**FEDERAL MINESAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON, D.C.20004-1710**

Telephone No.: 202-434-9933

Telecopier No.:202-434-9949

 

May 19, 2020
| SECRETARY  OF LABOR, MINE  SAFETY & HEALTH ADMINISTRATION,

                            Petitioner,

 

 

                        v.

 

 

SOLAR  SOURCES MINING, LLC

                Respondent.

                                                                 |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. LAKE 2017-0099

AC  No. 12-02374-424654

 

 

 

 

 

Mine:  Shamrock Mine

Mine  ID: 12-02374

  |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**DECISION ONREMAND**

 

Before:  Judge William B. Moran 

The above-captioned matter is before theCourt on remand from the Commission.    The docket involves a Petition forAssessment of a Civil Penalty pursuant to section 105(d)    of the Federal MineSafety and Health Act of 1977, 30 U.S.C.§ 815(d), (“Mine Act”). The Courtissued its original Decision and Order on March 29, 2018. Thereafter theCommission granted review on May 8, 2018 and a Commission majority[1]issued its decision remanding this matter to the Court on March 12, 2020. TheMajority affirmed the Court’s previous decision in this matter regarding thefact of violation, its gravity, and negligence, but remanded the case for thisCourt to further elaborate on the bases for assessing a penalty. *Solar Sources,Inc.*, 42 FMSHRC ___, slip op., No. LAKE 2017-0099, 2020 WL 1890528 (March12, 2020) (hereinafter “Majority Decision” or “Remand”). 

 

            TheCommission majority determined that this Court “clearly failed to followCommission precedent and fell far short of making adequate findings,” in thatthe Court failed to make adequate findings for each of the penalty criteria insection 110(i) and therefor remanded this matter for the Court to “complete[its] penalty criteria findings and reassess a penalty.” *SolarSources*, 42 FMSHRC ___, slip op. at 1-2, No.LAKE 2017-0099, 2020 WL 1890528 at *1.[2]

 

**TheCommission Majority’s Decision Upon Remand**

** **

Toincrease the likelihood that the Court’s decision upon remand will meet theMajority’s remand instructions, the Court will recount the particulars of theremand decision. As alluded to above, the Majority in its remand directed theCourt: 

 

tomakespecificfindingsregardingtheoperator'shistoryofviolationsandthe operator'sactionsrelatedtoattemptingtoachieverapidcomplianceafternotification ofa violation, ... [and then] reviewth[o]sefactorstakingintoaccountthefindingsontheotherpenaltycriteria. TheJudgemustthenconsiderhispenaltycriteriafindingsalongwiththerecordevidence,reassessacivilpenalty,andexplainhisrationaleinanindependentand reasonedmanner.  

 

*Id.*. at 8, *6.

** **

****The Respondent,in its challenge to the Court’s initial decision, contended that****the Court“failed to make adequate findings for each of the penalty criteria in section110(i), 30 U.S.C. §830(i), of the Mine Act as part of his analysis.” *Id.*at 1, *1.

** **

            Asthe Majority determined: 

 

[t]heJudgeconcludedthattheviolationwasS&S,theresultofhighnegligence,andanunwarrantablefailuretocomplywiththesafetystandard. TheSecretaryhad proposeda$68,300civilpenaltythroughhisspecialassessmentprotocolat30C.F.R.§100.5.TheJudgeassessedtheexactsameamountastheproposedpenalty,findingittobe“consistentwiththerecordandtheevidenceintroducedathearing.” *Id.*at 495.

*Id.*at 2, *2 (citing *Solar Sources*, 40 FMSHRC 462 (Mar. 29, 2018) (ALJ)). However,the majority noted “Commission Procedural Rule 30(a) instructs Judges thattheir decisions ‘shall contain findings of fact and conclusions of law on eachof the statutory criteria and an order requiring that the penalty be paid.’” *Id.*at n. 5 (citing 29 C.F.R. § 2700.30(a)).

            TheCommission did not take issue with this Court’s analysis for two of the sixstatutory penalty factors, stating that, “it isobviousthattheJudgelimitedhisanalysisdiscussiontoonly twoofsixstatutoryfactorsinthetext.”*Id.*at 7, *5. As to those two factors, the Commission referenced theCourt’s decision recounting that the Court “foundthattheviolationidentifiedinCitationNo. 9102704wasestablishedandthattheInspector'sevaluationofthe gravityandnegligenceandhisfindingofunwarrantablefailureand significantandsubstantialweredemonstrated[and] thatnocognizable mitigationwasadvanced ...” *Id.*

            Inlight of those expressions, the majority directedthat:

 

theJudge []makespecificfindingsregardingtheoperator'shistoryofviolationsandtheoperator'sactionsrelatedtoattemptingtoachieverapidcomplianceafternotification ofa violation,consistentwiththerequirementsofCommissionProceduralRule30(a)andsection110(i)oftheMineAct. [The Judge]mustreviewthesefactorstakingintoaccountthefindingsontheotherpenaltycriteria. TheJudgemustthenconsiderhispenaltycriteriafindingsalongwiththerecordevidence,reassessacivilpenalty,andexplainhisrationaleinanindependentand reasonedmanner. 

 

*Id.*at 8, *6. 

** **

         Themajority then turned to Part B of its decision, which has as its heading “TheJudge Need Not Reconcile the Differences Between His Penalty Analysis and theSecretary's Narrative Findings for a Special Assessment.” *Id*. at 9, *7. Addressingone of the specifics in Solar Sources’ appeal before the Commission, themajority noted that the Respondent identified: 

 

discrepanciesbetween the Judge's findings and the Secretary's allegations.  Specifically,the Secretary alleged that the operator knew or should have known of the poorcondition of the berms because a certified person had performed an on-shiftexamination prior to the accident. *Notably, the order alleging an inadequateon-shift examination was vacated by the Judge.*Furthermore, the Secretary'snarrative alleged that the berms were constructed of slurry while the Judgefound that, originally, the berms had been constructed of shot rock. 

 

*Id.*(emphasis added).

Regardingthe majority’s remark that it found it notable that the order alleging aninadequate on-shift examination was vacated by the Court, that statement by themajority marks   a significant misunderstanding of the Court’s March 29, 2018decision. Because it is important, the Court needs to clarify the misperceptionit created for the majority in their remand decision. It is true that the Courtfound that the berm was *originally*constructed of shot rock, but thatonly tells part of the story, because, over time, as the operator was dumpingits soupy slurry at the dumping site and because it failed utterly to monitorthe effect of that practice on the soundness of the berm dump site, it alteredthe original soundness of the dump site and berm, resulting in its collapse.[3]

 

 

 

            Therealso appears to be a second noteworthy misperception concerning thesignificance of the Court’s determination to vacate the alleged sister violationin this matter, a section 104(d)(1) order, for an inadequate on-shiftexamination. *To be clear*, the Respondent escaped responsibility for thatorder *only* because it had the whole shift on the day of the accident tocomplete its on shift exam. The berm collapsed before the shift ended. Thetestimony *at the hearing*from pit foreman Keith Lutgring was that heonly *glanced* at the berm that day, and that his glance was *before theshift began.*There was no *testimony* to refute the claim that,whatever Lutgring actually did that morning, it was *before* the shiftstarted. The cited standard requires an inspection “[a]t least once *during*each working shift.” And, *for that reason only*, Solar Sources escapedliability for that order. 

 

            However,it should not go without mention that a notably different story was presentedby Solar Sources, *shortly after* the truck toppled down the slope fromthe berm’s collapse. In a letter to MSHA dated July 11, 2016, *that is tosay, less than 2 weeks after the event occurred,*Solar Sources told MSHA“[t]he mine foreman acknowledged he observed the berm in place **when he wasperforming his inspection** prior to the gob truck dumping in this area... **[t]heforeman indicated that he examined the berm** and that it was in place.” Ex.P. 8. Had the Secretary amended the complaint to allege that there had been aninadequate on shift exam on the *previous* working shift, based on theevidence of record, which evidence supports a finding that the deplorablecondition of the berm could not have occurred so suddenly, the Court wouldsurely have upheld that Order. The Commission case law is quite clear: theSecretary could have moved for such an amendment of that Order. *See, e.g.,Cyprus Empire Corp*., 12 FMSHRC 911, 916 (May 1990); *El Paso RockQuarries, Inc*., 3 FMSHRC 35, 38 (Jan. 1981) and *Sunbelt Rentals*, *Inc.*,38 FMSHRC 1619, 1631, (July 2016). The Court did not feel it was its place tosuggest during the hearing that the Secretary seek an amendment of thecomplaint to conform to the evidence. 

 

         Returningto the majority’s statement, above, that the Court need not reconciledifferences between its penalty analysis and the Secretary’ narrative findingsfor a Special Assessment, the majority expressed in Part B of its remand thatthere was not error in the Court’s “failing to reconcile any differencesbetween his findings and the Secretary's pre-hearing allegations, but instead[it] was in failing to exercise his own responsibility to conduct anindependent and reasoned analysis, using *the record evidence.*” *SolarSources*, 42 FMSHRC ___, slip op. at 9,2020WL 1890528 at *7 (emphasis in original).

* *

         BothParts B and C of the majority’s opinion speak to its view of SpecialAssessments in the context of the judge’s penalty analysis. Both Parts advisethat the judge need not reconcile differences between his original *penaltyanalysis* and the Secretary’s Special Assessment narrative findings, persubsection B, nor, as set forth in subsection C, with the judge’s *reassessedpenalty* and the Secretary’s proposed penalty amount under his SpecialAssessment procedure.[4]

 

         Forpurposes of the Court’s duty “to complete [its] penalty criteria findings and reassessa penalty,” it is unnecessary to recount in great detail the majority’sexpressions on these two, related, topics. *Id.*at 1-2, *1. This isbecause, for Part C in particular, the wealth of the majority’s expressions onthese topics address its view that the United States Court of Appeals for theDistrict of Columbia Circuit mused[5]that the “Commission’s case law ‘*seems to point in two directions*’regarding Commission Judges’ use of the Secretary's penalty proposal as anysort of reference point.” *Id.* at 10, *7 (emphasis in original).  Forthat reason, the majority spoke to the D.C. Circuit’s “apparent impression of aninconsistency in Commission law [which they believe] demands promptclarification.” *Id.*, *8.**The majority then discusses from page10, the beginning of subsection C of its decision, through the end of theirdecision at page 21, an extensive expression of their views on this.[6]

** **

            Themajority continued that 

 

theJudge limited his analysis discussion to only two of six statutory factors inthe text [and they noted] [i]n a footnote, he summarily discharged the ‘otherstatutory factors’ as ‘duly considered.’ This abrupt footnote is nodemonstration that he considered all criteria sufficiently. In addition to theoverall short shrift given these statutory criteria, the Judge's decision wastotally deficient of any evaluation of “the operator's history of previousviolations’ and ‘the demonstrated good faith of the [operator] charged inattempting to achieve rapid compliance after notification of a violation.” *See*30 U.S.C. § 820(i); 29 C.F.R. § 2700.30(a). The

 

 

 

recordcontains highly relevant evidence regarding the operator's violation history. Yet,the Judge did not engage in any analysis and did not make any finding on thepossible significance of such evidence. The Judge merely references GovernmentExhibit P-2. 

* *

*SolarSources*, 42 FMSHRC ___, slip op. at 7,2020WL 1890528 at *5-6.

 

“On remand, the Judgeis directed to independently reassess a penalty in accordance with *AmCoal I.*The Judge must then explain the rationale for his penalty assessment using thestatutory penalty criteria and the record evidence.” *Id.* at 10, *7. TheCommission went on to state that “the findings and explanations relating to apenalty assessment do not have to be exhaustive, they must at least provide theCommission with a basis for determining whether the judge complied with the requirementto consider and make findings concerning the section 110(i) penalty criteria.” *Id.*at 10, n. 14, *7.

As described below, in the Findings of Fact andDiscussion section of this decision upon remand, providing findings for each ofthe penalty criteria in section 110(i), the Court will make the requiredindependent and reasoned analysis using the record evidence. 

 

Drawing a contrast betweenregular assessments and Special Assessments, the majority instructed that whenthe penalty assessed by the Judge substantially diverges from a proposed, *regularlyassessed*penalty, the Commission *requires*Judges to provide anexplanation for the divergence to avoid an appearance of arbitrariness inpenalty assessments. *Id.*at 13, *10. 

The majority’s view ofand approach toward Special Assessments is quite distinct.  They described the SpecialAssessment process as one which works by “adding points to the negligence andgravity elements, without accounting for other statutory penalty criteria orconsidering the specific facts of the violation.” *Id.*at 14, *11. Consideringthe Special Assessment process to be “opaque,” the majority expressed thatthere is no requirement for a judge to explain divergences from suchassessments.  *Id.* at 19- 20, *15.  

Where a SpecialAssessment is sought, “the Judge must base a decision only upon a completereview of the evidence pertaining to each of the penalty factors, a weighing ofthose factors in the context of the facts, and a final resolution based onlyupon such careful and fully explained review.” *Id.*at 18, *13.  

However, the Commissiondid not assert that a Special Assessment is inherently defective, expresslystating that “[o]f course, it is entirely appropriate for a Judge to fullyconsider the agency's proposal to treat a given violation as especiallyegregious for enforcement purposes. The agency may argue that a violation isexceptional and deserves an enhanced penalty by explaining its decision beforethe Judge and supporting the explanation with evidence.” *Id*. at 18, *14.As explained below, the Court has concluded that this violation was “especiallyegregious.”

Within Part C, themajority, in subpart C, sets forth their “Guidance to Judges on SpecialAssessments.” *Solar Sources*,42 FMSHRC ___, slip op. at 17, 2020 WL 1890528at *12.Calling a Special Assessment “an especially large penalty” and “anextraordinary penalty” the majority states that MSHA “must justify itslitigation proposal with evidence on each of the penalty factors.” *Id.*at17, *13. The second part of the guidance from the majority is that the judge“must base a decision only upon a complete review of the evidence pertaining toeach of the penalty factors, a weighing of those factors in the context of thefacts, and a final resolution based only upon such careful and fully explainedreview.” *Id.* at 18, *13. The Court will, of course, do just that.[7]

Given, at least in theCourt’s estimation, the lengthy narrative provided by MSHA it was surprising toread that the majority has determined that “[n]o significance attaches toMSHA's penalty which is specially proposed for litigation purposes.” *Id.*at18, *14. While the majority then adds that “[t]he agency may argue that aviolation is exceptional and deserves an enhanced penalty by explaining itsdecision before the Judge and supporting the explanation with evidence,”apparently the agency’s explication for the enhanced penalty in its three pagenarrative is outside of the Court’s consideration. *Id*. 

Of course, the Courtfully understands that the reasons presented in the narrative must be backed upby evidence from the hearing, but this is true in any civil penalty proceeding,under  a regular or Special Assessment.  

**II. The Court’s Decision Upon Remandaddressing the remaining statutory factors and its reassessment of a civilpenalty**

Solar Sources’ petitionfor discretionary review is of a limited nature in that its challenge was thatthe Court “erred in assessing the penalty because [the Court] failed to makeadequate findings for each of the penalty criteria in section 110(i), 30 U.S.C.§820(i) of the Mine Act as part of [the Court’s] analysis.” *SolarSources*, 42 FMSHRC ___, slip op. at 1,2020WL 1890528 at *1. That the Court’s reading of thelimited subject matter for this remand is correct was confirmed in the verynext sentence from the Commission majority’s opinion which stated “we vacatethe Judge’s penalty assessment and remand the case to the Judge *to completehis penalty criteria findings and reassess a penalty*.” *Id.*at 1-2,*1. (emphasis added).

Thus the Commission didnot disturb, nor did Solar Sources’ petition for discretionary review seek toreverse, this Court’s determinations that the violation was **significant andsubstantial**, the result of **high negligence**, and an **unwarrantablefailure** to comply with the safety standard. 

Althoughthe majority also noted that Judgesareaccorded*broaddiscretion*toassesscivil penalties, it added that theirdecisionsmustreflectproperconsiderationofthesection110(i)penaltycriteria.[8] Thus, in the context ofits penalty determination, the Court must do two things: fully consider each ofthe statutory criteria and adequately explain the basis for the penaltyassessed. *Id.*The majority then added that such an adequate explanationis to include, “when appropriate, how the penalty criteria *interplay*[9]withone another.” *Id*. at 4-5, *4 (emphasis added).  Elaborating about thisinterplay, the majority stated this may include “analyzing any relationshipsbetween the [penalty] criteria that may affect the ultimate penalty assessment.Thus, for example, a discussion of the size of a mine and the frequency ofviolations in juxtaposition may be informative to the reasoning behind apenalty evaluation more fully than looking at each criterion as a distinctelement of a penalty.” *Id.* at 5. Removing any doubt, the majority thenadded that the Judge has to “fully consider[ ] the penalty criteriaindividually and *in relationship to one another*.” *Id.* at 6, *5.

 

** **

**FINDINGSOF FACT UPON REMAND AND DISCUSSION**

** **
    - The     Court’s Findings regarding the statutory penalty factors.

** **

****Tobegin, so that it is not forgotten in the ensuing discussion of the penaltyfactors which the Court has been directed to address upon this remand, theCourt wants to take a moment to refresh the readers’ recollection of theseriousness of this violation, and the Court’s attendant findings that thegravity was found as “occurred.” The event resulted in significant injuries tothe truck driver, Shawn Standish, in his leap for life from the immense dumptruck, just before it toppled over the collapsed berm and careened down theslope. 

 

            Themajority has acknowledged that the Court’s analysis discussed the penaltyfactors of negligence and gravity, but in contrast it stated that “the Judge'sdecision was totally deficient of any evaluation of ‘the operator's history ofprevious violations’ and ‘the demonstrated good faith of the [operator] chargedin attempting to achieve rapid compliance after notification of a violation’” *Id.*at 7, *5.

 

            While not in any way challenging themajority’s expressions regarding a judge’s analysis of the penalty factors andthe penalty advocated by the Secretary where a Special Assessment is involved,for the sake of completeness it is noted that the SpecialAssessment standard provides, in relevant part that: 

“MSHA may elect towaive the regular assessment under § 100.3 if it determines that conditionswarrant a special assessment. [ ] *When MSHA determines that a specialassessment is appropriate, the proposed penalty will be based on the sixcriteria set forth in § 100.3(a)*. *All findings shall be in narrativeform.*” 30 C.F.R. §100.5, (a), (b). (emphasis added). 

Special Assessmentshave been around for a long time, in fact, **for some forty-two** (42) **years**.*See, for e.g., Coal Employment Project v. Sec’y of Labor*, 889 F.2d 1127,1129 (“The special assessment, which was also originally established in 1978,43 Fed.Reg. 23,516, 23,519, and somewhat modified in 1982, 47 Fed.Reg. 22,292,22,296, is designed for particularly serious or egregious violations.”). *Seealso, Southern Ohio Coal*, 4 FMSHRC 1458 (Aug. 1982).

Recognizing that themajority was likely speaking generically, their remark that Special Assessmentsdo not “*consider*[ ]*the specific facts of the violation*,” atleast for this case, does not apply. *Id*. at 14, *11. (emphasis added). TheSecretary’s Narrative Findings for a Special Assessment is nearly three pageslong and, at least as the Court reads the document, it does speak to thespecific facts. Pet. for Assessment of Civil Penalties at 7-9, which is part ofthe official record. This determination is that, based on the official record,MSHA complied with its own standard in that it elected to waive the regularassessment upon determining that a Special Assessment was warranted and thatits proposed penalty was based on the six criteria set forth in § 100.3(a). *Id.*at 7.[10] However, it is true, as reflected below, that apart from negligence andgravity, MSHA made only brief reference to the other criteria before itsstatement that “[b]ased on the six criteria set forth in 30 CFR 100.3(a) andthe information available to the Office of Assessments,” it arrived at theproposed penalties in this case.

It is also worthy tocall attention to the full text of the Secretary’s lengthy Narrative Findingsfor Special Assessment,[11]which provided:

Under 30 CFR 100.5, the Mine Safetyand Health Administration may elect to waive the regular assessment formulacontained in 30 CFR 100.3 in determining the civil penalty for a violation ofthe Federal Mine Safety and Health Act of 1977, if it deems that conditionsconcerning the violation warrant. **MSHA decided to propose a specialassessment in accordance with 30 CFR 100.5 for the following violations becausethe violations resulted from the operator’s unwarrantable failure to complywith mandatory standards and resulted from the operator’s high negligence. Thecombination of these factors indicated the need for greater deterrence than theregular assessment penalty would provide.**

MSHA carefully evaluated theconditions cited and the inspector’s relevant information and evaluation. Theproposed penalty reflects the results of an appraisal of all the factspresented. 

On June 30, 2016, MSHA issuedSection 104(d)(1) Citation 9102704 at the Shamrock Mine. Solar Sources, Inc.was cited for a violation of 30 CFR 77.1605(1) because berms, bumper blocks,safety hooks or similar means were not adequately constructed in order toprevent overtravel and overturning at dumping locations. The gravity of theviolation was considered serious and the violation contributed to the cause ofa power haulage accident. A mobile equipment operator received serious injuriesas he jumped from a haul truck that overtraveled and overturned at a dumpinglocation. The violation resulted from the operator's high degree of negligence.A power haulage accident occurred which resulted in serious injuries to anequipment operator as he jumped to dismount an overturning haul truck. The haultruck operator was attempting to dump a load of slurry material at the west endof the gob dump at the 001 pit. The haul truck's rear tires overtraveled theberm and began to sink causing the haul truck to overturn. The truck traveleddown an approximate 42 foot embankment and came to rest upside down in a slurrypit filled with mud and water estimated to be approximately 30 feet in depth. Asthe driver realized that the haul truck was overturning, he jumped a verticaldistance of approximately 13 feet as a last resort to escape the vehicle beforeit overturned. The truck driver suffered broken heels on both feet and a brokenankle as a result of the accident. The material used to construct the dumpingpoint berm was described as "gob material" consisting of highmoisture content which could not be adequately compacted. The berm was notstructurally sufficient to support the weight of the loaded haul truck. Thetruck subsequently overtraveled the berm and overturned. Berms are required tobe constructed to a minimum height equal to the center axle height of the heavyequipment being used at the facility. The height of the berm was approximately26 inches and the center axle height of the haul truck was 39 inches. The bermheight was approximately 13 inches lower than the required minimum height. Managementknew or should have known that the berm construction was inadequate and made noeffort to correct the hazardous condition. The dump area had been examinedwithin one hour prior to the accident and no hazardous conditions were noted inthe examination records. On the same day, MSHA issued Section 104(d)(1) Order9102705 at the same mine. The operator was cited for a violation of 30 CFR77.1713(a) because the operator failed to conduct an adequate on-shiftexamination of the gob dump area at the 001 pit. The gravity of the violationwas considered serious and the violation contributed to the cause of a powerhaulage accident. A mobile equipment operator received serious injuries as hejumped from a haul truck that overtraveled and overturned at a dumping location.**The cited standard is identified as a "*Rules to Live By*"standard. These are the safety and health standards most frequently citedduring fatal accident investigations; the conditions or practices cited asviolations of these standards are those that most commonly contribute tofatalities in the mining industry. *The mining industry has been made awareof these standards and operators should have heightened awareness inidentifying and correcting associated hazardous conditions.* The violationresulted from the operator's high degree of negligence. A power haulageaccident occurred which resulted in serious injuries to a haul truck driver ashe jumped to dismount an overturning haul truck at the gob dump area.**Severalhazards were identified and cited relative to the construction of the berm atthe dump location and a determination was made that the inadequate bermconstruction contributed to the accident. The on-shift examination of the dumparea had been conducted within one hour prior to the accident and no hazardousconditions were noted in the examination records.**Management failed toidentify and correct obvious hazardous conditions related to the bermconstruction and allowed dumping operations to continue while exposing minersto the uncorrected hazards.**

The violations were cited during aninvestigation of a serious power haulage accident that occurred at the abovemine on June 29, 2016. The number of previously assessed violations andinspection days at this mine, and the size of the mine and company appear onthe attached Proposed Assessment. In accordance with 30 CFR 100.3(h), MSHApresumes that the operator's ability to continue in business will not beaffected by the assessment of a civil penalty.”  The Secretary then continuedthat “[b]ased on the six criteria set forth in 30 CFR 100.3(a) and theinformation available to the Office of Assessments,” it proposed a civilpenalty in the amount of $68,300.00 for each of the two violations alleged inthis docket, with No. 9102704 being a (d)(1) citation and No. 9102705 a (d)(1)order. 

Pet. for Assessment of Civil Penalties at 7-9(emphasis added).

 

The Majority expressedthat “[p]roviding a rationale for a special assessment is essential toproviding more clarity to the Judge, and to the Commission on review, and theSecretary is obliged to provide more than an opaque process and a secret theoryof the case.” Majority Remand at 9, n. 13. While the majority has identifiedthis Court’s shortcoming in not detailing consideration of the penalty factors *otherthan negligence and gravity*, and for which the Court takes ownership, itrespectfully disagrees that the Secretary had, in any manner, a “secret theoryof the case.” Both the testimony and exhibits at the hearing, as discussed atlength in the Court’s 35 page Decision and Order, and the full text of theSpecial Assessment Narrative, as quoted next above, refute that – clearly, fromthe Special Assessment’s words, there was no “secret theory.” 

            As reflected above, the SpecialAssessment explains that its genesis was the allegation that the operatorfailed to have an adequately constructed berm to prevent overtravel andoverturning at dumping locations. This of course was found to be the fact inthe Court’s March 29, 2018 decision. Regarding the penalty factors andbeginning with the gravity, the Narrative Findings inform that the gravity wasconsidered to be serious and that the violation contributed to the cause of apower haulage accident. 

The Narrative continuesthat the “mobile equipment operator received serious injuries as he jumped froma haul truck that overtraveled and overturned at a dumping location.” Pet. forAssessment of Civil Penalties at 7. This too was found by the Court asirrefutable. The narrative then addressed the factor of negligence, describingthe violation as “result[ing] from the operator's high degree of negligence.” *Id*.

No obscure theory waspresented. The Narrative detailed the basis of its claim, expressly statingthat “[t]he material used to construct the dumping point berm was described as‘gob material’ consisting of high moisture content which could not beadequately compacted. The berm was not structurally sufficient to support theweight of the loaded haul truck.” *Id.*at 7-8.  It would be difficult tobe more plain about the basis for the Special Assessment and the theory behindit.[12]

Further, the Narrativeclearly articulates its view that “[m]anagement knew or should have known thatthe berm construction was inadequate and made no effort to correct thehazardous condition.”[13]*Id.*at 8. 

Additionallyarticulating the basis for moving forward as a Special Assessment, thenarrative noted that: 

[t]hecited standard is identified as a "Rules to Live By" standard. *Theseare the safety and health standards most frequently cited during fatal accidentinvestigations*; the conditions or practices cited as violations of thesestandards are those that most commonly contribute to fatalities in the miningindustry. *The mining industry has been made aware of these standards andoperators should have heightened awareness* in identifying and correctingassociated hazardous conditions.

*Id*.(emphasis added). 

 

It is true, as theMajority has noted, MSHA’s consideration of the other penalty factors was quitebrief. However, in that regard, the Narrative did identify the mine’s violationhistory and its size, stating, “[t]he number of previously assessed violationsand inspection days at this mine, and the size of the mine and company appearon the attached Proposed Assessment.” *Id*. at 9. Further, MSHA presumed,and correctly as the burden is on the mine operator, that “the operator'sability to continue in business will not be affected by the assessment of acivil penalty.” *Id.*If one is keeping count, that means that, except forthe “good faith” factor, MSHA identified the basis for each penalty factor, andaugmented its rationale both with detail and by highlighting that the allegedviolation involved one of the agency’s Rules to Live By. Accordingly, at leastthis Court does not view the Narrative as an impenetrable opaque process. Noris it reasonable in the early stage of the assessment process for the Secretaryto provide chapter and verse all of the reasons for its determination tospecially assess violations. Any reasonable mine operator reading the SpecialAssessment would not be in the dark about the Secretary’s grounds for theAssessment nor, for what is the Secretary’s prerogative, the decision to issuea Special Assessment because of those grounds. That a mine operator may notlike that decision is another matter. 

Respondent, SolarSources, did contend, and the majority has so found, that the Courtinsufficiently discussed some of the penalty factors. The Court now remediesthis deficiency, at least as to the identified penalty factors *other*thannegligence and gravity. 

It’s no understatementto say that the parties spent only a *very* small fraction of the two dayhearing on the penalty factors involving good faith, history, size, and abilityto continue in business. Instead the wealth of the attention at the hearing, aswell as that given in the post‐hearing briefs, were all about contentionsregarding the issues relating to the fact of violation, whether there was anunwarrantable failure, whether the violation was significant and substantialand whether it should’ve been specially assessed. The Court fully understandsthat *speaking for the moment only to those former factors of good faith,history, size, and ability to continue in business*, the Secretary, as with *each*factor, has the burden of proof.[14]

            TheCourt has reviewed Commission decisions referencing the statutory penaltycriteria. For each penalty factor, this decision upon remand will discuss thepertinent Commission decisions for a given factor and then apply thatinformation to the Court’s findings of fact and conclusions therefrom in lightof the record evidence and its section 110(i) findings.

 

The Court first takesnote that the majority, in referring to the its statement that the Court gave“short shrift” to consideration of some of the statutory criteria, expressedits own view about two of the criteria: the operator's history of previousviolations and the demonstrated good faith of the operator charged inattempting to achieve rapid compliance after notification of a violation. 

**Good faith**

**The Commission’s decisions regarding thepenalty criterion of the operator’s good faith in attempting to achieve rapidcompliance.**

****Inits review of Commission cases which refer to the “good faith” factor, theCourt has found some guidance, although none of it comes to the aid of SolarSources to warrant a penalty reduction in this case.  

In *U.S. Steel*,the Commission did not agree with the judge’s conclusion that the mine’sactions in sending a less experienced attorney to abate the violation negatedthe mine’s claim of good faith. Instead, the Commission, expressed that “goodfaith” should be judged in terms of objective attempts to achieve rapidcompliance after notification of a violation. It also noted that the partiesstipulated that U.S. Steel demonstrated good faith in abating the citation atissue within the time provided. *U.S. Steel v. Sec’y of Labor*, 6 FMSHRC1423, 1434 (June 1984).  

In *Madison BranchManagement,*the Commission acknowledged that in determining whether anoperator had demonstrated good faith in attempting to achieve rapid compliance,it examines “the scope of the citations and the actions required forabatement.” *Madison Branch Management v.**Sec’y**ofLabor*, 17 FMSHRC 859, 865–67 (June 1995).

So too, while the Commissionrecognized that where an operator demonstrates “*much more* than ordinarygood faith,” a judge *may* give much more weight than normal to the goodfaith criteria in assessing a penalty, *Coal River Mining, LLC*, 32 FMSHRC82, 2010 WL 594840, at *11–12 (Feb. 2010) (emphasis added). In *Coal River,*the judge in that case found that the operator did act quickly to do more thannecessary *to abate the violation* in question. 

However, the Court hasdetermined that such a nod to an operator’s actions do not apply in this SolarSources matter, where the subject matter of the citation, here the collapsedberm, vanished in a rubble down the dump site slope. As explained below, thatis not the sole basis for the Court’s determination that the operator is due nopenalty reduction on that account.  

In *Hidden SplendorResources*,**former Commissioner Cohen, in his concurring opinion,noted that the foreman ordered miners out of the mine, and did not wait untilreceiving a citation to do so. *Hidden Splendor Resources, Inc.*, 36FMSHRC 3099, 3108–09 (Dec. 2014). Thus, the foreman took prompt action *toavert*a hazard. The Court notes that no such like action occurred here withSolar Sources; no hazard was averted.

In *SunnyRidge Mining*, speaking to whether the operator “demonstrated good faith ...in attempting to achieve rapid compliance after notification of [the]violation,” [the Commission remarked that] the record merely indicates that theviolation was abated approximately 4 hours after the order was issued whenSunny Ridge “removed the height of the spoil material.” ... Accordingly, [theCommission found] that Sunny Ridge demonstrated neither good faith nor badfaith in abating the violation. *Sunny Ridge Mining Company, Inc*., 19FMSHRC 254, 263 (Feb. 1997). Thus, *Sunny Ridge*is indicative that evenwhere abatement actions occur, good faith does not automatically inure to thebenefit of an operator. 

** **

**Discussion of the goodfaith factor**

**Good faith contentionsraised by the Respondent**

Respondent’s Counselcontended at the hearing that “the changes that [the Respondent] made inoperations and efforts to prevent a reoccurrence would factor in when [theCourt makes its] final penalty assessment. And we’re happy to argue that in abrief.” Tr. 347. The Court sought clarification, inquiring, “under good faith?”Respondent’s Counsel responded, “Yes. And the expense they've taken to go to adifferent system.” Tr. 348.  Respondent’s Counsel then added, “And I've alsohad cases where when an operator goes to expense and does changes, that thatfactors into the penalty as well. There’s a number of cases on that.”[15]Tr. 349.

Respondent’s Counselthen asked of his witness the following leading question:     “But basically,what you've done, Mr. Atkinson, you-all have designed a system now thatprevents what happened here of a berm collapse from occurring?” to which thewitness answered, “Yeah.” Tr. 349.

Later, the Courtreminded Respondent’s Counsel of his assertion that he knew of cases thatsupported his view of good faith abatement, noting at the hearing that he“[al]luded to the scope that I can consider in terms of good faith abatement. [TheCourt then added] “[b]e sure that you highlight the cases. You weren't sure ifthey were administrative law judge or commission level cases. And that was inthe context of what Mr. Atkinson did in terms of revising the berm scenario,you know, the diagram, et cetera, okay? Highlight that in your brief so I canconsider that and look up those cases myself.” Tr. 367. Respondent’s Counselanswered, “Thank you, sir.” *Id*.[16]

The Respondent neverprovided any cases at hearing, nor in its post-hearing briefs, although duringthe Court’s conference call *post**the majority’s remand decision*,Respondent’s counsel tried to cite a case, at a time more than two years afterits post-hearing briefs were submitted. *See* n.16, *infra*. 

**Good faith factor contentions raised bythe Secretary of Labor**

In contrast, at thehearing the Secretary’s Counsel expressed a different view about this penaltyfactor, stating she “believe[d] good faith has to go to efforts made before thecitations were issued.” Tr. 348. That, the Court believes, cannot be true, asthe applicable words for the factor provide that the demonstrated good faith ofthe operator charged pertains to attempting to achieve rapid compliance *afternotification* of a violation. While that contention is therefore rejected,the Court still stands by its conclusion that whatever efforts were made toaddress future berm collapses they are not applicable to this violation. The subjectberm, having collapsed and shedded down the slope, it was not possible toachieve rapid compliance for it as it was non-recoverable. Beyond that, asexplained in this decision, even under a more generous interpretation of thisfactor, the Respondent’s response to the violation was utterly devoid of goodfaith. 

** **

**The Secretary’sPost-Hearing Brief**

TheSecretary said virtually nothing about good faith in its post-hearing brief. Insteadthe Secretary referred to the Narrative Findings for the Special Assessment.   Thesame is true of the Secretary’s Reply Brief; the Secretary did not speak tothat factor. However, as described *infra*, there was very probativetestimony adduced by Respondent’s own witness on this subject.

**Respondent’sContentions regarding good faith during the hearing.**

Asmentioned above, at the hearing, Respondent’s Counsel remarked on the issue ofgood faith that he “believe[d] the changes that [the mine] made in operationsand efforts to prevent a reoccurrence would factor in when you do your finalpenalty assessment. And we're happy to argue that in a brief.” Tr. 347. Addingthat he was speaking on the topic of good faith, he affirmed, “Yes. [and thenadded][a]nd the expense they've taken to go to a different system. I mean, wecan obviously put something in a brief ...” Tr. 348.[17]Respondent’s Counsel continued that he has “had cases where when an operatorgoes to expense and does changes, that that factors into the penalty as well.There's a number of cases on that.”[18]*Id.*

**Respondent’scontentions regarding good faith in its post-hearing briefs**

Respondent notes thatSection 100.3(d) states that “[m]itigating circumstances may include, but arenot limited to, actions which an operator has taken to prevent, correct, orlimit exposure to mine hazards.” Resp’t Br. at 27. Respondent contends thatthere were mitigating circumstances, in that “it has taken steps to preventanother such accident from happening.” *Id.* As set forth below, the Courtnotes that, when taken in context, that is an incomplete recounting of theactions taken by the Respondent. Respondent’s Brief continued: 

As explained by Mr. Atkinson, SolarSources completely redesigned how it dumped gob and slurry into the pit afterthis accident and submitted a modified ground control plan. There is now achute with a berm and area just below it that is also ‘bermed off.’ Tr., Vol I,p. 344-347; *see also*R-22. Once material accumulates, a dozer pushes thematerial into the pit. *Id.*at 345. This keeps the truck operator behindtwo berms, some 20 feet away from the edge of the bank, and also leave a muchlarger and more stable base that will not collapse as occurred here. *Id.*at345; *see*also R-22, modified Ground Control Plan.

*Id.*Respondentalso stated that “the record establishes the mine had instituted a new GroundControl Plan that no longer has trucks dumping near the edge of a pit toprevent a reoccurrence of this event and should be considered in setting apenalty.” Resp’t Br. at 35. The Respondent’s post-hearing reply brief added nothingto the subject of good faith.  

**The Court’s Discussionand findings on the subject of the Good Faith factor**[19]****

TheCourt takes note that the “good faith” factor too often is truncated to those twowords. Yet it must be remembered that, in full, the text of the statutoryprovision is directed toward a particular demonstration of good faith, namely *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),(emphasis added).

TheCourt is of the view that, both the facts in this matter as well as theCommission cases cited above illustrate, by way of counterexamples, theRespondent is entitled to no reduction in the penalty imposed because, to putit simply, there was no good faith in attempting to achieve rapid complianceunder this penalty criterion. After all, the berm vanished upon its collapse,taking the huge truck along with it. No rapid compliance was thereafteravailable. 

Asthe berm no longer existed, a result brought about by the operator’s failure tohave been vigilant about its condition and by its failure to properly maintainit, there could be no rapid compliance to correct the violation. 

Workingvery much against a finding of crediting Solar Sources’ claim of good faith, inthe Court’s view, is *Lehigh Anthracite Coal, LLC*. There, the operatortook proactive steps *prior to MSHA being notified*. In the case beforethis Court, such like action would have involved recognition of thedeteriorating effects on the berm’s integrity by the process of dumping thesoupy slurry material.  After all, management knew that their berms requiredconstant attention. The Court notes the testimony of MSHA Inspector Jason Noelat Tr. 43, 135, 143, 144, 145, 146, 149, 189, and pit supervisor Lutgring’sadmission that berms need maintenance after being constructed, Tr. 396 and his acknowledgementthat he told Inspector Noel that “[*b*]*erms are a constant problem withthese dumps*.” Tr. 397 (emphasis added). By comparison, *no proactivesteps occurred*, nor could there have been any actions undertaken after theevent, as the berm, having completely collapsed, no longer existed.  Cf. *LehighAnthracite Coal, LLC*, 40 FMSHRC 273, 284 n.14 (Apr. 2018).

Commissionlevel decisions support the Court’s determination that good faith, at leastunder the use of that phrase in the Mine Act, was not present in this matter. Again,with the berm gone, taking the truck along with it, it was too late for anysuch attempt to achieve rapid compliance.

Although,in the Court’s view, this is sufficient to find that no reduction in thepenalty is warranted in this instance on good faith grounds, the testimony ofthe Respondent’s own witness further demonstrates the correctness of thisconclusion.   Solar Sources Safety Director, Steven Fields, testified,regarding what changes occurred following the incident, that “MSHA ***madeus*** submit a ground control plan or revised ground control plan. ...that'swhat **we had** to do. ***We had to***revise that so it basicallyput[] at least 20-foot or minimum 20-foot between the berm and then anotherberm and then the spoil bank.” Tr. 516-517 (emphasis added). Although hisanswer was clear (and unhelpful to any claim of good faith), Counsel forRespondent continued, “[t]hen why would you -- why did you do that?” *Id*.Fields repeated, “**They made us do it**.” *Id.* (emphasis added). Withanother self-inflicted wound, Counsel asked, “[d]o you believe personally thatit’s a better system?” *Id*. (emphasis added). “Yes,” Fields respondedwith a thud. *Id.*

**Violation History**

**Thispenalty factor provides “[i]n assessing civil monetary penalties, theCommission shall consider the operator’s history of previous violations.” 30U.S.C. §820(i).**

The majority hasexpressed that the “record contains highly relevant evidence regarding theoperator's violation history. Yet, the Judge did not engage in any analysis anddid not make any finding on the possible significance of such evidence. TheJudge merely references Government Exhibit P-2.”[20]*SolarSources*, 42 FMSHRC ___, slip op. at 7,2020WL 1890528 at *6. 

In this respect, thatis, the Respondent’s violation history, the majority did not disguise theirview that a history as the Respondent’s here: 

may be highly relevant toincentivizing compliance [and that at least in this case] it is error to ignorethe history of violations in imposing a penalty merely by noting an exhibit inthe record.... [and that] an operator's history of few violations is relevant inconsidering the assessment of higher penalties. 

*Id.*at7, n. 9, *6, n.9. And so, the majority stated this, i.e. the significance ofthe history of violations, is a question of fact for the Court to resolve. 

**Commission casesregarding the violation history factor**

The Commission hasstated that it is appropriate to broadly consider an operator’s general historyof all violations: 

the language of section 110(i) doesnot limit the scope of history of previous violations to similar cases. ...‘section110(i) requires the judge to consider the operator's general history ofprevious violations as a separate component when assessing a civil penalty. Pastviolations of *all* safety and health standards are considered for thiscomponent.

*Secretary of Labor and United MineWorkers of America v. Jim Walter Resources, Inc*.,18 FMSHRC 552, 556–57, (citing *Peabody Coal Co.,* 14 FMSHRC 1258,1264 (Aug. 1992))(“*Peabody*”)(emphasis in original). Thus, in a caseinvolving interference with walkaround rights, the operator’s history is notonly to include other violations involving discrimination but the mine’sgeneral history of violations is to be included, as well.[21] In thesame case, the Commission also inferentially remarked on the appropriateness ofconsidering the operator's general history of previous violations, observingthat the “ judge failed to consider the operator's general history of previousviolations submitted into evidence by the Secretary as the Assessed ViolationHistory Report.” *Id.*at *557.**

            The Commission has also indicated thatit wants more particularity from a judge when evaluating this factor. In *AmericanCoal*(2016), it was critical of summarily addressing a violation history. Inits remand, the Commission instructed that the Judge must make a finding as tothe history of violations pertaining to the cited violation.*The American Coal Co.*, 38 FMSHRC 1987, 1997–98. In that case, theCommission also expressed that a review of the general history of violations isappropriate, and if the judge had not considered a specific violation history,it was in that case harmless error. Thus, the mine’s general history is to beconsidered, “not just to violations of a kind similar to the one giving rise tothe penalty assessment.” *Jim Walter Res., Inc.*, 28 FMSHRC 983, 995 (Dec.2006). 

Consistent with themajority’s overall language about the judge’s role in assessing a penalty, thenChairman Commissioner Jordan and former Commissioner Nakamura expressed thatalthough Wade challenged whether the Secretary appropriately calculated itsviolation history, it was unnecessary to address that contention as theAdministrative Law Judge made an independent determination of the penalty whichwas supported by substantial evidence and within the judge’s discretion. *WadeSand & Gravel,*37 FMSHRC 1874, 1881–83 (Sept. 2015).  Thus the key uponreview is whether the judge determined the penalty pursuant to section 110(i)of the Mine Act, independently of the Secretary's Part 100 regulations. Infavoring a wider aperture of a mine’s violation history, the concurrence in *Wade*took note of:

**the deterrent purpose**behind the Mine Act's penalty procedures. The D.C. Circuit's discussion of thelegislative history behind this criterion in *Coal Employment Project v.Dole*, 889 F.2d 1127 (D.C. Cir. 1989), highlights this point. ... [observingthat] “[t]he court stated that Congress “was intent on assuring that the civilpenalties provide an effective deterrent against offenders *with records ofpast violations*” and concluded that the Mine Act and legislative historyrequired MSHA to consider *all* violations under the history of violationscriterion.

*Id.* at 1133,1138. (emphasis added).

In its *Cantera Green*decision, a case in which a mine did not have a recent history of similarviolations, and had 18 violations in the previous two years, consistent withthe cases cited above, the Commission therein noted that “the language ofsection 110(i) does not limit the scope of history of previous violations tosimilar cases.” 22 FMSHRC 616, 623–24 (May 2000) (citing *Sec’y of Labor onbehalf of Johnson v. Jim Walter Resources, Inc*., 18 FMSHRC 552, 557 (Apr.1996)). The Commission added that “section 110(i) requires the judge toconsider the operator's general history of previous violations as a separatecomponent when assessing a civil penalty. Past violations of *all* safety andhealth standards are considered for this component.” *Id.*at 623 (citing *PeabodyCoal Co*., 14 FMSHRC 1258, 1264 (Aug. 1992)) (emphasis in original). TheCommission expressed that a judge should evaluate whether that history washigh, moderate, or low. *Id.*(citing *Sec’y of Labor on behalf ofHannah v. Consolidation Coal Co*., 20 FMSHRC 1293, 1305, n.14 (Dec. 1998)).

Of relevance to thisSolar Sources matter, the Commission expressed that a history of similarviolations may demonstrate that the operator had *prior knowledge of thespecific safety or health standard cited*. It rejected the argument that itamounted to an improper consideration of the history of violations by countingit twice -- once when considering the general history criterion and a second timein consideration of the negligence criterion -- explaining that suchconsideration was not improper or duplicative because the purpose of the twocriteria are different. *Peabody*14 FMSHRC 1258, at 1264, (Aug. 1992).

**Hearing references to the Operator’sHistory of Violations.**

Counsel for theSecretary referenced Ex. P 2, which is MSHA’s certified history of violations.[22]Tr. 12. Respondent’s Counsel did not challenge the admissibility, nor the accuracyof Ex. P 2. Rather, Respondent pointed to Ex. P 2 in support of Solar Sources’contention that its violation history should constitute a favorable element inany penalty determination. In that regard it noted that the Respondent had onlyfour unwarrantables in its history. During the second day of the hearing, theRespondent revisited the violation history issue. Steven Troy Fields[23],has been the Respondent’s safety director since 2008. Tr. 486. Asked aboutsimilar violations at the Shamrock Mine *in the recent past*, Fieldsresponded there had not been any in the recent past. Tr. 498. However, therehad been such similar violations in 2008 “and possibly, like, 2010, 12 or '11.”*Id.*

In the Respondent’spost hearing brief, though speaking in the context of whether there was anunwarrantable failure, the Respondent stated:

The purpose of evaluating thenumber of past violations is to determine the degree to which those violationshave ‘engendered in the operator a heightened awareness of a serious . . .problem.’ *San Juan Coal Co*., 29 FMSHRC 125, 131 (Mar. 2007), citing *Mid-ContinentRes., Inc*., 16 FMSHRC 1226, 1232 (June 1994). ... [and] even if the Courtshould agree that the berm did not comply with [the] cited standard, there isno evidence that Solar Sources was on notice that greater efforts are necessaryfor compliance. There is no evidence of any berm violations in this operator'shistory, at least since 2010 or 2011. Tr. Vol. II, pp. 498. Inspector Noeladmitted he found no other berm citations in the mine's recent violationhistory. Tr., Vol. I, p. 272. 

Resp’t Br. at 29-30. Respondent added on this topicthat “there is no excessive history of violations or repeated noncompliancewith the cited standard. In fact, the only evidence of any berm violationsoccurred in 2008 and 2010-2011, according to the Director of Safety, TroyFields. Tr., Vol. II, pp. 498-499.” Resp’t Br. at 34.

In Respondent’s posthearing reply brief, it essentially repeated its previous arguments on thisfactor, again with an eye toward its displeasure that the violation wasspecially assessed, remarking that: 

[t]he Mine's Citation History,attached as the Secretary's Exhibit P-2 further establishes this citationshould not have been specially assessed. In the 15 months prior to thiscitation, the mine had 19 104(a) citations assessed at a total of $13,276. Therewere no unwarrantable failures in that 15-month period; only nine citationswere significant and substantial and six citations were assessed at the minimum$100 penalty. In fact, only two citations were assessed above $1,000. (SecretaryExhibit P-2).

Resp’t Reply Br. at 17. 

**Discussion of the history of violationsfactor**

There is no evidence ofany berm violations in this operator's *recent* history, at least since2010 or 2011. Tr. Vol. II, pp. 498. Inspector Noel admitted that he found noother berm citations in the mine's recent violation history. Tr., Vol. I, p.272. Resp’t Prehearing Br. at 29. Then, later in R’s Brief: “Third, there is noexcessive history of violations or repeated noncompliance with the citedstandard. In fact, the only evidence of any berm violations occurred in 2008and 2010-2011, according to the Director of Safety, Troy Fields. Tr., Vol. II,pp. 498-499.” Resp’t Prehearing Br. at 34. Depending how one defines “recenthistory,” one must bear in mind that *the berm collapse here occurred in June2016*.  Thus, while not recent, berm violations in 2010 or 2011 are notancient either. 

The Court hasconsidered the testimonial evidence and the lone exhibit regarding this issue. Basedon the record and the contentions, the Court finds that the Respondent’sviolation history does not warrant a reduction in the penalty assessed for thisviolation. At most, any reduction should be minimal. There are a number ofreasons for this. First, as Respondent admits and one of its witnessesacknowledged, the mine *has*in fact been cited for berm violations in thepast. That there were no berm violations in the*recent* past is not awinning argument, at least to this Court. By having any berm violations in itshistory, and noting that those violations were not ancient by any means, theRespondent should not be awarded with a penalty reduction on that account. Fromthat point on, with a witness for the Respondent  stating that there had beensuch similar violations in “2008 and possibly, like, 2010, 12 or '11,” theRespondent was obligated to be vigilant to berm issues. Tr. at 498. Testimonyof Steven Troy Fields, Respondent’s safety director since 2008. Such bermawareness should not have a     *de facto* expiration date. Thus, theCourt does not agree with the assertion that Solar Sources was not on noticethat greater efforts were necessary for compliance, on the grounds that therewas no evidence of any berm violations in this operator's history, at leastsince 2010 or 2011. 

Further, while theRespondent has noted that it has few unwarrantables in its history, one mustrecall that “unwarrantable failure is aggravated conduct constituting more thanordinary negligence. *Emery Mining Corp*., 9 FMSHRC 1997, 2001 (Dec.1987). Unwarrantable failure is characterized by such conduct as “recklessdisregard,” “intentional misconduct,” “indifference,” or a “serious lack ofreasonable care.” *Sec. v. Consol Pennsylvania Coal Co*., 39 FMSHRC 1893,1908 (Oct. 2017). Thus, one does not effectively receive a violation historyaward by having few unwarrantables. They’re not supposed to happen andnegligence itself is not tantamount to well-received conduct. Last, the Courthas already found that *there was an unwarrantable failure* with *this*bermviolation.

Just as the majorityhas emphasized that, while *the Secretary’s* violation history may look ata two year history, *it’s up to the Court*, in its role of being the firstto independently consider any penalty factor, to decide *on its own* theappropriate range of a mine’s violation history.  Further, in the Court’s view,given the extreme gravity and negligence involved, reducing the penalty on thatbasis, at least under these facts, would distort an appropriate penalty. Thus,per the majority’s view, the Court is considering the interrelationship betweenthe mine’s violation history and the other penalty factors. In addition, theapplicable provision, 30 U.S.C. §820(i) directs only that “the Commission shall*consider*” the operator’s history of previous violations. This does notmean that a history which has a modest or small number of violationsnecessitates a lower penalty. *Id.* (emphasis added). The Court hasconsidered the operator’s violation history and reached the conclusion, for thereasons just articulated, that a penalty reduction is not warranted on thataccount.

** **

** **

** **

**Size of the operator: theappropriateness of such penalty to the size of the business of the operator**

This factor and thenext, the effect on the operator's ability to continue in business, will onlyrequire a very brief discussion. 

The penalty factor ofsize provides “[i]n assessing civil monetary penalties, the Commission shallconsider ... the appropriateness of such penalty to the size of the business ofthe operator charged.” 30 U.S.C. §820(i). 

Government Exhibit A,an official government business record reflecting the Respondent’s size,informs under “Mine Tonnage” **1,181,122 tons**,****and for “ControllerTonnage,” **2,195,076 tons**. (emphasis added). Government Exhibit A was notchallenged by the Respondent. There were no other references in Volume 1 or 2of the transcript to this penalty factor. As mentioned, on April 22, 2020, theCourt convened a conference call with the parties to discuss the penaltyfactors for which the Commission directed greater attention by the Court uponremand.  Email responses to those factors were received by the parties inadvance of the conference. Responding to this factor, the Respondent cited tothe figures in Government Exhibit A and the Secretary referred to the figuresin that Exhibit as well. 

Per 30 C.F.R.§100.3(b), “[t]he appropriateness of the penalty to the size of the mineoperator's business is calculated by using both the size of the mine cited andthe size of the mine's controlling entity. The size of coal mines and theircontrolling entities is measured by coal production. The size of metal andnonmetal mines and their controlling entities is measured by hours worked. Thesize of independent contractors is measured by the total hours worked at allmines. Penalty points for size are assigned based on Tables I to V. As used inthese tables, the terms “annual tonnage” and “annual hours worked” mean coalproduced and hours worked in the previous calendar year.” Solar SourcesShamrock Mine is a surface coal mine. Under Table I and II, a mine thatproduces over a million tons of coal is a large mine, earning 14 penalty pointson a scale where points can range from 1 to 15 points and a controlling entityof the Respondent’s size earns 4 penalty points on a scale where points canrange from 1 to 10. 

However, the Court isnot wedded to Part 100’s tables. Instead, as with each of the penalty factors,the Court independently evaluates this factor, consistent with Commissiondecisional law. In so doing, the Court finds that a mine which produces over amillion tons of coal per year is undeniably a large mine. This unchallengedmillion-plus tons figure is taken into account by the Court, and as aconsequence in determining the penalty factor of size, the Court concludes thatthe Shamrock Mine is a large mine. Thus, this factor weighs toward a largerpenalty in considering size among the statutory penalty factors. 

Accordingly, by anymeasure, Respondent Solar Sources is a large mine and so that factor does notwork to provide a downward figure in the penalty to be assessed in this case.

**Ability to continue in business.**

This last factor forconsideration under the remand is set forth in Section 110(i) of the Act, whichspeaks to the effect on the operator’s ability to continue in business.

In this regard, theCommission specifically raised the ability to continue in business criterion,stating:

[b]ecause Solar Sources did notcontend that payment of the penalty would affect its ability to stay inbusiness, the mistake as it relates to that particular penalty criterion washarmless error. In *Sellersburg* , [citation omitted] the Commission held,‘In the absence of proof that the imposition of authorized penalties wouldadversely affect its ability to continue in business, it is presumed that nosuch adverse effect would occur. 

*SolarSources*, 42 FMSHRC ___, slip op. at 8, n.10,2020WL 1890528 at *6, n. 10. Here, while the Court is unableto determine what the Commission was referring to when it stated that “*themistake* as it relates to that particular penalty criterion was harmlesserror,” it apparently meant *the Court’s mistake* but that, as SolarSources did not contend the penalty would affect its ability to continue inbusiness, such error was harmless. *Id.* (emphasis added).

 

In response to theCourt’s conference call inquiry regarding this factor, the Respondent answeredthat “Solar Sources did not contest the ability to continue in business.” Thisadmission is consistent with the response from the Secretary asserting that theRespondent waived this argument when they did not argue it in their briefs. Theynoted that it is one of the penalty elements, but did not argue the Respondentwould not be able to continue in business if the penalty remained. Althoughthese comments are sufficient to put to bed any claim that this factor needs tobe weighed in assessing the penalty here, the Majority itself has acknowledgedthat it is a non-issue.

**The Court’s considered redeterminationof the penalty for the berm violation**

Before getting into thedetails of the Court’s penalty determination, it is important to refresh thereader about some critical facts involved in this matter. 

As stated in theCourt’s initial decision, 

On June 29, 2016, while backing in,a dump haul truck [driver, Shawn Standish] overtraveled the berm at a dumpinglocation, [with the truck] going over the embankment to the slurry pit some47.75 feet below, [and] landing upside down. The driver jumped from the haultruck before it went over the embankment but received significant injuries fromhis escape.

*Solar Sources*,40 FMSHRC 462 (Mar. 29, 2018) (ALJ). 

Words can only conveyso much and for that reason the Court has included in the Appendix to thisDecision Upon Remand two photos. Those photos convey the significant size ofthe dump truck and where it ended up in the slurry pit. It does not take muchimagination to comprehend Mr. Standish’s certain fate had he not leaped fromthe truck as the berm collapsed. 

Mr. Standish’stestimony included the following description of his harrowing escape,testifying that he:

made a decision to set the bladeback down, throw it in neutral, and grab my seat belt off at the same time andgrabbed the door handle. I had a quick thought to jump off, but I knew Icouldn't -- I didn't think I could get off the chain, so I thought, no, I hadto go off the front. And it's a real quick thinking, ... so straight out thedoor. And then the seat belt kind of -- I remember feeling it on my shoulderkind of catch. And I had to move my arm back like such kind of down back behindme a little bit, and then I -- I ran completely off the end of the catwalk. 

Tr. 460.

Mr. Standish continued:

[a]fter I landed, my right foot wasout in front of my left foot, because I was just running off like an AmericanOlympic, and I rolled to my right. And when I did, I turned my head and lookedback, and then I saw the front of the truck going on over down the pit. 

*Id.*

The Court theninquired: “And d[id] you actually see it flip over as it heads off?” Standishreplied, “Yes.” Tr. 461. The Court continued that it was “impressed that [he]had the presence of mind to jump off the truck. That was a good move, right? *Becauseas you say, not only was the risk of if you stayed in the truck, butapparently, you could have been engulfed in material even if you were in onepiece when the truck finally came to rest, right? That was -- the materialsucks you up, you could have suffocated*?” Again, Standish responded, “*Yes*.”Tr. 465 (emphasis added).

Speaking to theseriousness of his injuries, Standish related that he “had operation[s]   on --on two feet with steel and casts on both of [his] legs. I was on some very,very strong medication.” Tr. 478. Having observed Mr. Standish take the witnessstand, the Court then asked, “Are you having trouble walking because of yourheel still, or is this residual from your heels?” Standish responded, “Yes,sir. ...**There's two donors bone and a steel plate with ten screws that holdsthis foot together.** And like this morning, it takes a little bit to getgoing in the mornings, sir.” Tr. 483-484 (emphasis added). Observing thewitness, as the Court did, as he took the stand, Mr. Standish’s remark that “ittakes a little bit to get going in the mornings” was an understatement.

It is also of note thatthe Court’s finding of a violation was upheld. In this Court’s decision, thesection 104(d)(1) citation alleging a violation of 30 C.F.R. §1605(1),pertaining to berms was affirmed. That standard, titled, “Loading and haulageequipment; installations,” provides at subsection (1) “Berms, bumper blocks,safety hooks, or similar means shall be provided to prevent overtravel andoverturning at dumping locations.” 

The Citation allegedthat:

[t]he berm where the overtraveloccurred was constructed of the slurry material. This material would notcompact enough to create a substantial means of stopping overtravel. The mineoperator has engaged in aggravated conduct by failure to ensure adequate bermswere in place in an area known to have constant problems with maintainingberms. This violation is an unwarrantable failure to comply with a mandatorystandard.

40FMSHRC 463. 

Asfurther explained in this Remand Decision, the Court found that thoughinitially the berm was constructed of substantial material, Solar Sourcesfailed to maintain it, resulting in its collapse.[24]*Id.*at465, 492.

Accordingly,this decision upon remand speaks primarily to the penalty factors identified bythe majority as insufficiently addressed by this Court and the Court’sredetermination of the penalty, all as instructed by the majority for it toperform. 

Thereis a second important matter which needs to be addressed before the Courtspeaks to its penalty determination. In view of the Remand’s directions, theCourt initiated a conference call with the parties for the purpose ofconfirming that it had all the parties’ submitted information from the hearingtestimony and their post-hearing briefs, *regarding the four penalty factors*theCourt has been directed to consider in this Decision Upon Remand. Though *not*requested by the Court, in advance of the April 23, 2020 conference call,Counsel for the Respondent nevertheless included his contention “MSHA Should BeRequired To Produce The Special Assessment Worksheet That Shows The RegularAssessment.” Resp’t Email to the Court, April 17, 2020. 

 Respondent’sCounsel continued:

As noted by the Commission, theSecretary refused to produce the special assessment worksheet, that establishesthe regular assessment based on the Part 100 table. This Court should order theSecretary to produce the Special Assessment Narrative Form before deciding therevised penalty here. [citing] Commission Decision, p. 9, footnote 13. Whilethe Commission decision on remand clarifies the Special Assessment does notcontrol the process, the Commission notes you should have the calculation formthat shows the regular assessment amount.

*Id.*

The Commission footnote cited byRespondent’s counsel stated:

The portion of the Secretary's"Special Assessment Narrative Form" used to derive the amount of thespecial assessment penalty proposal does not appear in this record. It was,however, provided to the mine operator in *AmCoal I*. 38 FMSHRC at 1996.The Secretary bears the burden of justifying his penalty proposal under thecriteria, and "[w]hen a violation is specially assessed that obligationmay be considerable." *Id.* at 1993. Providing a rationale for aspecial assessment is essential to providing more clarity to the Judge, and tothe Commission on review, and the Secretary is obliged to provide more than anopaque process and a secret theory of the case. *See Sellersburg*, 5FMSHRC at 292-93 (explaining that requirement to discuss penalty criteria isnecessary to provide adequate foundation for review).

*SolarSources*, 42 FMSHRC ___, slip op. at 9, n.13,2020WL 1890528 at *7, n. 13.

Thereare several problems with Respondent Counsel’s assertion. To begin, thefootnote from the majority in their remand for this matter, which Respondent’sCounsel relies upon, *does not* say that the Secretary should supply aregular Part 100 assessment. And, the citation by the majority in that footnoteto the Commission’s decision in *Sellersburg*doesn’t suggest that either.Why is that the case? Because, for starters, as far as one can tell, that casedid not have a Special Assessment, at least neither the judge, in his decision,which was all of four pages, made no reference to that. Nor, for that matter,did the judge refer to Part 100 at all in his decision. *See,*4 FMSHRC1362-1366 (July 1982).[25]

Nordid the Commission, in its *Sellersburg*decision on appeal of the trialjudge’s decision, suggest that there were any Narrative Findings for a SpecialAssessment. It is true that the Respondent in that case did “request[] that newpenalty calculations and findings consistent with 30 C.F.R. Part 100 be made.” *Sellersburg*at 290. But the Commission was having none of it. Instead, it explained how thepenalty process works when a mine operator contests a proposed assessment,informing:

it is clear that under the Act theSecretary of Labor’s and the Commission’s roles regarding the assessment ofpenalties *are separate and independent*. The Secretary proposespenalties before a hearing based on information then available to him and, ifthe proposed penalty is contested, the Commission affords the opportunity for ahearing and assesses a penalty based on record information developed in thecourse of an adjudicative proceeding. 

*Id.*at 291 (emphasis added). 

Accordingly,it is more than a stretch to assert that the Commission Majority in this remandis now suggesting that it can require the Secretary to submit a regular penaltyassessment calculation when the Secretary has decided to use his SpecialAssessment procedure. That the majority has been critical of the Special Assessmentmethod vis-à-vis regular assessments is one thing, but at least to this Court,it would be an entirely different matter for the majority to direct theSecretary to provide a regular assessment calculation, when the Secretary hasdecided against that route. The Secretary and the Commission each have theirown domains. Besides, as the *Sellersburg* decision informs, “in acontested case the Secretary’s penalty proposals are not binding on theCommission or its judges. Thus, the penalties assessed *de novo*in aCommission proceeding appropriately can be greater than, less than, or the sameas those proposed by the Secretary.” *Id.*at 293. 

**Summary of the Court’sIndependent Assessment of the Penalty Factors**

Inassessing penalties de novo, it is within the discretion of the Commission, andthus of its judges acting in the first instance, to accord different weights tothe six penalty factors. “[T]here is no requirement that equal weight mustbe assigned to each of the penalty assessment criteria ... [but] all sixstatutory criteria must at least be considered in assessing civil penalties...” *ThunderBasin Coal Co.*, 19 FMSHRC 1495, 1503 (Sept. 1997). The Court has appliedgreater weight to the negligence and gravity penalty factors and determinedthat the modest violation history over the past two years should not operate tobring about a net negative reduction in the penalty assessed, especially whenconsidered with the other statutory penalty factors, all as set forth withdetail in this decision upon remand.

**Negligence**

TheCourt in its March 2018 decision detailed its findings regarding Solar Sources’negligence. Those findings, which the majority did not take issue with, arereaffirmed here.   As the majority noted, this Court analyzed two of the sixstatutory criteria: operator negligence and the gravity. *SolarSources*, 42 FMSHRC ___, slip op. at 7,2020WL 1890528 at *5. Finding the negligence to haveconstituted an unwarrantable failure, the negligence associated with thisviolation was of the highest order for this penalty factor and thus points tothe highest penalty the Court may impose. 

**Gravity**

Here too, as with the negligence factor,the gravity factor, as found by the Court in its March 2018 decision was of thehighest level. If not for Mr. Standish’s wise decision to exercise self-help,in what was literally a leap for life moment, a fatality would almost certainlyhave been the result. The photographs in the Appendix and the testimony leaveno other rationale conclusion.  Further, his leap did not leave him unscathed,not by a long shot. His testimony and his difficulty ambulating as he took thewitness stand plainly established that he has significant health residuals. Accordingly,for this factor too, the gravity associated with this violation was also of thehighest order for this penalty factor and thus points to the highest penaltythe Court may impose. 

 

**Good faith**

Asdescribed in detail above, to put it simply, the Respondent displayed zero goodfaith, as that term is described among the statutory penalty factors. Accordingly,the Respondent is entitled to nothing in terms of any penalty offset orreduction based on that penalty factor. The Respondent sealed its own fate inthis regard, noting that the actions it took subsequent to the berm collapseresulted because MSHA *made it* take those steps. Therefore, the idea of agood faith penalty reduction in this instance is inimical to the concept. 

**Size of the Operator**

****Here,little needs to be said for this penalty factor. There is no disagreement betweenthe parties: Solar Sources, by measure both of mine and by controller tonnageis a large mine. Attachment A to the penalty petition. Therefore, there is nodownward penalty impact for this factor regarding this operator.

**Ability to Continue inbusiness**

****Respondenthas conceded that, even when there were originally two violations involved, a(d)(1) citation and a (d)(1) order, each assessed at $68,300 by the Secretary,such proposed penalties would not threaten its ability to continue in business.Accordingly, there is no downward impact on the penalty imposed uponconsideration of this penalty factor.

**History of Violations**

****Regardingthe operator’s violation history, the majority expressed that Gov. Exhibit P 2reflects:

a positive compliancerecord in that the operator had not had a berm violation in six years and onlytwo such violations in its entire history. It did not have any unwarrantablefailures in the 15 months preceding the citation. In fact, the operator hadreceived only 19 citations under section 104(a) of the Mine Act, 30 U.S.C. §814(a), for which it was penalized a total of $13,276. 

*Solar Sources*,42 FMSHRC ___, slip op. at 7, n.8, 2020WL 1890528 at *6, n. 8. 

On this topic, the Commission alsostated that “consistent with the graduated enforcement scheme of the Act, anoperator's past history of significant violations *should be considered*in considering assessing higher penalties. ... . By parity of reasoning, anoperator's history of few violations is relevant in considering the assessmentof higher penalties.” *Id*. at 7-8, n. 9, *6, n.9 (emphasis added). As setforth in this decision, the Court has *considered*the operator’s two yearviolation history. 

 

Inthis respect, that is, the Respondent’s violation history, the majority did notconceal their view that, as noted earlier, a history as the Respondent’s here, 

may be highly relevant to incentivizing compliance[and that at least in this case] it is error to ignore the history ofviolations in imposing a penalty merely by noting an exhibit in the record....[and that] an operator's history of few violations is relevant in consideringthe assessment of higher penalties. 

*Id.*at7, and n. 9, *6, n.9. 

Andso, the majority stated this, i.e. the significance of the history ofviolations, is a question of fact for the Court to resolve.[26] Themajority has indicated that a downward penalty impact should be “considered.” TheCourt has considered the operator’s violation history, but, as explained, inperforming its independent review of that history, it rejects the merit of theperspective that it deserves a downward penalty adjustment for that factor, *asapplied in this instance*.

Asdescribed in greater detail above, it is true that in the past two years SolarSources has had a modest number of violations, with Ex. P 2 reflecting some 19violations over that period. However, just as the majority has noted, the Courtis to independently determine the relevant violation history and come to itsown conclusions about that history in evaluating that penalty factor. From theCourt’s perspective, the violation history does not especially aid theRespondent when considering this factor. The reason for this is theRespondent’s admission that it has had prior berm violations, apart from themonumental berm violation involved here. Those prior berm violations are not,in the Court’s independent evaluation, ancient history, as they occurred in2008 and 2010-2011, according to Respondent’s witness Mr. Fields, as describedabove. In the Court’s view, those relatively recent berm violations should havetriggered continued vigilance about the mine’s berms. While not within the pasttwo years of this violation, the Court does not consider them to have passed anexpiration date, as it were. Although the Secretary has apparently decided tolook at a two year period, as the majority has made clear, the Commission andits judges are not so constrained. The Court concludes that only a smalldownward penalty adjustment is due upon consideration of this factor. Further,that is more than offset by consideration of the other five penalty factors,each of which points in the opposite direction.

**The Court’sDetermination of an Appropriate Civil Penalty**

TheMajority has noted that: 

[i]n assessing a penalty *de novo*,a Judge is neither bound by the Secretary's Part 100 regulations nor by theoriginally proposed penalty. *See Sellersburg Stone Co. v. FMSHRC*, 136F.2d 1147, 1151-52 (7th Cir. 1984),*aff'g* 5 FMSHRC 287 (Mar. 1983)(“*Sellersburg*”).Judges are accorded broad discretion to assess civil penalties, but theirdecisions must reflect proper consideration of the section 110(i) penaltycriteria.  *Westmoreland Coal Co*., 8 FMSHRC 491, 492 (Apr. 1986). TheJudge must provide an explanation if the penalty assessment substantiallydiverges from the Secretary's proposed regular assessment.[27]*Sellersburg,*5 FMSHRC at 293. The Commission reviews the Judge's penalty determination underan abuse of discretion standard. *Douglas R. Rushford**Trucking*, 22FMSHRC 598, 601 (May 2000). 

*Solar Sources*,42 FMSHRC ___, slip op. at 4, 2020 WL 1890528at *3.

Referringto *Sellersburg*, the Commission stated that the Judge: 

must make [f]indings of fact on ***eachof the statutory criteria***[that] not only provide the operator with therequired notice as to the basis upon which it is being assessed a particularpenalty, but also provide the Commission and the courts . . . with thenecessary foundation upon which to base a determination as to whether thepenalties assessed by the judge are appropriate, excessive, or insufficient. 

*Id.*at**4, *3 (citing 5 FMSHRC at 292-93) (italics in original, bold added).

However,**the**majority then noted that “the findings and explanations relatingto a penalty assessment do not have to be exhaustive, [but] they must at leastprovide the Commission with a basis for determining whether the judge compliedwith the requirement to consider and make findings concerning the section110(i) penalty criteria.” *Id.* at 4, 10, n. 14, *3, 7, n.14 (citing *CanteraGreen,*22 FMSHRC 616, 621 (May 2000)). The majority also referred toCommission Procedural Rule 30(a) and its provision that Judges’ decisions“shall contain findings of fact and conclusions of law on each of the statutorycriteria and an order requiring that the penalty be paid.” *Id*. at 5, n.5, *4, n.5. *See also,*29 C.F.R. § 2700.30(a). 

Insubpart 3(c) “Special assessments,” and its “Guidance to Judges” in themajority’s opinion, it endorsed that a Special Assessment is a “litigationproposal.” As such, favorably considering “the agency's proposal for a highpenalty is subject to the Secretary's presentation of proof of facts warrantinga high penalty.” *Solar Sources*,42 FMSHRC ___, slip op. at 17, 2020 WL 1890528at *13.In taking that stance, the majority stated that the principle in *Sellersburg*regarding “substantial divergence” does not apply where a SpecialAssessment is used. In such instances, the majority instructs that “the entirefocus of a Judge's independent penalty inquiry must be on the factual findingsas they relate to the penalty criteria, rather than on the amount sought byMSHA.” *Id*. 

Thistranslates into the majority’s view that, in Special Assessments, “MSHA ‘bear[s]the ‘burden’ before the Commission of providing evidence sufficient in theJudge's discretionary opinion to support the proposed assessment under thepenalty criteria.’” *Id.*Then, the majority adds, “[w]hen a violation isspecially assessed, that obligation may be considerable.” *Id*.  

Indiscussing its Special Assessment guidance to judges, the majority againreferences the D.C. Circuit’s opinion in *American Coal*, 933 F.3d at 727,referring to that court’s remark that “MSHA did not bear any ‘burden’ withrespect to a penalty and backhanded MSHA's penalty assessment as if it wereunimportant – an impotent litigating position.” *SolarSources*, 42 FMSHRC ___, slip op. at 17,2020WL 1890528 at *13. The majority then explained that:

[i]t is necessary to understand,therefore, that when the Commission used the term ‘burden’ in *AmCoal*, 38FMSHRC at 1993, it did not do so in terms of a preponderance of proof standardof review. Instead, the Commission meant that, in seeking to sustain thelitigating position regarding a special assessment-that is, an especially largepenalty-the Secretary must present evidence to sustain, in the Judge'sdiscretion, the need for a large penalty.

*Id*.

In*Mining & Property Specialists,*a case in which the judge’sconclusion regarding operator negligence, which conclusion was supported bysubstantial evidence, the judge gave greater weight to the negligence factor,an action plainly permitted by Commission case law. 2011 WL 6326020 (Dec. 2011)(citing *Spartan Mining Co*., 30 FMSHRC 699, 724, 725 (Aug. 2008))(“*Spartan*”)(upholding judge's increase of Secretary's proposed penalty **by 711%, (seven hundredand eleven percent) from $3,700 to $30,000**, in which the judge gaveincreased weight to the factors of gravity and negligence and because the judgeexplained his disagreement with Secretary's conclusions as to gravity andnegligence and gave those factors increased weight). *Spartan*at *22.

Themajority, in its remand, noted *Spartan* with approval. The Majority addedthat “[i]t is not possible to enunciate a precise formula for recitation ofpenalty factors that would fit all cases. Consequently, as must be obvious, theevaluation of compliance with the requirement for an adequate review of allcriteria is case-specific.” *Solar Sources*,42 FMSHRC ___, slip op. at 6, 2020 WL 1890528at *5. Themajority added, “Each decision must be case-specific, and the Commission'sdecision turns on whether the Judge's exposition of the penalty factors permitsthe Commission to determine that the Judge has fully considered the penaltycriteria individually and in relationship to one another.” *Id.*

Allpenalty factors are not created equal. Especially in an egregious case as thisone, the negligence and gravity factors must dominant the penalty analysis. Thisonly makes sense.   For example, if a mine was a new operation and had nohistory, yet in short order it allowed a berm to deteriorate and the end resultwas an enormous accident with near fatal results, the impact of the history ofviolation, while considered, should be at the vanishing point.

Asthe Commission also stated in *Spartan*: 

[t]he judge [ ] adequately explainedthe bases for his decision to assess a higher penalty than originally proposed.We held in *Lopke Quarries, Inc.,* 23 FMSHRC 705, 713 (July 2001), **thata judge did not abuse his discretion by weighing the factors of negligence andgravity more heavily than the other four statutory criteria**. *Similarly,we hold here that it was certainly appropriate for the judge to raise thepenalty significantly based on his findings of extreme gravity andunwarrantable failure*. 29 FMSHRC at 486-87, (emphasis added). Accordingly,we hold that the judge was well within his discretion in assessing a penalty of$30,000 for the section 75.313(a)(3) violation. 

*Spartan*,2008 WL 4287784 at *23 (emphasis added) (Commissioner Young, joiningCommissioners Jordan and Cohen).[28]

TheCourt believes it has complied with this standard of penalty factor evaluation.  And, in particular the Court believes that it has carried out this task *both*from examining the criterion individually and examining the factors *inrelationship to one another*. Thus the Court’s evaluation of the operator’shistory independently looked at that issue from both perspectives, concludingthat no penalty reduction is due for that factor.  

Thisapproach is in line with the majority’s direction that the Court is “toexercise his responsibility to conduct *an independent and reasoned analysis*,*using the record evidence*.” *Solar Sources*,42 FMSHRC ___, slip op. at 22, 2020 WL 1890528at *16, (emphasis added). 

That analysis is to includefindings of fact or meaningful explanation on each of the statutory penaltycriteria, and particularly in this case, to make findings regarding theoperator's history of violations and the operator's actions related toattempting to achieve rapid compliance after notification of a violation,consistent with the requirements of Commission Procedural Rule 30(a) andsection 110(i) of the Mine Act. The Judge should then reassess a civil penaltyin accordance with the established Commission precedent of *AmCoal I*. 

*Id*.

The Court believes thatin this decision upon remand it has carried out these responsibilities. 

Uponconsideration of the six statutory penalty criteria, and recognizing that theRespondent could have been subject to civil penalty up to $70,000.00, a figureavailable apart from the Secretary’s Special Assessment figure of $68,300.00,the Court assesses a civil penalty of **$69,000.00**. Thus, the Court hasfollowed the majority’s instruction that it is to exercise its ownresponsibility to conduct an independent and reasoned analysis, using therecord evidence.

**Summary**

TheCourt concludes that there has been substantial evidence to support itsconclusions about the facts surrounding the violation and the associatedspecial findings regarding the statutory penalty facts and the Court’s basisfor the penalty imposed. It is noted that in reviewing the judge's factualfindings supporting the consideration of the various penalty criteria, theCommission applies the substantial evidence test. *Hubb Corp*., 22 FMSHRC606, 609 (May 2000); *Douglas R. Rushford Trucking*, 22 FMSHRC 598, 601(May 2000). The Commission has also recognized that in reviewing a judge’spenalty determination, it need not come to the same conclusion as the judge,where it finds that substantial evidence supports the judge's finding.  *Sec.v. Coal River Mining, LLC*, 32 FMSHRC 82, (Feb. 2010), 2010 WL 594840, at*12. 

Themajority has expressed that the****test is “the Secretary’s presentation ofproof of facts warranting a high penalty,” which it then restated as theobligation for “the Secretary [to] present evidence to sustain, in the Judge'sdiscretion, the need for a large penalty.” Remand at 17, 2020 WL 1890528 at *13.These responsibilities, the Court has concluded, the Secretary has met *writlarge*. 

 

Theappropriateness of the penalty imposed can be highlighted with this example: Ifone were to hypothesize that all of the following obtained: a large mine,facing a penalty for which it is able to continue in business without effect,and with no significant violation history. Considering those assumptions, andthen adding that there was no good faith at all on the operator’s part and thatthe gravity was marked as highly likely, and the injury or illness that couldreasonably be expected to be fatal, and the violation as S&S and thenegligence as high, constituting an unwarrantable failure, it is the Court’sview that there can be no doubt that the consideration of those two factors,gravity and negligence, should be the dominant drivers of the penaltydetermination. Taking into account the impact of a modest recent violationhistory, but as the Court is not restricted to only the previous two years ofviolations, it has determined that the penalty should not be reduced on thatscore in light of the fact that the mine had prior berm violations. 

Perthe majority’s March 12, 2020 Decision remanding this matter to the Court,having carried out the instructions from that remand, the Court has reviewedits undisturbed findings regarding the gravity and negligence involved in thismatter. Further, it has undertaken the *independent review* of the otherfour statutory factors, namely the appropriateness of such penalty to the sizeof the business of the operator charged, the effect on the operator's abilityto continue in business, the operator's history of previous violations, and thedemonstrated good faith of the operator charged in attempting to achieve rapidcompliance after notification of a violation.  

TheCourt is appreciative of the majority’s admonition that all of the statutorypenalty factors must be considered and a rationale provided for the Court’sindependent conclusions about those factors. This close attention to each ofthe factors has borne fruit in this case. The Court should have looked moreclosely at the good faith factor in particular before issuing its initialdecision. Now having independently more completely examined that factor, theCourt realizes that the lack of good faith should have been discussed morefully, a correction made in this decision upon remand.

Asdescribed above, the operator is large and this is not contested. Similarly, ithas been conceded that, even when there were originally two penalties involved,*each* then with a proposed assessment of $68,300.00, the operator did notcontend that such penalties would have an effect on the operator's ability tocontinue in business. 

Interms of the operator’s violation history, the Court has concluded that nopenalty reduction is warranted, on the basis of that factor, because theoperator had previous berm violations, which violations the Court does notconsider to have been ancient. Further, speaking to the majority’s instructionsthat the Court is to consider the interrelationship between the penaltyfactors, the Court finds that both the gravity and the negligence weigh heavilyagainst awarding a reduction on the basis of the operator’s violation history. Inparticular, the Court notes that the Respondent admitted to being aware thatberms were a constant problem, requiring constant attention. Further, even ifone were to assume for the sake of argument that a reduction of some amountshould be awarded on the basis of a modest penalty history, the Court,employing the majority’s view that the interrelationship between the penaltyfactors should be considered, finds that the lack of any good faith more thanoffsets such a reduction.

Finally,addressing the factor of the demonstrated good faith of the operator charged inattempting to achieve rapid compliance after notification of a violation, theCourt has found, as described above, that there was no such demonstrated goodfaith. The Respondent’s own witness admitted that the actions they took afterthe berm collapse were brought about because  *it had**to take thoseactions*, per MSHA’s instructions. Accordingly, any reduction on that basisis undeserved and inimical to the meaning of the factor.   

Havingfound that the violation identified in Citation No. 9102704 was established andthat the Inspector’s evaluation of the gravity and negligence and his findingof unwarrantable failure and significant and substantial were demonstrated andthat no cognizable mitigation was advanced, the Court therefore finds, thatupon application of the statutory criteria, **a penalty of****$69,000.00is imposed.** Cognizant that, at the time of this violation, the maximumpenalty was $70,000.00, the Court does not believe that such an amount shouldbe reserved to fatalities, though in this instance a fatality would almostcertainly have resulted, but for the wise decision of Mr. Standish to takeself-help by leaping from the huge dump moments before it fell down the slopeto the slurry pit nearly 50 feet below. The Court finds that this violation was“especially egregious” for enforcement purposes. 

**ORDER**

It is hereby ORDERED that the **CitationNo. 9102704** in this decision is **AFFIRMED** as written. Respondent is **ORDERED**to pay the civil penalty in the total amount of **$69,000.00** within 30days of this decision. [29]

 

 

 

/s/William B. Moran

WilliamB. Moran

AdministrativeLaw Judge

 

** **

** **

**APPENDIX**

 

Thetruck involved. Photo reveals its undisputed large size by comparing it to theperson and cars in the photo. 

 

Photo showing where the truck ended up in the slurry pit, upsidedown.

 

 

 

Distribution:

MarkHeath,Esq.

SpilmanThomas &BattlePLLC300 KanawhaBoulevard,East

P.O.Box273

Charleston,WV25321-0273

 

EmeldaMedrano, Esq.OfficeoftheSolicitor

U.S.Department ofLabor

230 S. DearbornStreet,8thFloorChicago,IL60604

 

AliBeydoun,Esq.

OfficeoftheSolicitorUSDepartmentofLabor

201 12th St.South,Suite401

Arlington,VA22202-5450

 

AprilNelson,Esq.

OfficeoftheSolicitorUSDepartmentofLabor

201 12th St.South,Suite401

Arlington,VA22202-5450

 

MelanieGarris, Esq.

OfficeofCivil PenaltyCompliance,MSHA

U.S.Department ofLabor

201 12th StreetSouth,Suite401

Arlington,VA22202-5450

 

 

 

 

 

 

 

----

[1] The Commissionmajority consisted of Chairman Marco Rajkovich, and Commissioners Michael Youngand William Althen. Commissioner Arthur R. Traynor, III, joined Parts A and Bwith the majority but agreed *in result only* as to those two parts forthe purpose of this Court making “specific findings regarding the operator'shistory of violations and demonstrated good faith in achieving rapid complianceand for the Judge to assess a civil penalty.” *Solar Sources*, 42 FMSHRC ___,slip op. at 23-30,2020WL 1890528 at *17-24 (Commissioner Traynor, concurring and dissenting). CommissionerMary Lu Jordan dissented from the majority opinion in its entirety, concludingthat the Court’s penalty assessment should be affirmed. *Id.* at 31-39,*24-31 (Commissioner Jordan, dissenting).  

 

[2] While the Courtis embarrassed that it “fell far short,” there is some comfort that itsshortcoming has company. As the Commission noted in that regard, it “need notplow through a tedious review *of the dozens of remands* of penaltyassessments due to the failure of Judges to make the necessary findings.” *Solar Sources*, 42 FMSHRC ___,slip op. at 5,2020WL 1890528 at *4(emphasis added).

[3]As the Court made clear in its March 2018 initial decision findings of fact, InspectorNoel stated that for what remained of the berm, it was “mostly mud. It was amuddy consistency throughout the entire berm, like, kind of like slicing aTwinkie in -- with a knife, and once you slice the Twinkie, you can see theinside of the Twinkie. Kind of like the same thing with the berm here.” Tr. 64 Noelinformed that, using his hands, he examined the consistency of the bermmaterial, confirming its muddy makeup. Tr. 70. He added to that descriptionthat it was a “consistency [that] really reminds me of similar to cottagecheese. The texture of it, it’s kind of-- it’s got a little bit of lumpy mud init, but it’s -- it’s heavily saturated with water. ... it’s just real gooey,mushy. ... it was just a -- a real fine mud.” Tr. 71-72. Upon consideration ofall the evidence, the Court finds that in fact the berm material was asdescribed by the inspector.” 40 FMSHRC 462, at 465. Although the foregoinginformation in this footnote makes it clear enough just what the Court found,it is also noted that Inspector Noel expressed his view that when the berm was *initiallyconstructed* it was made of substantial material but that “[a]fter haulingthis slurry material that they were hauling to this dump, it landed -- theywould have spillage onto the berm, and that spillage would cause, you know, the-- the water that’s in that slurry would leach down into the -- the berm andweaken the berm. It would saturate the berm. So the berm really wasn’t at theconsistency of the slurry, but it was a -- of a muddy consistency and -- and itweakened the berm, as a result.” *Id.*at 465. Further, as also found bythe Court as fact, Inspector Noel explained that the material which is hauledand then dumped into the pit is “real soupy. ... if the [truck] operator wouldslam on the breaks real hard, it would slosh out.” Tr. 80. As the Courtremarked, relating to the inspector’s description, “[ *t*]*hisdescription is not in dispute*.” *Id.* at 466 (emphasis added). Withthese findings, the Court then expressed that, based on the testimony ofInspector Noel, which the Court found to have been derived upon his significantexperience and knowledge concerning berms and which testimony the Court alsofound to be credible, there were at least two significant shortcomings by themine operator at work in this instance. First, by dumping the soupy slurry mix,such activity worked to destabilize the berm. That action effectively pouredliquid over the berm, saturating it and in that process weakening it.  A secondshortcoming was the mine’s failure to be attentive to the truck hitting theberm, a second source of damaging its integrity. That action weakened the bermby damaging its cohesion. Thus, the mine was deficient by not retraining itsminers to stop that damaging practice. It also meant that the mine had torebuild the berm because of that damage to its integrity. The “muddy mixture”which the inspector also described as “mushy material,” and which he observedon both sides of the breached area, demonstrated that it had not been properlymaintained. 

[4] Per the headingfor subsection B, the majority states “The Judge Need Not Reconcile theDifferences Between His Penalty Analysis and the Secretary's Narrative Findingsfor a Special Assessment,” and per the heading for subsection C, the majoritystates “The Judge is Not Required to Reconcile His Reassessed Penalty with theAmount Proposed by the Secretary According to his Special AssessmentProcedures. *SolarSources*,42 FMSHRC ___, slip op. at 9-10, 2020 WL 1890528 at *6-7.

 

[5] The Majoritytook the opportunity to address a musing by the United States Court of Appealsfor the District of Columbia Circuit in that court’s *American Coal*decision,933 F.3d 723, 728 (D.C. Cir. 2019). Speaking to the DC Circuit’s “apparentimpression of an inconsistency in Commission law,” and feeling that “[i]t wasincumbent on the Commission to correct the [D.C. Circuit] court'smisapprehension of [the Commission’s] precedents and the operation of theSecretary's special assessment program,” the majority explained that thefederal “courts must understand the fundamental importance of the Commission's penaltydirectives-especially because the ‘two directions’ noted by the court *arenot* separate, divergent paths.” *Solar Sources*, 42 FMSHRC ___,slip op. at 10, 19,2020WL 1890528 at *8, 15.(emphasis in original). The majority’s clarification to address the D.C.Circuit’s “apparent impression of an inconsistency in Commission law” beginswith discussing the “fundamental distinction between regular and specialassessments.” *Id.* at 10, *8. They note that the Secretary’s penaltyproposal is not a starting point for the judge to use as a guidepost, whileacknowledging that a judge must explain a penalty which substantially divergesfrom the proposed penalty. *Id.* at 13, *10. These are not, the majorityexpresses, “divergent paths.” *Id*. at 10, *8. The substantial divergenceprinciple is in place in order to establish general uniformity in theassessment of penalties. However, the substantial divergence principle does notapply, the majority expresses, to *Special Assessments* because those arenot grounded “on the general transparency and consistency of MSHA’s process fordeveloping *regular assessment* proposals.”*Id.* at 12, *9 (emphasisin original).

 

“MSHA's regular penalty systemrepresents the agency's professional judgment on the relative importance of thefacts of violation and each of the penalty factors and sub-factors. ...[affording the mine operator with] a basis for determining how the penalty wascalculated.” *Id.* at 13, *10. Thus, the majority expresses that, incomparison with Special Assessments, the regular assessment procedure providesfairness and transparency in penalty assessments. The majority recognizes thatSpecial Assessments substantially increase penalties “in order to addressagency enforcement priorities.” *Id.*at *11. But the majority is criticalof this approach because it adds “points to the negligence and gravityelements, without accounting for other statutory penalty criteria orconsidering the specific facts of the violation.” *Id*. at 14, *11.

 

            Themajority also expressed that MSHA’s Program Policy Manual (“PPM”) does not curethe deficiencies it identifies with the Special Assessment process and,speaking to the Special Assessment narrative, they find fault with thatnarrative by “not explain[ing] *why* MSHA singled out this particularcitation for special assessment.” *Id.* at 16, *12. However, the Courtbelieves that some might conclude that the MSHA’s presentation of its view ofthe facts in the narrative itself could be construed as a self-evidentexplanation for the agency’s decision. 

 

Acknowledging that “[m]any Commissiondecisions state, directly or indirectly, that the Secretary's penalty proposalis not a baseline or starting point, while other decisions require Judges toexplain any substantial divergence from the penalty proposal of the Secretary,”the Majority stated these are not really “divergent paths, [as] they worktogether to preserve the credibility of the administrative scheme and avoid theappearance of arbitrariness. In their proper context, each of these principlesis correct. They are complementary approaches that serve the same importantobjective.” *Id.*at 11, *8. 

 

[6]Very briefly, atleast as the Court reads them, the majority’s expressions in this regard notethat the Secretary’s penalty proposals don’t bind the Commission, as itassesses penalties *de novo*, that a judge must make findings of fact foreach of the six penalty criteria and that a judge must explain any substantialdivergence from a regular penalty assessment, but *not* for SpecialAssessments. In reaching these conclusions, the majority included an extendeddiscussion of regular assessments and the “normative benefits” that suchassessments provide, as contrasted with the majority’s view of the deficienciesof Special Assessments. *Id*. at 10-21, *10-16.

 

[7] Part D from themajority opinion, covering pages 18 through 21 is not addressed in thisDecision Upon Remand, as Part D speaks only to the majority’s view that “theconcerns in the dissenting opinions [of Commissioners Traynor and Jordan] aremisplaced.” *Id.*at 18.

 

[8] Setting apartSpecial Assessments from the procedure employed when the Secretary utilizes itsproposed regular assessments, the majority stated that in the latter instances,the judge must provide an explanation if the penalty assessment substantiallydiverges from the Secretary's. Review in such regular assessment instances andsuch review is conducted under an abuse of discretion standard. *Solar Sources*, 42 FMSHRC ___,slip op. at 4,2020WL 1890528 at *3. 

[9] The idea putforth by the majority of considering how the “penalty criteria interplay withone another,” which they alternatively describe as the “juxtaposition” betweenthe penalty criteria, is new. The Court was unable to find a single Commissiondecision employing either of those terms in connection with penaltydeterminations. 

[10] Thisobservation is not in conflict with the majority’s expressions since they notedthat under section 110(i) of the Mine Act, “the Commission independentlyassesses a civil penalty de novo based on findings of fact and consideration ofsix penalty factors.” *SolarSources*,42 FMSHRC ___, slip op. at 3, 2020 WL 1890528 at *3 (emphasis in original).

 

[11] The text of theSpecial Assessment Narrative was not included in the Majority’s Decision.

 

[12] Although thetestimony at hearing refined the deficiency of the berm by explaining that itwas *the failure to maintain* the berm in the face of the deleteriouseffect of dumping of the slurry, such details about the *timing* of the deteriorationdo not undermine the essential charge. 

 

[13] While at thetime the Narrative was drafted, MSHA believed that “[t]he dump area had beenexamined within one hour prior to the accident and no hazardous conditions werenoted in the examination records,” as explained in this Decision Upon Remand,there was a very legitimate basis for that belief, and as also explained inthis Decision, had the Secretary moved to amend the section 104(d) order, OrderNo. 9102705, to conform to the evidence, based on the credible evidence ofrecord from Inspector Noel, that failure to conduct an adequate examinationwould almost certainly have been upheld. 

[14] Of course, theSecretary has the burden to establish the fact of violation and all relatedpenalty factors associated with the alleged violations. But, at this stage,this case is well beyond those issues as, per the remand, the Court is onlyaddressing good faith, history, size, and ability to continue in business.

 

[15]The Secretary’sCounsel did not agree with the Respondent’s view of the scope of good faith,believing that it applies to “efforts made before the citations were issued.” Tr.349.

 

[16] The Court helda recorded conference call with the parties on Wednesday, April 22, 2020 forthe purpose of making sure that it had not overlooked any contentions madeduring the hearing or in the parties’ post-hearing briefs regarding the fourpenalty factors the majority stated were insufficiently addressed in theCourt’s initial decision. Counsel for Respondent confirmed during thatconference call that in fact he never did identify such cases during thehearing, nor cite to such cases in his post-hearing briefs. However, he did tryto interject such a case citation during the call. The Court would not acceptthis attempt to supplement his brief as the opportunity had long since passed. Theconference call was transcribed and has been made a part of the officialrecord. 

[17] As alluded to inthe preceding footnote, *one* case was cited during the April 22ndconference call and the Court rejected the attempt to supplement Respondent’sbriefs, years later, with that cite. Beyond that, no case, in the Court’sestimation, can resuscitate the Respondent’s claim of good faith because thefacts from Respondent’s own witness refute it. 

 

[18] Respondent’sCounsel then asked of his witness the following extremely leading question: “Butbasically, what you've done, Mr. Atkinson, you-all have designed a system nowthat prevents what happened here of a berm collapse from occurring?”  To that,the witness only answered, “Yeah.” Tr. 349. The witness’s answer, while correctas to the way the question was posed, presents a very inaccurate portrayal ofthe circumstances surrounding Solar Sources post-accident actions. More will besaid about this *infra*as revealed through the testimony of Respondent’ssafety director. 

[19] Pertaining tothe good faith factor, the majority stated: “The Judge also erred in statingthat the parties had entered stipulations with respect to two penalty factors.40 FMSHRC at 495 n.15 ("[f]rom the parties' stipulations, it is noted thatthe factors of good faith and ability to continue in business did not impactthe penalty determination."). It is clear from the record that they *hadnot*entered into such stipulations. The parties’ joint stipulations have noreference at all to either good faith abatement or the impact of a $68,300penalty.” *SolarSources*,42 FMSHRC ___, slip op. at 8, 2020 WL 1890528 at *6.*The Court erred in its remarkthat there were stipulations on those two factors. There were not suchstipulations*. However, regarding one of those two factors, the Commissionthen added that “Solar Sources did not contend that payment of the penaltywould affect its ability to stay in business,” leaving the need to furtheraddress “the demonstrated good faith of the [operator] charged in attempting toachieve rapid compliance after notification of a violation.” *Id.*at 7and n.10. 

 

[20] Even as to thatexhibit, P-2, the majority commented that “[i]ronically, that exhibit reveals apositive compliance record in that the operator had not had a berm violation insix years and only two such violations in its entire history. It did not haveany unwarrantable failures in the 15 months preceding the citation. In fact,the operator had received only 19 citations under section 104(a) of the MineAct, 30 U.S.C. § 814(a), for which it was penalized a total of $13,276.” *Solar Sources*, 42 FMSHRC ___,slip op. at 7, n.8,2020WL 1890528 at *6, n. 8.In that regard, the majority stated that an operator’s past history ofsignificant violations should be considered in considering assessing higherpenalties. ...[and that] [b]y parity of reasoning, an operator's history of fewviolations is relevant in considering the assessment of higher penalties.” *Id.*at 7-8, n.9, *6, n.9.

 

[21] The Commissiondid seem to place a partial limitation on the appropriate breadth of thiscriterion, remarking that, “[t]he appropriate weight, if any, to be attached bythe judge to older violations should be based on relevancy.” *Id.*at *557.The Court addresses the relevancy of the Respondent’s other berm violations inthis Remand Decision. 

[22] Respondent’sattorney challenged that this violation was specially assessed, believing thatit should not have been, in part because of the mine’s low violation history. Tr.31- 32. Per the majority opinion, the Court’s consideration of the mine’sviolation history is based on that history alone. That is to say, the Courtdoes not, in considering that factor (or any of the penalty factors), weigh, inthat evaluation, that the violation was specially assessed. 

 

[23] Mr. Fields,during a portion of his career, had been an MSHA inspector. Tr. 486.

[24] As this Court foundin its initial decision: “It is also worth noting that the issue is not whetherthe berm originally was made of shot rock; the Secretary agrees that, asoriginally constructed, it was likely substantial and made from shot rock.Rather, it’s a question of whether it was properly maintained or allowed todeteriorate, *with the Court finding that the latter occurred*.” *Id*.at 492 (emphasis added).

[25] The Court madean email inquiry with the Commission’s docket office in search of theunderlying documents for the *Sellersburg*dockets. The docket officeinformed that no such documents were available, being advised that “e-CMSdoesn’t go back that far. Nor does CTS for that matter. ... the petitions for allof dockets that old have been destroyed. The Commission’s docket retention isonly six years after disposal.” Email response from Docket Office April 27,2020. 

[26] It is notedthat Commissioner Jordan, in her dissent, took issue with this expression bythe majority, stating:

 

Regarding theoperator's history of violations, in *Sellersburg*, the Secretary hadentered an exhibit into evidence indicating the number of violations chargedand penalties for violations paid during the relevant two-year period. *SellersburgStone Co*., 5 FMSHRC 287, 294 (Mar. 1983). The Commission determined thattherefore the operator had at least a moderate history of previous violations. *Id.*In this case, the Secretary entered a similar exhibit into evidence, Ex. P-2, to which the Judge referred when referencing the operator's violation history.Solar Sources has never challenged the accuracy of this information. Althoughmy colleagues assert that the Commission cannot make its own findings on thisfactor, slip op. at 8, I conclude that, given that there remains no factualdispute regarding the violation history, the parties' disagreement as to thesignificance of the uncontroverted evidence is not a reason to remand the case.

 

*SolarSources*,42 FMSHRC ___, slip op. at 33, n. 5, 2020 WL 1890528 at *26, n.5.

[27] One needs to beacutely aware of the context for this quote in the Majority’s Remand. Both inthis quote and where the “substantially diverges” phrase appears a second timein the Remand, the Majority is speaking about a *regularly assessed*penaltyand doing so as a baseline explanation of the penalty proposal process. *See**Solar Sources*, 42 FMSHRC ___,slip op. at 13,2020WL 1890528 at *10.There was *no*proposed**regular assessment in this case and, forthe reasons explained, it is not the affair of the Commission to direct theSecretary as to which procedure he decides to employ, regular or SpecialAssessments, in proposing penalties.  

[28]“The judge found that Spartan violated section 75.313(a)(3) because ForemanSada did not order his crew to retreat from the working section during the minefan stoppage. ...He determined that “[i]f McNeely had been withdrawn from theworking section, instead of being allowed to repair an electrical cable whilemine fan power was lost, he would not have been electrocuted.” ... Although thejudge disagreed with the Secretary’s conclusion that the violation was notS&S, he was not authorized to modify the order. ... The judge found thatthe gravity of the violation was “extremely serious” because permitting mineoperations to continue during the hazardous period of no mine ventilationexposed eight miners to serious or fatal injuries.*...*The judgeconcluded that the violation was properly designated as a result ofunwarrantable failure because Sada’s failure to withdraw the miners from theworking section constituted reckless disregard of safety procedures. The judgeassessed a penalty of $30,000, instead of the $3,700 proposed by the Secretary,[**a 711% penalty increase**] because of the grave nature of the violationand the reckless and conscious failure to withdraw miners from the workingsection. *Spartan* at *4 (citations omitted) (emphasis added).

 

[29]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.