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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

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

Washington, DC 20004

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

May 2, 2023 

DECISION APPROVING SETTLEMENT

 

Before: Judge Moran

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

Section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a 

Motion to Approve Settlement and has set forth the factual basis for the proposed penalty. The 

Respondent has agreed to the proposed penalty amounts. As reflected in the table below, the 

originally assessed amount for the citations at issue was $19,503.00 and the proposed settlement 

amount is $13,773.00. 

Citation/Order

MSHA’s 

Proposed 

Penalty

Settlement 

Amount Other modifications to citation/order 

9258018 $774.00 $349.00 Modify Negligence to Low

9580404 $840.00 $407.00 Modify Negligence to Low

9258023 $774.00 $349.00 Modify Negligence to Low

9257972 $563.00 $234.00

Modify Persons Affected to 1, down from 

7 affected, asserting only one miner would 

be expected to slip and fall; 

58% reduction in the penalty

9580420 $234.00 $234.00 None

9580423 $1,358.00 $610.00 Modify Negligence to Low; 55% 

reduction in penalty

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner

 v. 

IRON CUMBERLAND, LLC,

 Respondent

CIVIL PENALTY PROCEEDING

Docket No. PENN 2023-0007

A.C. No. 36-05018-564091 

Mine: Cumberland Mine
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9580424 $407.00 $407.00 None

9580425 $349.00 $133.00 Modify Injury or Illness to Unlikely, Modify 

Significant and Substantial Designation to No

9256357 $1,156.00 $1,156.00 None

9256358 $1,156.00 $1,156.00 None

9256359 $563.00 $407.00 Modify Persons Affected to 5

9580430 $1,358.00 $1,358.00 None

9581721 $1,471.00 $296.00

Modify Injury or Illness to Unlikely, 

Modify Significant and Substantial 

Designation to No; 80% reduction in 

penalty

9580436 $2,573.00 $1,156.00 Modify Negligence to Low; 55% reduction 

in penalty

9257973 $481.00 $215.00 Modify Negligence to Low; 55% reduction 

in penalty

9580439 $273.00 $133.00 Modify Negligence to Low; 51% 

reduction in penalty

9581722 $3,841.00 $3,841.00 None

9580802 $518.00 $518.00 None

9580803 $518.00 $518.00 None

9580806 $296.00 $296.00 None

TOTAL $19,503.00 $13,773.00 

The Court has considered the Secretary’s Motion and approves it solely on the basis of 

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

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

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

interpretation of section 110(k) of the Mine Act. Under those decisions, the Court’s role in 

reviewing settlement motions is circumscribed by those decisions, with the result that 

reasonable inquiry by the Court is not permitted. 

For example, were it permitted to make inquiry, the Court would have questions 

regarding the claim in the motion with respect to Citation No. 92580404, as it implies that the 

inspector would be obligated to have seen the cited hazards shortly after the preshift 

examination, a patently unreasonable proposition. The motion asserts that the missing sliding 

guard and the damaged cutting wheel both could have occurred subsequent to the preshift exam. 

That both issues would exist pushes plausibility. Inspectors, aware that the absence of a preshift 

exam violation has been frequently invoked of late by mine operators, should consider whether a 

citation may be in order for inadequate preshift exams. 

In fact, to his credit, the issuing inspector for a different violation, Travis Hamrick, did 

just that, citing the mine operator in Citation No. 9258023, for failing to note multiple hazardous 

conditions along the 75 Headgate longwall belt. That alleged, but now-admitted, inadequate 
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preshift was associated with the issuance of two other citations flowing from the inadequate 

exam. Though the inspector’s citation made it clear that all three citations were related, the 

operator asserts again that the inspector did not observe the conditions at the time of the preshift 

exam itself. The Court lauds the MSHA inspectors for their efforts in protecting miners.

There are other, troublesome, results in the motion. For example, in Citation No.

9580423, the now-admitted violation involved a failure to provide a clear travelway of at least 24 

inches on both sides of the 76 Tailgate belt. The standard invoked, 30 C.F.R. §75.1403, the 

statutory ‘Other Safeguards’ provision, has been cited 82 (eighty-two) times at this mine in the 

past two years. The motion’s resulting 55% reduction in the penalty is based upon designating

the negligence from moderate to low. But low negligence anticipates “considerable mitigating 

circumstances.” The justification offered is that the mine had placed a pump in the area. If that 

is sufficient to constitute considerable mitigation, that is a low bar to meet such a classification. 

Although the Court could discuss other reductions in this motion, as a last example, 

Citation No. 9581721 involved a now-admitted violation of the mine’s ventilation plan. That 

plan, Inspector Stephen A. Wilt noted, requires that all sprays on the longwall stage loader are to 

have a minimum opening of 3/32 inch, but the sprays at the discharge end of crusher in this 

instance only had openings of 1/16 inch. In short, the spray openings were more than two times 

insufficient. 

However, the Secretary buys into the assertion that it’s a small difference and as such it 

would not appreciably contribute to overexposure of dust. Motion at 6. That’s an interesting 

take from the Secretary of Labor, as her role is to protect miners from dust and given that the 

minimum opening is to be 3/32. It strikes the Court as disconcerting that the Secretary’s 

representative would essentially agree that the more than half shortcoming for the sprays is no 

big deal. That may not be so comforting to the miners who have to inhale the dust. 

And it is problematic that the Secretary’s attorney in effect says failure to comply with 

the minimum requirements imposed by MSHA transforms the violation from reasonably likely to 

unlikely to result in injury, and this even though it is indisputable that lung impairments for 

miners is an incremental consequence of dust exposure and that this mine has been cited 43 

(forty-three) times for violating this standard in the past two years. Such a stance, to this Court, 

seems inimical to the Secretary’s role of protecting the safety and health of miners. It also seems 

fair to ask whether reducing the regularly assessed penalty from $1,471.00 down to a mere 

$296.00, runs counter to Congress’ clearly expressed intent that penalties are to be of sufficient 

magnitude to cause mine operators to calculate that compliance is less expensive than noncompliance. In the Court’s view, a $296.00 penalty favors the latter approach. 

Accordingly, despite the Court’s expressed misgivings over some of particulars in these 

settlements, it is duty-bound to follow the Commission’s decisions on the subject of settlements.

For that reason, per the Commission’s decisions on the scope of a judge’s review authority of 

settlements, the “information” presented in this settlement motion is sufficient for approval.

WHEREFORE, the motion for approval of settlement is GRANTED.
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It is ORDERED that Citations listed in the table above are modified per that table and that the 

amounts for each citation are similarly reflected. 

It is further ORDERED that, within 30 days of this order, the operator pay the penalty of 

$13,773.00, a sum reduced from the original regular assessment amount of $19,503.00, and 

representing a 29% overall reduction in the penalty. Upon receipt of payment, this case is 

DISMISSED. 

 

 ____________________ 

 William B. Moran

 Administrative Law Judge

Distribution: 

Robert S. Wilson, Esq., Office of the Solicitor, Division of Mine Safety and Health, 201 12th

Street South, Suite 500, Arlington, Virginia 22202-5450. Email: Wilson.robert.s@dol.gov 

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

15222. Email: hmoore@fisherphillips.com