudice to Respondent, as well as the lengthy notice provided in advance of the hearing date, I 

conclude that allowing the Secretary to amend the pleading is appropriate. 

III. ORDER 

WHEREFORE, it is hereby ORDERED that the Secretary’s Motion to Amend Petition is 

GRANTED. 

 /s/ Alan G. Paez 

Alan G. Paez 

Administrative Law Judge 

45 FMSHRC Page 429
Distribution: (Via Electronic Mail Only) 

J. Matthew McCracken, 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 

(mccracken.john.m@dol.gov) 

James P. McHugh, Esq., Hardy Pence PLLC, P.O. Box 2548, Charleston, WV 25329-2548 

(jmchugh@hardypence.com) 

/gw 

45 FMSHRC Page 430
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9987 / FAX: 202-434-9949 

May 11, 2023 

ORDER DENYING MOTION TO APPROVE SETTLEMENT 

AND STRIKING MATERIAL FROM MOTION 

 On April 25, 2023, a Commission ALJ issued an order noting with disapproval the 

Secretary’s ongoing citation to Mechanicsville Concrete, Inc., 18 FMSHRC 877, 880, 882 (June 

1996), as authority for her removal of the significant and substantial designations from citations 

during the settlement process. See Decision Approving Settlement with Significant Reservations, 

Docket no. PENN 2022-0129, at 4–6 (Apr. 25, 2023) (ALJ) (“Reservations”). Commission 

judges have routinely observed that Mechanicsville, and the also oft-cited American Aggregates 

of Michigan, Inc., 42 FMSHRC 570, 576 (Aug. 2020), cannot support the premise for which they 

have been cited.1

In this instance, though, the Judge correctly pointed out that parties have a duty not to 

misstate case law and that such misconduct has been affirmed as sanctionable under Rule 11 of 

the Federal Rules of Civil Procedure. See Reservations at 6 (citing Teamsters Local No. 579 v. B 

& M Transit, Inc., 882 F.2d 274, 280 (7th Cir. 1989)). 

Following this, I issued an order on May 3 denying a motion to approve settlement, in 

which I said that the continued citation to these cases as authority for the removal of S&S 

designations falls below the minimum standards of practice before the Commission. See Order 

Accepting Appearance and Denying Motion to Approve Settlement, Docket No. WEVA 2023-

0071, at 7 (May 3, 2023) (ALJ). I said that a conference and litigation representative who 

submitted a motion with such citations would be barred from practice before me. Id.

1 See Decision Approving Settlement, Docket No. SE 2023-0046, at 2 (Apr. 24, 2023); 

Order Denying Settlement, Docket No. WEST 2022-0249, at 5 (Nov. 2, 2022) (ALJ); Order 

Denying Settlement, Docket No. WEST 2022-0267 & WEST 2022-0268, at 11 (Oct. 18, 2022) 

(ALJ). 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

CONSOL MINING COMPANY LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

 Docket No. WEVA 2023-0141 

 A.C. No. 46-09569-568207 

 Mine: Itmann No. 5 

45 FMSHRC Page 431
I also said that there might be other consequences. I noted that an attorney should know 

better, and that such misstatements of the law by an attorney would be even more egregious. Id.

at 7 n.5. The supervising attorney for the Labor Department’s CLR’s was included in the 

distribution for the order. 

On May 9, the Secretary filed with the Commission a Motion to Approve Partial 

Settlement, which again included the offending citations to Mechanicsville and American 

Aggregates. See S. Mot. to Approve Partial Settlement, Docket No. WEVA 2023-0141, at 3 

(May 9, 2023). Not only is the recitation of these cases obviously inappropriate; it is impertinent. 

To my knowledge, no Commission judge has agreed with this mischaracterization of the law, 

and I have approved dozens of S&S removals without ever considering either case as authority 

for the removal. Rather than adhering to the clearly-expressed expectations of the Commission’s 

judges, the Secretary has continued to recite this non-sequitur any time an S&S designation is 

proposed for removal in a settlement. 

An attorney for a government agency who misstates the law arrogates the properly 

conferred constitutional authority of others to determine what the law is. Like bridge scour, this 

subtle corrosion wears on the foundation of the rule of law and threatens the integrity of a 

structure upon which the public depends. 

While the full array of sanctions under Rule 11 may not be available as a corrective, I 

have made clear that misleading use of precedent fails to meet the minimum standards of 

practice before the Commission. Its redress begins with a refusal to accept the unacceptable. By 

this order, I therefore STRIKE the reference to the cited cases and the assertions they 

purportedly support.2

Striking material, and even professional sanctions, are appropriate responses to bad faith 

employment of case law. See Collar v. Abalux, Inc., 806 Fed. Appx. 860, 864 (11th Cir. 2020) 

(affirming sanctions where an attorney continually misstated the import of case law); KamdemOuaffo v. Huczko, 810 Fed. Appx. 82, 83 (3d Cir. 2020) (citing Fed. R. Civ. P. 12(f)) (noting that 

impertinent analysis of law is “plainly vulnerable to [] remedial strike”). Striking the impertinent 

matter from the motion is the least severe sanction I could impose in these circumstances. As 

with the Mine Act, those who persist in the discredited and misleading use of precedent should 

reasonably anticipate that their conduct will be deemed knowing or intentional and will be 

addressed with progressive severity until the practice is discontinued. 

2

 The language to be stricken from the motion reads: “Taking into account the uncertainty 

of the outcome of these issues at trial, the Secretary has decided to exercise her discretion to 

modify the gravity to unlikely and not S&S as recognized in Am. Aggregates of Michigan, Inc., 

42 FMSHRC 570, 576-79 (Aug. 2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 

879-80 (June 1996)).” Mot. at 3. 

45 FMSHRC Page 432
The motion to approve settlement is DENIED without reaching the merits. This denial 

will be reconsidered if the parties refile the motion without the noted language, see supra note 2. 

The parties should anticipate that the matters addressed by the motion will be resolved at hearing 

unless and until a motion that meets the standards of practice before the Commission has been 

filed. 

 /s/ Michael G. Young 

Michael G. Young 

Administrative Law Judge 

Distribution: 

Robert S. Wilson, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite 

401, Arlington, VA 22202-5450, wilson.robert.s@dol.gov 

D. Cass Trent, CLR, U.S. Department of Labor, MSHA, 4499 Appalachian Hwy, Pineville, WV 

24874, trent.david@dol.gov 

Jim McHugh, Hardy Pence LLC, 10 Hale Street, 4th Floor, P.O. Box 2548, Charleston, WV 

25329, jmchugh@hardypence.com 

Craig Aaron, CONSOL Energy Inc., 275 Technology Drive, Suite 101, Canonsburg, PA 15317, 

craigaaron@consolenergy.com 

45 FMSHRC Page 433
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges

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

Washington, D.C. 20004 

May 15, 2023 

DAVID A. ROSE FARM & AG SERVICES, CONTEST PROCEEDINGS 

 Contestant, 

 

Docket No. SE 2023-0159-RM 

Order No. 9707523; 04/26/2023

 v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent. 

Docket No. SE 2023-0160-RM 

Citation No. 9707524; 04/26/2023 

Docket No. SE 2023-0161-RM 

Citation No. 9707525; 04/26/2023 

Docket No. SE 2023-0162-RM 

Citation No. 9707526; 04/26/2023 

Ortona Mine 

Mine ID 08-01452 

GARCIA MINING, LLC, CONTEST PROCEEDINGS 

 Contestant, 

 

Docket No. SE 2023-0165-RM 

Citation No. 9707527; 04/26/2023 

 v. 

 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent. 

Docket No. SE 2023-0166-RM 

Citation No. 9707528; 04/26/2023 

Docket No. SE 2023-0167-RM 

Citation No. 9707529; 04/26/2023 

Caloosahatchee Mine 

Mine ID 08-01453 

ORDER DENYING MOTION FOR EXPEDITED HEARING 

AND 

ORDER GRANTING MOTION TO CONSOLIDATE 

The above-docketed contest cases are before me upon the four notices of contest filed by 

David A. Rose Farm & AG Services on April 28, 2023, and three notices of contest filed by 

Garcia Mining, LLC, on May 1, 2023, under section 105 of the Federal Mine Safety and Health 

Act of 1977 (“Mine Act”), 30 U.S.C. § 815. On May 2, 2023, counsel for Contestants filed a 

Motion for Consolidation and Expedited Proceedings. Thereafter, on May 8, 2023, the Secretary 

of Labor filed her Opposition to Motion for Expedited Hearing but did not address the motion to 

consolidate. Before me is one significant and substantial (“S&S”) section 104(g)(1) order for 

45 FMSHRC Page 434
miner training and three non-S&S section 104(a) citations issued to David A. Rose Farm & AG 

Services, as well as three non-S&S section 104(a) citations issued to Garcia Mining, LLC, all of 

which were issued by the same MSHA inspector on April 26, 2023. 

I. MOTION FOR EXPEDITED HEARING 

In the motion, Contestants “request that their cases be consolidated, that all citations and 

orders listed above be vacated based on MSHA’s lack of jurisdiction, or in the alternative, that an 

expedited hearing be granted.” (Mot. at 3.) Contestants assert that an expedited hearing is 

appropriate because they will “suffer irreparable harm” from “financial costs[] and disruption of 

their work activities.” (Mot. at 2–3.) Contestants argue that “expedited proceedings are warranted

because these employers will continue to be inspected and unduly subject to onerous MSHA 

requirements while performing work that is not under that agency’s jurisdiction and which is not 

performed on a permitted mine site, but at the dredging operation of the Corps.” (Mot. at 2.) 

Commission Rules do not provide any guidance on prerequisites for granting a request 

for expedited hearing. See 29 C.F.R. § 2700.52. Under Commission case law, Commission 

Judges are tasked with using “informed discretion” considering all the facts when determining if 

an expedited hearing is appropriate. Wyo. Fuel Co., 14 FMSHRC 1282, 1287 (Aug. 1992). I find 

persuasive cases where Commission Judges have held that to prevail on a request for expedited 

hearing, the moving party bears the “burden of showing extraordinary or unique circumstances 

resulting in continuing harm or hardship.” Consolidation Coal Co., 16 FMSHRC 495, 496 (Feb. 

1994) (ALJ). 

The Commission suggests that a mine currently closed or under a withdrawal order due to 

MSHA action may warrant an expedited hearing. See Wyo Fuel Co., 14 FMSHRC 1282, 1287 

(Aug. 1992) (reversing ALJ’s finding that he did not have discretion to grant an expedited 

hearing on a closure order). Commission Judges have determined that simply the mere threat of 

mine closure or the need for miner training is not an extraordinary or unique circumstance 

warranting an expedited hearing, and I find these cases persuasive. See Pennyrile Energy, LLC, 

38 FMSHRC 1886 (July 2016) (ALJ) (denying contestant’s motion for expedited hearing on an 

order issued for an alleged training violation, because “[m]iner training is not a hardship that 

necessitates an expedited hearing.”); Energy W. Mine Co., 15 FMSHRC 2223, 2223–25 (Oct. 

1993) (ALJ) (continuing threat of closure and the possibility of subsequent withdrawal order 

resulting from a section 104(d)(1) order is insufficient to warrant an expedited hearing). Here, 

Contestants are neither subject to a withdrawal order nor the threat of mine closure. Given the 

facts provided, I determine that the order issued to David A. Rose Farm & AG Services to train 

miners under section 104(g)(1) is not a hardship that necessitates an expedited hearing. And the 

issuance of the other six non-S&S section 104(a) citations is likewise insufficient. 

Other than broad allegations of financial harm and disruption of work, Contestants fail to 

allege specific facts showing extraordinary or unique circumstances resulting in continuing harm 

or hardship if denied an expedited hearing. Contestants allege they were not engaged in mining 

activities or working upon a mine site but rather were working on river-widening and dredging 

which do not come under MSHA jurisdiction, based on an interagency memorandum. (Mot. at 

2.) In essence, Contestants argue that they should be inspected by another federal agency—the 

Occupational Safety and Health Administration (“OSHA”)—rather than MSHA. However, I 

determine that such a jurisdictional issue is not an extraordinary or unique circumstance resulting 

in continuing harm or hardship that warrants an expedited hearing. 

45 FMSHRC Page 435
Consequently, upon considering all the facts in exercising my informed discretion, I 

determine that Contestants allege no extraordinary or unique circumstances that will result in 

continuing harm or hardship. Therefore, I conclude an expedited hearing is not warranted. 

II. MOTION FOR CONSOLIDATION 

Commission Procedural Rule 12 allows Commission Judges to consolidate cases 

involving similar issues. 29 C.F.R. § 2700.12. Commission Procedural Rule 55, 29 C.F.R. 

§ 2700.55, also grants Commission Judges broad powers to issue orders and procedurally 

manage the cases before them. Contestants were issued several citations and an order by the 

same MSHA inspector on the same date, are alleging the same jurisdictional arguments involving 

the same work being done in proximate locations, and share the same counsel. The Secretary has 

not objected to consolidation of these dockets. Given the overlap of these matters and in the 

interest of judicial economy, I conclude that consolidating these dockets is appropriate. 

III. ORDER 

WHEREFORE, it is hereby ORDERED that the motion for an expedited hearing in the 

above-captioned dockets is DENIED. 

It is further ORDERED that Contestants’ Motion for Consolidation is GRANTED. The 

parties are further ORDERED to notify my Law Clerk when they file their respective pleadings 

(petition and answer) in the penalty proceeding, so I may then seek to consolidate the contest and 

penalty cases for hearing and disposition.

/s/ Alan G. Paez 

Alan G. Paez 

Administrative Law Judge 

Distribution: (Via Electronic Mail & U.S. Mail) 

Kristin R. Murphy, Esq. & Kathryn C. Hagerman, Esq., U.S. Department of Labor, 

Office of the Solicitor, 61 Forsyth Street, SW, Room 7T10, Atlanta, GA 30303-8931 

(murphy.kristin.r@dol.gov) 

(hagerman.kathryn.c@dol.gov) 

(atl.fedcourt@dol.gov) 

Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D, 

Beltsville, MD 20705-3332 

(safetylawyer@gmail.com) 

/gw 

45 FMSHRC Page 436
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges 

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

Washington, D.C. 20004 

May 17, 2023 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION, 

 on behalf of PAUL KIRK, 

 Complainant, 

 v. 

CEMEX CONSTRUCTION MATERIALS 

FLORIDA, LLC, 

 Respondent. 

DISCRIMINATION PROCEEDING 

Docket No. SE 2023-0007-DM 

MSHA No. SE MD 2022-06 

Brooksville South Cement Plant 

Mine ID 08-01287 

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION 

This discrimination proceeding is before me pursuant to section 105(c)(2) of the Federal 

Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2). The case is currently 

set for hearing on May 23–24, 2023, in Tampa, Florida. On April 28, 2023, Respondent filed a 

Motion for Summary Decision. Thereafter, on May 3, 2023, the Secretary filed a Motion to 

Extend Deadline to Respond to Respondent’s Motion for Summary Decision, which I granted, 

briefly extending the deadline to file a response to May 15, 2023. On May 12, 2023, Respondent 

filed a Supplement to Respondent’s Motion for Summary Decision stating that Paul Kirk 

voluntarily resigned his employment from CEMEX that same day due to his disability retirement 

through the U.S. Department of Veterans Affairs. (Suppl. at 1.) CEMEX asserts that the 

requested relief in this matter is now moot. (Id.) The Secretary timely filed a response—which 

she entitles Response in Opposition to Respondent’s Motion for Partial Summary Decision—on 

May 15, 2023. 

I. PROCEDURAL AND FACTUAL BACKGROUND 

A. Kirk’s Complaint 

Respondent Cemex Construction Materials Florida, LLC operates the Brooksville South 

Cement Plant, an aboveground mine in Hernando County, Florida that mines materials to 

produce cement which uses a kiln in the process. (Compl. at 2.) On October 12, 2022, the 

Secretary of Labor on behalf of Paul Kirk filed a complaint alleging CEMEX Construction 

engaged in discrimination and interference in violation of 105(c)(1) of the Mine Act. (Compl. at 

1.) On May 25, 2022, Kirk voiced concerns to his supervisors that hot dust was spilling from the 

“dog box” associated with the kiln. (Compl. at 2–3.) First, Kirk texted David Singer with his 

concerns, followed by Marcello Leal, Chris Walls, and Carlos Uruchurtu. (Compl. at 3.) Kirk 

and Carlos Uruchurtu exchanged text messages about the kiln, and Kirk understood from the 

messages that the kiln would be shut down. (Compl. at 3.) The Secretary alleges that Kirk was 

informed that the kiln was still operating at the morning meeting the next day. (Compl. at 3.) 

Kirk expressed his concerns about the kiln at a meeting between Uruchurtu and two contractors. 

(Compl. at 3.) Uruchurtu told Kirk to leave the meeting, but Kirk did not do so due to the 

45 FMSHRC Page 437
“urgency of the issue.” (Compl. at 3.) The kiln was shut down later in the morning on May 26, 

2022, and restarted on Saturday, May 28, 2022. (Compl. at 3.) 

 During the night of May 26, 2022, MSHA received a complaint about hot dust leaking 

from the kiln and the safety hazards posed by hot dust spilling out while a miner is operating the 

loader. (Compl. at 4.) MSHA visited the plant on May 29, 2022, and issued two citations for the 

“excessive hot dust filling the dog box and miners being subjected to injury while attempting to 

remove the dust using the front-end loader” and because “barricades were not used to warn of the 

high temperature dust, subjecting miners accessing the area to severe burn injuries.” (Compl. at 

4.) MSHA received two additional complaints regarding the kiln on the early morning of May 

30, 2022. The MSHA inspector viewed the kiln and observed “excessive hot dust in the dog box 

being removed by workers using the front-end loader, exposing them to hazardous conditions,” 

which resulted in an additional citation. (Compl. at 4.) The Secretary alleges that CEMEX 

management “suspected that Kirk was involved with the MSHA complaints.” (Compl. at 4.) 

 The Secretary alleges that CEMEX discriminated against Kirk in violation of 30 U.S.C. 

Section 815(c) “for his protected activity of raising safety concerns to Uruchurtu by issuing a 

verbal warning regarding alleged insubordination,” “based on its beliefs he engaged in the 

protected activity of making safety complaints to MSHA by issuing a verbal warning regarding 

alleged insubordination,” and “interfered with Kirk’s statutorily protected right to raise safety 

concerns with MSHA and Plant management by issuing a verbal warning regarding alleged 

insubordination.” (Compl. at 5.) Therefore, the Secretary requests declaratory judgements that 

CEMEX unlawfully discriminated against Kirk and interfered with his statutorily protected 

rights. (Compl. at 5.) The Secretary also requests orders requiring all members of CEMEX’s 

management team to participate in a training course on protected rights and an order assessing an 

appropriate civil monetary penalty. (Compl. at 6.) 

B. Respondent’s Motion for Summary Decision and the Secretary’s Response 

In its Motion for Summary Decision CEMEX argues, among other things, primarily: (1) 

Complainant did not engage in good faith protected activity, but even if he did, (2) the adverse 

action imposed by CEMEX was not motivated in any part by Kirk’s engagement in protected 

activity. (Mot. Mem. at 5.) CEMEX attaches several documents including portions of deposition 

testimony from Kirk, as well as Uruchurtu. The Secretary in her Response in Opposition to 

Respondent’s Motion for Partial Summary Decision argues many disputed material facts exist 

and that Respondent’s motion should be construed as a partial motion for summary decision 

because Respondent failed to move for a decision on, or even meaningfully address, the 

interference claim. (Sec’y Resp. at 1–2.) The Secretary further asserts many of CEMEX’s factual 

assertions lack any citation to supporting record evidence in violation of 29 C.F.R. § 2700.67(c). 

The Secretary attaches several documents including the deposition of Carlos Uruchurtu, the 

deposition of Kirk, Respondent’s answers to Interrogatories, and copies of the original citations. 

 

45 FMSHRC Page 438
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 Act1

 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., 

1

 “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). 

45 FMSHRC Page 439
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. 

III. DISCUSSION AND ANALYSIS 

A. Disputed Facts for Protected Activity Under Section 105(c) 

The parties dispute material facts related to Kirk’s discrimination claim. In particular, the 

parties dispute facts related to the condition of the kiln, notification of the shutdown of the kiln, 

and Kirk’s knowledge of the kiln’s condition and purported shutdown. Respondent CEMEX 

asserts that on May 26, 2023, the kiln’s “condition[] vastly improved that morning.” (Mot. Mem. 

at 11.) Yet other evidence, including Uruchurtu’s deposition, suggest part of the kiln failed that 

morning causing dust to leak from the dog box. (Mot. Mem. at 3; Sec’y Ex. A Uruchurtu Dep. 

54:20–23; Sec’y Ex. B Kirk Dep. 62:21–63:7.) Therefore, the condition of the kiln on the 

morning of May 26, 2023, is disputed. This is material because the kiln’s condition may have 

affected Kirk’s understanding of the urgency and degree of the alleged safety hazard. 

In its motion CEMEX also argues that plant management was aware of the issues with 

the kiln and actively addressed the issue. (Mot. Mem. at 11.) Yet the Secretary points to Kirk’s 

deposition testimony that suggests Ekstrom was trying to avoid shutting down the kiln. (Sec’y 

Resp. at 5; Sec’y Ex. B Kirk Dep. 64:14–18.) Therefore, material facts surrounding CEMEX 

management’s attitude toward the kiln’s shut-down and the steps management was taking to shut 

down the kiln are in dispute. 

CEMEX argues that “Uruchurtu instructed the production manager, Marcelo Leal, to 

direct Jacob Ekstrom, the Superintendent of the K-1 kiln, to begin the shut-down process” at 

6:42 a.m. on May 26. (Mot. Mem. at 6; Mot. Ex. 3 at CEMEX000497.) Yet, the Secretary points 

to a text message that states, “stop the kiln as soon as you are ready,” and notes the lack of 

evidence that notification to shut down the kiln was given at this time. (Sec’y Resp. at 3.) 

Therefore, the timing, manner, and occurrence of the instruction to shut down the kiln are in 

dispute, which are material facts in this case. 

CEMEX claims that Kirk made the complaints after being told by Ekstrom that the order 

to shut down the kiln had been given. (Mot. Mem. at 5–7; Sec’y Resp. at 5–6; see Mot. Ex. 4

Kirk Dep. 62:14–18.) Yet the Secretary alleges and points to evidence suggesting Kirk did not 

know the order to shut down the kiln had been given. (Sec’y Resp. at 5–6; Sec’y Ex. B Kirk Dep. 

62:14–18.) Therefore, Kirk’s knowledge regarding the kiln’s shut down is in dispute, which is 

material in this case.

CEMEX alleges Uruchurtu explained to Kirk in their meeting after the safety complaints 

were made, that Uruchurtu was working to troubleshoot the issue with the kiln and the specific 

steps Uruchurtu had taken to resolve the issue; yet, the Secretary disputes this fact, and 

Uruchurtu, in his deposition, could not remember saying this and did not understand what Kirk 

45 FMSHRC Page 440
was saying when Kirk interrupted his meeting. (Mot. Ex. 3 at CEMEX000579–580; Mot. Mem. 

at 7; Sec’y Ex. A Uruchurtu Dep. 82:15–16, 98:13–18; Sec’y Resp. at 6.) 

CEMEX also argues that Kirk did not raise the “issue of an immediate danger to the 

employees of the plant” due to the kiln at the shift-change meeting. (Mot. Mem. at 5.) However, 

Kirk indicates in his deposition testimony “we talked about the kiln and the dusting” and “[t]hat 

they were still running, dusting and all that stuff” and further stated “[y]ou know, there’s a lot of 

huge safety concerns.” Therefore, whether and to what extent the safety of the kiln may have 

been discussed at the shift-change meeting is a material fact in dispute. (Sec’y Ex. B Kirk Dep. 

62:13–24, 63:1–7; Sec’y Resp. at 5.) 

B. Kirk’s Claim is not Moot 

CEMEX filed a Supplement to Respondent’s Motion for Summary Decision reporting 

that Kirk voluntarily resigned his employment with CEMEX, effective May 12, 2023. CEMEX 

asserts that due to Kirk’s resignation, he “no longer [has] a legally cognizable interest in the 

outcome,” making this matter moot. (Suppl. at 1); Mid-Continent Res., Inc., 12 FMSHRC 949 

(May 1990). However, the Secretary notes, “[s]hould Kirk’s disability status change or he seek 

further employment for any reason, removal of the discipline from his file and/or a neutral 

employment reference would provide a benefit for future job applications.” (Sec’y Resp. at 16–

17.) CEMEX’s citation to the Administrative Law Judge case Sonney v. Alamo Cement Company

is misplaced because the miner there “ha[d] already received assurances that his personnel 

record ha[d] been cleansed and that Alamo [would] not provide negative employment 

recommendations”). Sonney v. Alamo Cement Co., Ltd., 29 FMSHRC 310, 315 (2007) (ALJ). 

That is not the case here with Kirk and CEMEX. 

C. Interference Claim 

 The Secretary notes that CEMEX does not meaningfully address Complainant’s 

interference claim in its motion. Thus, the Secretary argues that, if I were to grant CEMEX’s 

motion, I should construe it only as a motion for partial summary decision because the 

interference claim still survives. (Sec’y Resp. at 16–17.) Because Respondent bears the burden of 

proving there are no material facts in dispute, I cannot rule in favor of CEMEX on the 

interference claim, given that it did not argue explicitly regarding the interference claim. 

Moreover, I determine many of the disputed material facts discussed above are also relevant to 

the interference claim and, therefore, summary decision on this issue is not appropriate. 

 

45 FMSHRC Page 441
D. Conclusion 

When viewed in the light most favorable to the Secretary, I therefore determine that 

several genuine issues of material fact exist in this section 105(c) proceeding. Given this 

determination, I conclude that CEMEX is not entitled to summary decision as a matter of law 

under Commission Procedural Rule 67(b). 29 C.F.R. § 2700.67(b).

IV. ORDER 

Respondent’s Motion for Summary Decision is DENIED. The hearing will be held as 

previously scheduled on May 23–24, 2023, in Tampa, Florida. 

 /s/ Alan G. Paez 

Alan G. Paez 

Administrative Law Judge 

(202) 233-3889 

Distribution: (Via U.S. Mail and Electronic Mail) 

Rachel M. Bishop, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 

61 Forsyth Street S.W. Room 7T10, Atlanta, GA 30303-8816 

(bishop.rachel.m@dol.gov) 

(abreu.jean.c@dol.gov) 

(atl.fedcourt@dol.gov) 

Michael T. Cimino, Esq. & Benjamin J. Wilson, Esq., Jackson Kelly PLLC, P.O. Box 553, 

Charleston, WV 25322-0553 

(mcimino@jacksonkelly.com) 

(benjamin.wilson@jacksonkelly.com) 

/gw 

45 FMSHRC Page 442
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 Pennsylvania Ave. NW, Suite 520N 

TELEPHONE: (202)434-9958 / FAX: (202)434-9949 

May 31, 2023 

 

ORDER OF TEMPORARY REINSTATEMENT

Before: Judge Sullivan 

 This case is before me upon an Application for Temporary Reinstatement filed by the 

Secretary of Labor pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (“Mine Act”), and 29 C.F.R. § 2700.45. On May 15, 2023, the 

Secretary filed the application on behalf of miner Larry Anderson (“Complainant”) seeking his 

reinstatement to his former position of Safety and Compliance Manager at the Silver Bell mine 

and other mines operated by Kalamazoo Materials, Inc., Rock Pros USA LLC, and any 

successors in interest. The certificate of service states that the application was served on 

Respondents by e-mail that same day. The application also satisfies the other procedural 

requirements of Commission Rule 45(b) in that, among other things, it timely “states the 

Secretary’s finding that the miner’s discrimination complaint was not frivolously brought[,] 

accompanied by an affidavit setting forth the Secretary’s reasons supporting his finding[,] and 

includes a copy of the miner’s complaint to the Secretary . . . .” 29 C.F.R. § 2700.45(b).1

 On May 25, 2023, the Respondents made a timely request for hearing in accordance 

with Commission Rule 45(c). Upon filing this request, the Respondents conveyed to the Court 

that the parties were engaged in good faith efforts to settle the temporary reinstatement matter. 

On May 26, 2023, the Secretary filed a Settlement Agreement and Joint Motion for Temporary 

Reinstatement. The terms of the agreement provide for the Complainant to receive economic 

reinstatement with Kalamazoo in lieu of immediately returning to work for Respondents. 

1

 The Discrimination Complaint (“Complaint”) filed with the Secretary’s Mine Safety 

and Health Administration by the Complainant is dated February 1, 2023, thus well within 60 

days of the Complainant’s January 23 termination of employment. See 30 U.S.C. § 815(c)(2). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of LARRY ANDERSON, 

 Complainant, 

 v. 

KALAMAZOO MATERIALS, INC., and 

 ROCK PROS USA LLC, and any and all 

 successors in interest, 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. WEST 2023-0238 

MSHA Case No. RM-MD-2023-05 

Mine: Silver Bell 

Mine ID: 02-02848 

45 FMSHRC Page 443
Section 105(c)(1) of the Mine Act provides that “[n]o person shall discharge . . . any 

miner . . . because such miner . . . has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator . . . of an alleged danger or safety or health violation 

in a . . . mine . . . .” 30 U.S.C. § 815(c)(1). In the application, as supported by his investigator’s 

affidavit (Exhibit B thereto), the following allegations of the Secretary establish the Complaint as 

having been not frivolously brought under sections 105(c)(1) and (2): 

(1) Complainant began work as a safety and compliance official for Kalamazoo Materials in 

June 2022. 

(2) In January 2023, Complainant made safety complaints to Respondents’ management. The 

Complaint references several emails with safety complaints that were sent to a Safety 

Manager, who was listed in the Complaint as responsible for discriminatory action. 

(3) Complainant also notified management of his selection to serve as a miners’ 

representative at several of the Respondents’ mines. The Complaint alleges that 

management told Complainant to “not speak with miners about their rights.” Application 

for Temporary Reinstatement (“App.”), Ex. A at 3. 

(4) Complainant was “discriminatorily terminated” on January 23, 2023. App. at 4. 

I agree with the Secretary that the Complaint was “not frivolously brought” in this 

instance. See Jim Walters Res., Inc. v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990) (relying 

upon Mine Act legislative history and the Supreme Court’s treatment of a similar whistleblower 

protection provision to conclude that the “not frivolously brought” standard is the equivalent of a 

“reasonable cause to believe” standard and is met when a miner’s “complaint appears to have 

merit”). 

In addition, I have reviewed the terms of the Agreement and find that they do not appear 

to reduce Complainant’s rights under section 105(c)(2). The Agreement shall remain on file in 

this proceeding. I reach no conclusion beyond that regarding the merits of the Complaint. 

Finally, Section 105(c)(3) of the Act directs the Secretary to notify a complainant 

whether a section 105(c) violation occurred within 90 days of the filing of a complaint, which in 

this instance would have been no later than Tuesday, May 2, 2023. See 30 U.S.C. § 815(c)(3). 

The Secretary shall provide an update regarding the status of the Secretary’s investigation of the 

Complaint within seven days. 

 

45 FMSHRC Page 444
WHEREFORE, the Application is GRANTED, and it is ORDERED that reinstatement shall 

remain in effect until such time that the Secretary provides notification that he will not be 

bringing a discrimination case in chief on behalf of the Complainant, or such a case is brought 

and there is a final determination on it by decision, approval of settlement, or other order of this 

court or the Commission. I retain jurisdiction over this temporary reinstatement proceeding for 

such purposes as are necessary, as provided by 29 C.F.R. § 2700.45(e)(4). 

WHEREFORE, the Secretary is further ORDERED to provide an update regarding the status 

of the Secretary’s investigation of the Complaint no later than seven days from the date of this 

Order. 

 /s/ John T. Sullivan 

John T. Sullivan 

 Administrative Law Judge 

Distribution (Electronic Mail): 

Andrew M. Katz, U.S. Department of Labor, Office of the Solicitor, 350 South Figueroa Street, 

Suite 370, Los Angeles, CA 90071-1202, Katz.Andrew.M@dol.gov 

Dana M. Svendsen, Perkins Coie LLP, 1900 Sixteenth Street, Suite 1400, Denver, CO 80202, 

(dsvendsen@perkinscoie.com) 

45 FMSHRC Page 445