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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933/ Fax 202-434-9949

August 17, 2022

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

COVOL FUELS NO.3 LLC, 

 Respondent

CIVIL PENALTY PROCEEDING

Docket No. KENT 2022-0040

A.C. No. 15-19702-549694

Mine: Straight Creek Mine

DECISION DENYING MOTION TO APPROVE 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 the

Motion to Approve Settlement of the citation involved in this matter. The parties move to 

modify the citation, as stated below. The penalty would be reduced by 78%, from the original

assessed amount of $3,546.00 to $796.00. As the Motion does not meet the Commission’s 

requirements for approval of settlements, per its decisions in The American Coal Co., 40 

FMSHRC 983 (Aug. 2018) (“AmCoal”) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 

2018), the Motion is DENIED.

Citation 

Number

Proposed 

Penalty

Settlement 

Amount

Modification

9233080 $3,546.00 $796.00 Reduction in the 

likelihood of 

occurrence from 

“Occurred” to 

“Reasonably 

Likely”

Totals $3,546.00 $796.00 Seventy-Eight 

(78%) Percent

Penalty

Reduction
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Citation No. 9233080 was issued on December 16, 2021 for a violation of 30 C.F.R. 

§75.202(a). Titled “Protection from falls of roof, face and ribs,” the standard specifies that “[t]he 

roof, face and ribs of areas where persons work or travel shall be supported or otherwise 

controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or 

rock bursts.” 30 C.F.R. §75.202(a).

The citation read:

The mine operator is not fully controlling the mine roof to protect person from falls 

of the roof. When checked the mine roof has collapsed between the crosscuts 20 

and 21 along the# 6 entry of the primary escapeway. This roof fall is approximately 

20 feet in width and 35 feet in length and 9 feet in thickness. This citation is being 

issued in conjunction with 103k order# 9233079. 

Standard 75.202(a) was cited 4 times in two years at mine 1519702 (4 to the 

operator, 0 to a contractor).

Pet. for a Civil Penalty at 16.

For the gravity of the violation, the likelihood of injury or illness was marked by the 

inspector in his evaluation to have “occurred,” with the injury or illness reasonably expected to 

be “fatal,” affecting one person. Id. The violation was found to be significant and substantial. 

Id. Negligence was found to be moderate. Id. A 103(k) Order, No. 9233079, was not included 

in the record, nor was the abatement document for the violation. The latter action to terminate 

was due four days after the issuance of the citation, on December 20, 2021. Id. Both these 

documents are essential for the Court to make an informed review of the Motion, per section 

110(k) of the Act.

The Secretary moves to modify the citation, changing the likelihood from “occurred” to 

“reasonably likely,” supplying the following in support:

Basis of compromise: A reduction in the likelihood of an injury or illness to occur.

There are factual disputes regarding the likelihood of an injury producing event.

The Respondent asserts it was unlikely for an accident to occur that would result in 

any illness or injuries. The Respondent argues that no injury or illness occurred as 

a result of the cited condition. The Respondent further argues that the unplanned 

roof fall was in an area where miners do not normally work or travel, that no one 

was working at the time the unplanned fall occurred and that page 2-3, of PH20-I3, MSHA Citation and Order Writing Handbook, clearly states that occurred can 

only be checked when an injury or illness has actually occurred. Therefore, the 

Respondent concludes it was unlikely for an accident to occur that would result in 

any illness or injury given the aforementioned facts. For the purpose of settlement, 
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the Petitioner proposes, and the Respondent accepts a reduction in the likelihood of

occurrence from “Occurred” to “Reasonably Likely”. The parties have discussed 

the citation and propose a revised penalty of $796.00, which is consistent with the

penalty table found in Part 100, 30CFR.

Mot. to Approve Settlement at 3.

Analysis

This case presents a most unusual assertion. To begin, one must first comprehend the 

enormity of the roof fall – a roof collapse in the primary escapeway which was approximately 20 

feet in width, 35 feet in length, and 9 feet in thickness. These figures evince the enormously large 

roof fall. A fraction of that fall of roof would’ve killed anyone who happened to be at that location 

when it occurred. 

The Motion seeks to reduce the inspector’s gravity evaluation down from “Occurred,” 

bypassing “Highly Likely,” and arriving at “Reasonably Likely,” as the designation. The 

Respondent presents two arguments in support of reducing the penalty by 78% from $3,546.00 

to what the Court views as a non-incentivizing penalty amount at $796.00. One argument is 

that it was unlikely for an accident to occur that would result in any illness or injuries. This 

contention rests upon the fact that that the fall occurred in an area where miners do not normally 

work or travel, and that no one was working at the time the unplanned fall. The second 

argument is that MSHA can’t designate a violation as “Occurred” unless an injury or illness 

“actually occurred.” The Motion claims there are “factual disputes regarding the likelihood of 

an injury producing event,” even though Respondent’s arguments are not factual disputes but 

rather disagreement as to the legal interpretation of the facts. Neither argument supports the 

“Reasonably Likely” gravity designation. 

The first contention – that the fall was in an area where miners do not normally work or 

travel, and that no one was working at the time the unplanned fall, runs afoul of well-established 

case law that a violation must be considered in the context of continued normal mining 

operations. An evaluation of the reasonable likelihood of injury should be made assuming 

continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 

1985). “[T]he gravity determination requires a predictive inquiry into whether the violation is 

reasonably likely to result in a reasonably serious injury, see Secretary of Labor v. Mathies Coal 

Co., 6 FMSHRC 1, 3–4 (Jan. 1984), a prediction which may assume ‘continued normal mining 

operations,’ U.S. Steel Mining Co., 6 FMSHRC at 1574.” Rex Coal Co., v. Sec’y of Lab., Mine 

Safety & Health Admin., 630 F. App’x, 359, 363 (6th Cir. 2015). “An S&S determination must 

be made at the time the citation is issued ‘without any assumptions as to abatement’ and in the 

context of ‘continued normal mining operations.’ Paramont Coal Co., 37 FMSRHC 981, 985 

(May 2015).” Mach Mining, 40 FMSHRC 1, 6 (Jan. 2018).
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As to the second argument, that the Secretary may not designate a violation as 

“occurred,” under these circumstances, the Respondent looks to MSHA’s Citation and Order 

Writing Handbook. U.S. Dep’t of Lab., Mine Safety and Health Admin., Citation and Order 

Writing Handbook, PH20-I-3 (Dec. 2020). (Handbook). It is true that the Handbook states that 

“occurred” can only be checked when an injury or illness has actually occurred. Handbook 

PH20-I-3 at page 2-3. Since no injury or illness actually occurred as a result of the cited 

condition, Respondent asserts that gravity box designation may not be checked. Instead, the 

Secretary and Respondent agree to reclassify the gravity as “reasonably likely” to occur. 

However, this rationale doesn’t square with the requirement of the cited standard, 30 

C.F.R. §75.202(a), which specifies that “[t]he roof, face and ribs of areas where persons work or 

travel shall be supported or otherwise controlled to protect persons from hazards related to falls 

of the roof, face or ribs and coal or rock bursts.” Clearly, and with a staggeringly large failure, 

the roof in this instance was not supported or otherwise controlled, and in that safety-enforcing 

sense, the gravity occurred. The gravity of the violation should not turn on whether the mine 

operator had the sheer luck of no miner being at that location at that moment of inundation. If 

that were the test, the agreement of the parties to designate the gravity as ‘reasonably likely’ 

would not make sense either – no one was injured when the collapse occurred, so following the 

line of reasoning regarding ‘occurred,’ it was not ‘reasonably likely’ either and by that thinking

‘no likelihood’ should have been the designation. 

The Respondent’s unusual line of reasoning has been rejected. See, e.g., Clintwood 

Elkhorn Mining Co., 38 FMSHRC 458, 466 (Mar. 2016) (ALJ), upholding the inspector’s 

determination an injury reasonably expected to be “fatal” and “occurred” when a miner received 

abrasions and bruising in a runaway truck accident. The inspector “designated the injury as 

reasonably expected to result in a fatality because this type of accident -- a runaway truck -- could 

have resulted, and had resulted, in fatalities in the past.” Id.

“As a general proposition, rules of statutory construction can be employed in the 

interpretation of administrative regulations. See C. D. Sands, 1A Sutherland Statutory 

Construction, § 31.06, p. 362 (1972). According to 2 Am. Jur. 2d, Administrative Law, § 307 

(1962), ‘rules made in the exercise of a power delegated by statute should be construed together 

with the statute to make, if possible, an effectual piece of legislation in harmony with common 

sense and sound reason.’” Golden R Coal Co., 2 FMSHRC 446, 448-49 (Feb. 1980) (ALJ)

“It is also an established canon of statutory construction that a legislature’s words should never 

be given a meaning that produces a stunningly counterintuitive result—at least if those words, 

read without undue straining, will bear another, less jarring meaning.” 

United States v. O’Neil, 11 F.3d 292, 297 (1st Cir. 1993). The principle is that statutes should 

not be read to produce illogical results which are at odds with the statute’s underlying purposes. 

Consolidation Coal Co., 14 FMSHRC 956, 963 (June 1992). In the Court’s view, the 

construction urged by the Respondent produces such illogical results.
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Further, the MSHA Handbook on Citation and Order Writing represents internal agency 

guidance and policy directives that are not binding on the Secretary in his enforcement actions. 

See, e.g., Mingo Logan Coal Co., 19 FMSHRC 246, 250 (1997), aff'd Mingo Logan Coal Co. v. 

Sec'y of Labor, 133 F.3d 916, *3 (4th Cir. 1988). The standard takes precedence over the 

Handbook, so in determining likelihood, the relevant event is not the injury itself but the 

potentially injurious event that the standard exists to prevent, here, a massive roof collapse.

In addition, the Handbook is in tension with the wording of 30 C.F.R. §100.3(e), which 

specifies that “Gravity is determined by the likelihood of the occurrence of the event against 

which a standard is directed.” (emphasis added). The event against which 30 C.F.R. §75.202(a)

is directed – “falls of the roof, face or ribs and coal or rock bursts,” – did occur, even though no 

miner was injured by the fall. The standard takes precedence over the Handbook, so in 

determining likelihood, the relevant event is not the injury itself but the potentially injurious event 

that the standard exists to prevent, a roof collapse which in this instance would clearly be fatal.

That the mine operator should be able to have a 78% reduction in the penalty assessed 

resting entirely that no one died is repugnant to the overarching principles of the Mine Act and 

the Secretary’s duty to take care of the safety and health of our Nation’s miners. Permitting 

Respondent to avoid the higher penalty amount for the roof fall because no miners were actually 

injured also frustrates the deterrent aims of the civil penalty system. One of Congress’ central 

goals for the Mine Act’s civil penalty scheme was to ensure “effective and meaningful 

compliance” by imposing penalties “of an amount which is sufficient to make it more 

economical for an operator to comply with the Act’s requirements than it is to pay the penalties 

assessed and continue to operate while not in compliance.”1 In the Court’s view, the $796.00 

hand slap does not accomplish Congress’ goal.

Beyond the remarks above, the Motion does not meet the Commission’s test for review 

of settlements because, even under its nonintuitive definition of ‘facts,’ the motion is deficient. 

This is because, at bottom, the Respondent is making a legal, not a factual, argument, about the 

proper evaluation of the gravity of the violation. The first two elements of the Commission’s test 

for review of settlements are always present, because without them no motion could be 

presented. Those are: the amount of the penalty proposed by the Secretary, and the amount of 

the penalty agreed to in settlement. Because no agreed-upon ‘facts’ have been offered, but rather 

only the legal argument that one cannot designate the injury as ‘occurred’ unless there has been 

an injury, the Motion is deficient. 

There are other issues with the settlement motion. The citation was issued in conjunction 

with a 103k order, Number 9233079. In carrying out its responsibilities under Section 110(k) the 

Court should be able to view this relevant document. In addition, the official record does not 

include the termination document associated with the citation. Both documents constitute part of 

1 S. Rep. 95-181, 41 (1977). 
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the official record for this matter, and even under the Court’s limited purview, it should be able 

to view these essential parts of the record. They are to be part of the public record, not hidden 

from view. 

Respondent’s claims about miners’ absence in the area – no miners were working in the 

area at the time of the roof fall, and miners do not typically work or travel in the area where the 

roof fall occurred – amount to an ersatz “redundant safety measures” argument, rejected by 

federal courts.2 Miners avoiding the area do not absolve Respondent of its obligation to follow 

all safety standards.

2 Federal case law is clear that redundant safety measures are not to be considered in evaluating a 

hazard. For example, in Knox Creek Coal, 811 F.3d 148 (4th Cir. 2016), that Court observed: 

“[i]f mine operators could avoid S & S liability—which is the primary sanction they 

fear under the Mine Act—by complying with redundant safety standards, operators 

could pick and choose the standards with which they wished to comply.”...Such a 

policy would make such standards “mandatory” in name only. It is therefore 

unsurprising that other appellate courts have concluded that ‘[b]ecause redundant 

safety measures have nothing to do with the violation, they are irrelevant to the [S 

& S] inquiry.’ Cumberland Coal, 717 F.3d at 1029; see also Buck Creek, 52 F.3d 

at 136.

Knox Creek Coal, 811 F.3d 148, 162 (4th Cir. 2016).

Regarding this issue, in Consolidation Coal, 895 F.3d 113, (D.C. Cir. 2018), the D.C. 

Circuit, referring to its decision in Cumberland Coal Resources, LP v. Federal Mine Safety & 

Health Review Commission, 717 F.3d 1020 (D.C. Cir. 2013), noted that it:

interpreted the statutory text to focus on the “nature” of “the violation” rather than 

any surrounding circumstances. More to the point, the court held that 

“consideration of redundant safety measures,”—that is, “preventative measures that 

would have rendered both injuries from an emergency and the occurrence of an 

emergency in the first place less likely”—“is inconsistent with the language of 

[Section] 814(d)(1).” Id. at 1028–1029. 

Id. at 118-119. 
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The Court has considered the motion in the context of comparing it with the 

Commission’s AmCoal decision and finds that it does not meet that decision’s standard of 

review. Accordingly, the motion to approve settlement is DENIED. 

___________________

William B. Moran

Administrative Law Judge

Distribution:

Gary W. Oliver, Conference & Litigation Representative, U.S. Department of Labor, MSHA

3837 S. US Hwy 25E, Barbourville, KY 40906 oliver.gary@dol.gov

Eric S. Lewis, Covol Fuels No. 3 LLC, Box 853, Pineville, KY 40977

eric@covolfuel.com