FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

July 7, 2023 

ORDER GRANTING MOTION TO CONTINUE, DEFERRING RULING ON MOTION 

TO BIFURCATE DOCKET, GRANTING CERTIFICATION OF QUESTION FOR 

INTERLOCUTORY REVIEW

 Respondent moved to continue the hearing scheduled for July 25, 2023, because of issues 

with witness availability for deposition and pending decisions on docket bifurcation and 

certification for interlocutory review of issues related to this Court’s denial of a proposed partial 

settlement. See Mot. to Continue, Docket No. WEVA 2023-0141, at 1–2 (June 23, 2023). The 

Secretary has similarly expressed such intent. See Email from Robert S. Wilson, Attorney for 

the Department of Labor, to Christopher A. Jannace, Attorney Advisor to the Honorable Judge 

Michael G. Young (June 26, 2023; 8:56 a.m. ET). 

 The Secretary previously moved to bifurcate two unresolved citations from four proposed 

for settlement. See S. Mot. to Bifurcate Docket, Docket No. WEVA 2023-0141, at 1 (June 12, 

2023); see also S. Mot. to Approve Partial Settlement, Docket No. WEVA 2023-0141, at 2 (May 

9, 2023). I denied the proposed settlement, not on the merits of the contentions in support, but 

on the Secretary’s continued misstatement of two cases I previously held inapposite to the 

Secretary’s asserted unfettered authority to remove S&S designations. See Order Den. Mot. to 

Approve Settlement & Striking Material from Mot., Docket No. WEVA 2023-0141, at 1–3 (May 

11, 2023). 

 Acknowledging the parties’ discovery issues, and for the reasons set forth below, I 

hereby GRANT Respondent’s motion to continue the hearing, DEFER ruling on the Secretary’s 

motion to bifurcate the docket pending certification and decision by the Commission on the 

motion to certify an issue in this case for interlocutory review, and CERTIFY for interlocutory 

review the question impeding consideration of the motion to approve settlement. 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner

 v. 

CONSOL MINING COMPANY LLC,

 Respondent 

 CIVIL PENALTY PROCEEDING

 Docket No. WEVA 2023-0141 

 A.C. No. 46-09569-568207 

 Mine: Itmann No. 5 
2

I. Continuance of This Matter is Appropriate and Will Best Facilitate the Efficient 

Resolution of the Issues Before Me.

The Secretary had requested that the citations proposed for settlement be bifurcated from 

those that appear to be progressing toward a resolution at hearing. The operator has now moved 

to continue those matters.

I generally disfavor continuance for unresolved discovery, but I have approved an 

amendment of the gravity and negligence findings, and it is important to ensure that the operator 

is not prejudiced by that decision. See Order Granting S. Mot. to Amend Pet., Docket No. 

WEVA 2023-0141, at 2 (June 16, 2023). Furthermore, a continuance may allow related matters 

to be tried together, eventually. I therefore find it appropriate to continue the matter and to defer 

ruling on the motion to bifurcate until such time as it appears that the issues either must or may 

not be tried together.

II. Certification of the Settlement Issue for Interlocutory Review is Appropriate.

I am skeptical of the need to certify for interlocutory review an issue that may not even 

be a question of law, let alone a controlling question. Furthermore, as explained below, there is 

no reason why the Secretary should not comply with an order to remove material that a tribunal 

has deemed to be offensive. As has been explained ad nauseum to the Secretary, these cases 

have no bearing on the questions before me and will not be considered. Therefore, their absence 

will not affect the resolution of any issue before me.

It would seem then that the more appropriate course would be to require the offending 

materials to be excluded, and to permit the Secretary to appeal the question of a tribunal’s 

authority to govern the proceedings before it after a final order has been issued. However, I do 

not have contempt or other power to enforce such an order.

I further note that the Secretary seems not to care whether a final adverse order is issued 

or not. In a recent case, she appealed an approved settlement, apparently having conflated 

“adversely affected or aggrieved,” in section 113(d)(2)(A)(i) of the Act, with “annoyed.” See S. 

Pet. for Discretionary Rev., Docket No. WEVA 2023-0092 (June 9, 2023) (“Pocahontas PDR”). 

While the Commission certainly does have the authority to grant review of important questions 

without a finding that a party has been adversely affected by a judge’s order, see 30 U.S.C. § 

823(d)(2)(B) (2023), it is telling that the Secretary sought, again, to impose her priorities on the 

Commission.

I will therefore CERTIFY the following questions to the Commission for interlocutory 

review, in order to break the impasse and permit this case to proceed toward resolution:

1. Whether a Commission Judge may exclude, strike from the record, and refuse to consider 

material that is scandalous, impertinent, irrelevant, or otherwise inappropriate; and

2. If so, whether the citations to Mechanicsville Concrete and American Aggregates of 

Michigan are excludable on that basis.
3

The parties are further ORDERED to continue coordinating with the Court to schedule a 

new hearing date and effect discovery as permitted by the procedural posture.

III. The Secretary’s Citation to Mechanicsville Concrete and American Aggregates of 

Michigan Is Not the Result of a “Good Faith” Disagreement, but Rather a Blatant 

and Obvious Misstatement of the Law.

While I have certified the question for interlocutory review, it is important for the 

Commission to understand why I have sanctioned the Secretary in this case. The Secretary has 

asserted that there is some relationship between Mechanicsville Concrete, Inc., 18 FMSHRC 877 

(June 1996), and American Aggregates of Michigan, Inc., 42 FMSHRC 570 (Aug. 2020), and the 

question pending review—i.e. “Whether the Secretary has unreviewable discretion to remove an 

S&S designation.” See Pocahontas PDR at 2–3. But the language cherry-picked from those 

decisions, and relied upon by the Secretary, cannot support this groundless argument.

For example, Mechanicsville Concrete noted that there is “no material difference between 

the Secretary’s [unreviewable] discretion on the one hand to vacate a citation . . . and his 

discretion on the other hand not to designate a citation as S&S.” Pocahontas PDR at 4 (citing 

Mechanicsville Concrete, 18 FMSHRC at 879). But as the Secretary well knows, there is a 

material difference here.

This case is not in an enforcement posture, where the Secretary has the discretion 

conferred by Congress and discussed at length in Mechanicsville Concrete. This case is before 

the Commission. And just as Congress granted the Secretary authority over enforcement, it 

granted adjudicatory authority to the Commission, not to the Secretary. See 30 U.S.C. § 830(k)

(“No proposed penalty which has been contested before the Commission shall be compromised, 

mitigated, or settled except with the approval of the Commission.”) (emphasis added). This is 

black-letter statutory law.

A close reading of Mechanicsville Concrete—not the thoughtless recitation of an out-ofcontext quote that the Secretary would have us consider as an “argument”—thus reveals a 

disturbing irony. Congress’ choices in crafting the Mine Act, and the Commission’s respect for 

the language and structure ordered by Congress are the very bedrock of that decision.

The respect is obviously not mutual. Just as the Commission affirmed in Mechanicsville 

Concrete that the Secretary’s authority to assess S&S in the first instance is an enforcement 

function, the Commission also has affirmed—in accordance with the clear language of the Act—

that the Commission, and not the Secretary, is responsible for approving settlements once a 

matter has been placed before the Commission. See The Am. Coal Co., 38 FMSHRC 1972 (Aug. 

2016) (“AmCoal I”); The Am. Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal II”).1

 The 

Secretary, though, continues to pretend as though this didn’t happen—that she had somehow 

1 It is worth noting that Mechanicsville Concrete was decided decades before the Commission 

decisions in the AmCoal cases, which as explained, infra, unquestionably control the review of 

settlements by the Commission and its judges.
4

prevailed in a matter that entitles her to cite as authority cases that have nothing to do with the 

Commission’s established standards for the approval of settlements.

The citation to American Aggregates of Michigan is even more problematic. The 

language cited by the Secretary, see 42 FMSHRC at 576, is clearly dicta. It appears in a section 

titled “Commission Review” that begins by reaffirming that “Congress vested the Commission 

with authority to approve settlements of contested assessments,” citing the language of the Act in 

section 110(k) of the Act and the Commission’s decision in AmCoal I. Id. at 575 (emphasis 

added).

In concluding in the next section of the opinion that the judge erred in not approving the 

settlement, the Commission led by clearly articulating the applicable legal standard, adopted in 

AmCoal I: “[T]he Commission and its judges consider whether the settlement of a proposed 

penalty is ‘fair, reasonable, appropriate under the facts, and protects the public interest.’” Id. at 

576. The Commission further noted that its review must ensure that “a judge’s approval or 

rejection of a settlement” must be “‘fully supported’ by the record, consistent with the statutory 

penalty criteria, and not otherwise improper.” Id. (quoting Black Beauty Coal Co., 34 FMSHRC 

1856, 1864 (Aug. 2012)).

The disposition nowhere mentions or relies upon the Secretary’s exercise of prosecutorial 

discretion but concludes instead that the Judge “erred by denying the settlement on the basis of 

an inappropriate legal determination on S&S based on an undeveloped record and in 

contravention to the facts presented by the parties in support of the settlement.” Id. at 577. That 

is the holding of the case, and any second-semester law student who could not recognize it as 

such would be well advised to seek another line of work.

There is, of course, more firmament supporting the unmistakable basis for the holding.

The Commission noted that the problem was that the Judge’s decision was “not supported by the 

facts presented by the parties” and “misapprehended the correct legal standard” established by 

the Commission in the AmCoal cases. Id. at 577.2

In case there was any doubt about the governing standard applicable to settlements, and 

the authority for administering that standard, the Commission concluded its disposition by 

observing, again, that

Primary authority to approve settlements of contested proposed assessments is 

vested by Congress to the Commission. 30 U.S.C. § 820(k); AmCoal I, 38 

FMSHRC at 1976. While such authority may be delegated to the Judges, the 

2 The Commission identified nine distinct factual circumstances related to the proposed gravity 

and negligence modifications, cited by the parties in the settlement motion, which should have 

been considered by the Judge, but were not. See 40 FMSHRC at 578–79. I concede the 

possibility that the Commission may find similarly deficient my evaluation of the facts in Knight 

Hawk and/or the other S&S cases I have rejected. But it is beyond question that my analysis will 

be assessed in accordance with the AmCoal standards.
5

Commissioners retain such full authority to approve such settlements. Accordingly, 

we find the proffered penalty to satisfy AmCoal.

Id. at 581.

This is all from a case that the Secretary cites as support for her position that she has 

unreviewable discretion to remove an S&S designation in settling a matter that has been 

contested before the Commission. Where? How? The continued misuse of this authority 

amounts to a breach of the ethical duty of candor to the tribunal or a woeful ignorance of the law 

and how it operates, either of which reflects a flagrant disrespect for the law and the tribunals 

entrusted with its administration.

The operative subtext here is that the Secretary has repeatedly tried to wrest from the 

Commission its statutory responsibilities under the Act. In addition to challenging the 

Commission’s authority to approve settlements in the AmCoal cases, the Secretary proposed a 

rule requiring the Commission to assess penalties in accordance with 30 C.F.R. Part 100, despite 

Congress’ clear grant of independent authority to assess penalties under the Act. See 30 U.S.C. § 

820(i); Criteria and Procedures for Assessment of Civil Penalties, 79 Fed. Reg. 44,494, 44,510–

11 (July 31, 2014).

The intransigence continues with the offense present in this case. We are at this point 

because the Secretary has disregarded an order. Told not to include citations to cases that, as 

fully explained above, are not merely irrelevant to the issue for which they are offered but 

offensive to constitutional order, she has insisted on citing the cases anyway.3

One case, Mechanicsville Concrete, stands for the inverse of the Secretary’s argument—

i.e., the Commission held that Congress’ assignment of responsibilities under the Mine Act must 

be respected. The other case, American Aggregates of Michigan, emphatically and 

unquestionably reinforces the Commission’s AmCoal standard for reviewing settlements under 

the Act and cannot be read to support the Secretary’s assertion that her authority must instead be 

unreviewable under any standard.

Perhaps the Secretary cites these cases because she has no real legal support for her 

position. A true “good faith argument” in favor of expanding the scope of her unreviewable 

discretion would rely on the D.C. Circuit’s decision in Twentymile Coal Co., 456 F.3d 151, 152 

(D.C. Cir. 2006). Of course, citation to Twentymile would spotlight the glaring incongruity 

between the pure enforcement action there and the settlement review authority present here.

3 It is not the Secretary’s claim of unreviewable discretion itself—which is on review before the 

Commission—that has offended this Court, but the continued citation to cases I have ordered not 

be proffered before me because the patently have nothing to do with the issue on review or the 

issues before me in any proposed settlement. The Secretary need not cite them in support of her 

position, because they have no persuasive force, but she has nonetheless consciously chosen to 

disobey my order not to cite them.
6

Such review would also be required to concede that far from the absence of standards 

under which review of purely prosecutorial decisions might be conducted, see id. at 155 (quoting 

Heckler v. Chaney, 470 U.S. 821, 830 (1985)), the Commission has spoken clearly in 

establishing such standards for the approval of settlements. And the Commission has also 

provided a standard for determining whether a violation of a mandatory health or safety standard 

is S&S.4

Beyond that, the Commission, and not the Secretary, is entitled to deference in the 

interpretation and administration of sections 110(i) and (k) of the Act, because Congress vested 

authority for the administration of those provisions in the Commission. And if ever there was a 

time when reflexive deference to the Secretary might have held some currency, that hour has 

passed.

The Supreme Court has narrowed considerably the requirement to defer to the Secretary’s 

interpretation of her regulations. See Kisor v. Wilkie, 139 S. Ct. 2400, 2414–18 (2019).5 

Further, there is a growing recognition of the separation of powers problems inherent with 

combined prosecutorial and adjudicatory authority. See Jarkesy v. SEC, 34 F.4th 446, 461 (5th 

Cir. 2022) (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)) (“Congress may grant 

regulatory power to another entity only if it provides an ‘intelligible principle’ by which the 

recipient of the power can exercise it.”).

The Commission does not have the latter problem, because Congress chose to separate 

enforcement from adjudication under the Act. The sanctity of that choice was recognized in 

Mechanicsville Concrete and its fulfillment has been evinced by the Commission’s decisions in 

the AmCoal cases and cases, including American Aggregates of Michigan, controlled by the 

standards enunciated therein.

4 I have not made an S&S determination in rejecting any proposed settlement. Instead, I have 

affirmed every settlement agreement removing an S&S designation for which the answer to the 

question, “Would the Secretary be entitled to summary decision on the S&S question based on 

the facts presented by the parties?” has been, “No.”

5 It should also be noted that section 110(k) was enacted to prevent abuses of discretion by the 

Secretary, specifically regarding unsupported settlements that did little to enforce the Act and 

protect miner safety. AmCoal I, 38 FMSHRC at 1976 (quoting Black Beauty, 34 FMSHRC at 

1862) (“[T]he Commission reaffirmed in Black Beauty that Congress authorized the 

Commission to approve the settlement of contested penalties in section 110(k) ‘[i]n order to 

ensure penalties serve as an effective enforcement tool, prevent abuse, and preserve the public 

interest.”); id. (quoting S. Rep. No. 95-181, at 44, reprinted in Senate Subcommittee on Labor, 

Committee on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 633 (1978)) (“‘By imposing [the] requirements’ of section 110(k), it 

‘intend[ed] to assure that the abuses involved in the unwarranted lowering of penalties as a 

result of the off-the-record negotiations are avoided.’”). The Secretary should not have the 

authority to interpret the provision to limit Commission review and enable the offensive 

settlements Congress intended to prevent.
7

It is thus abundantly clear that the Secretary’s defense of the continued citation to these 

cases is meritless. Aristotle said, “The law is reason, free from passion.” But citations to the 

law, free from reason, are simple nonsense. Once the lack of any reasonable basis for an asserted 

legal authority has been pointed out to an attorney by a judge, it is incumbent on that attorney to 

cease engaging in malpractice. The issue presented here is about more than the mere choices 

made in the citation of cases. While I have certified a question for interlocutory review, an

unasked and important question is, “Who determines the appropriate minimum standards of 

competence and conduct before a tribunal—the tribunal or a party litigant?”

Is there a county magistrate anywhere in the country who would not be offended by the 

mere suggestion of this inversion of authority? I doubt it, and if the Commission has any selfregard, it will rebuke the Secretary, as I have done, for her disregard for constitutional order and 

the rule of law, manifested in her continuing contempt for the authority of the Commission and

its decisions and orders.

 Michael G. Young

Administrative Law Judge

Attachments:

Appendix A: Secretary of Labor’s Motion to Approve Partial Settlement, Docket No. WEVA 

2023-0141 (May 9, 2023)

Appendix B: Order Denying Motion to Approve Settlement and Striking Material from 

Motion, Docket No. WEVA 2023-0141 (May 11, 2023)

Appendix C: Secretary of Labor’s Motion to Bifurcate Docket, Docket No. WEVA 2023-0141 

(June 12, 2023)

Appendix D: Secretary’s Motion for Certification for Interlocutory Review and Stay Pending 

Review, and Renewed Motion to Bifurcate, Docket No. WEVA 2023-0141 (June 20, 2023)

Appendix D: Motion to Continue, Docket No. WEVA 2023-0141 (June 23, 2023)

Appendix E: Decision Approving Settlement With Significant Reservations, Docket No. 

WEVA 2023-0092 (May 12, 2023)

Appendix F: Secretary’s Petition for Discretionary Review, Docket No. WEVA 2023-0092 

(June 9, 2023)
8 

Distribution:

Robert S. Wilson, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite 

401, Arlington, VA 22202-5450, wilson.robert.s@dol.gov 

D. Cass Trent, CLR, U.S. Department of Labor, MSHA, 4499 Appalachian Hwy, Pineville, WV 

24874, trent.david@dol.gov 

Jim McHugh, Hardy Pence LLC, 10 Hale Street, 4th Floor, P.O. Box 2548, Charleston, WV 

25329, jmchugh@hardypence.com 

Craig Aaron, CONSOL Energy Inc., 275 Technology Drive, Suite 101, Canonsburg, PA 15317, 

craigaaron@consolenergy.com 
1 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. WEVA 2022-0141 

Petitioner : Assessment Control No. 46-09569-568207 

: 

v. : 

: Mine ID: 46-09569 

Consol Mining Company LLC, : Mine: Itmann No. 5 

Respondent : Administrative Law Judge Young 

SECRETARY OF LABOR’S MOTION TO 

APPROVE PARTIAL SETTLEMENT

The Secretary of Labor files this Motion to Approve Partial Settlement, and in support 

hereof respectfully submits the following. 

1. This case involves six 104(a) citations of which four the parties have reached agreement

on a settlement. The two remaining citations (Nos. 9590300 and 9590301) are scheduled

for hearing July 25, 2023. The Mine Safety and Health Administration (“MSHA”)

proposed civil penalties for the citations at issue in accordance with the statutory penalty

criteria in § 110(i) of the Mine Act, 30 U.S.C. § 820(i). The penalties were regularly

assessed pursuant to 30 C.F.R. § 100.3

2. Respondent is the operator of the Itmann mine, Mine ID Number 46-09569, the products

of which enter commerce, or the operations or products which affect commerce within

the meaning of Section 4 of the Act.

3. Representatives for the parties have considered the alleged violations, the six statutory

criteria stated in § 110(i) of the Act, and other non-monetary considerations that fall

outside of § 110(i) but that support settlement, and propose to modify the penalties for the

settled citations as follows:

APPENDIX A
2 

Citation

MSHA’s 

Proposed 

Penalty

Settlement 

Amount Other modifications to citation

9569452 $1,869 $840 Modify negligence to low

9569457 $563 $133 Modify from reasonably likely to unlikely and 

from S&S to Not S&S

9569459 $133 $133 Modify negligence to none

9569462 $909 $407 Modify negligence to low

Total $3,474 $753

4. The legal standard for evaluating proposed penalty reductions is whether the proposed

reductions are fair, reasonable, appropriate under the facts, and protect the public interest.

American Coal Company, 40 FMSHRC 983, 987 (Aug. 2018) (citing American Coal

Company, 38 FMSHRC 1972, 1976 (Aug. 2016)).

5. Consistent with Commission precedent, the Secretary has evaluated the enforcement

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

this case on appropriate terms. See American Coal Company, 40 FMSHRC 983, 989

(Aug. 2018). Further, the Secretary has considered the deterrent value of the penalty and

obtaining a partial resolution to this matter. See American Coal Company, 40 FMSHRC

765, 766 n.1 (June 2018). A partial resolution of this matter in which some violations are

resolved is of significant enforcement value to the Secretary. The fact that the Secretary

modified the citations in this case is immaterial, as the Secretary’s evaluation of these

citations, as modified, remain preserved for future enforcement actions and are not

subject to potential vacatur or further downward adjustment after a hearing.

6. To assist the Commission in evaluating whether the proposed penalty reductions are fair,

reasonable, adequate under the facts, and in the public interest, the Secretary presents the

following information. As described more fully below with respect to each citation, and
3 

unless otherwise stated, the parties agree to disagree, and the proposed penalty 

modifications to these citations are acceptable to the parties in lieu of the hearing process.

A. Citation 9569452 – Respondent argues the condition was likely caused by

equipment tramming through the area and could have occurred at any time

without management’s knowledge. MSHA recognizes that condition could have

occurred at any time and without warning. The parties have agreed that the

citation shall be modified to low negligence with a recalculation of the penalty

from $1,869 to $840 per Part 100.

B. Citation 9569457 – Respondent argues that the cited area was infrequently

traveled because it was on the tight side of the belt, between the rib and the belt,

and was in an outby area. Respondent also argues that the cited section of rib was

not likely to fail, required significant force with a pry bar to pull and disputes the

statement that the section of rib was pulled with little effort. Taking into account

the uncertainty of the outcome of these issues at trial, the Secretary has decided to

exercise her discretion to modify the gravity to unlikely and not S&S as

recognized in Am. Aggregates of Michigan, Inc., 42 FMSHRC 570, 576-79 (Aug.

2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879-80 (June

1996)). The parties have agreed that the citation shall be affirmed as otherwise

issued and the penalty is recalculated to $133 per Part 100.

C. Citation 9569459 – Respondent would argue at hearing that the citation should be

vacated because the cited fire suppression system was in proper working

condition and free of any defects. The cited condition was the normal result of

mining in the face and the material would have been removed prior to taking the
4 

next cut. The parties have agreed to settle the citation by modifying the 

negligence to none. The penalty remains at $133. 

D. Citation 9569462 – Respondent argues that the cited materials resulted from a

combination of spillage, sloughage o the ribs and the scoop cleaning the area

creating windrows. The parties agree to modify the citation to low negligence

which lowers the penalty to $407 per Part 100.

7. In accordance with 29 C.F.R. § 2700.31(b)(2), the undersigned representative for the

Secretary certifies that Respondent has authorized the Secretary to represent that

Respondent consents to the granting of this motion for approval of partial settlement and

the entry of the proposed Order Approving Partial Settlement.

8. The parties submit that the foregoing penalty reductions are fair, reasonable, appropriate

under the facts, and protect the public interest.

9. The parties agree to bear their own attorney’s fees, costs, and other expenses incurred by

the parties in connection with any stage of the above referenced proceedings, including

attorney’s fees which may be available under the Equal Access to Justice Act, as

amended.

10. Except for proceedings under the Act, nothing contained herein is intended by

Respondent to constitute an admission of a violation of the Act or regulations. Further,

except for proceedings under the Act, nothing contained herein is intended by

Respondent to constitute an admission of civil liability under any local, state or federal

statute or any principle of common law.

11. Within 30 days of an order approving this settlement, the Respondent shall pay a penalty

of $753.00 at www.pay.gov or by sending a check made payable to “U.S. Department of
5 

Labor/MSHA” and mailed to the following address: P.O. Box 790390, St. Louis, MO 

63179-0390. 

WHEREFORE, the parties move the Administrative Law Judge to approve the above 

partial settlement agreement pursuant to 29 C.F.R. § 2700.31 and to order payment of the 

proposed penalty of $753.00. 

Mailing Address: Respectfully submitted,

Office of the Solicitor Seema Nanda

Division of Mine Safety and Health Solicitor of Labor 

U.S. Department of Labor 

201 12th Street, Suite 401 April E. Nelson 

Arlington, VA 22202-5450 Associate Solicitor for Mine Safety and Health

Jason Grover 

Counsel 

/s/Robert S. Wilson 

Robert S. Wilson 

Attorney 

UNITED STATES DEPARTMENT OF LABOR

Attorneys for Petitioner 

CERTIFICATE OF SERVICE

I hereby certify that on May 9, 2023, a copy of the foregoing Secretary of Labor’s Motion 

to Approve Partial Settlement was served by Electronic Mail on the following: 

James P. McHugh

jmchugh@hardypence.com

Craig Aaron

craigaaron@consolenergy.com

/s/Robert S. Wilson 

Robert S. Wilson

Attorney 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

May 11, 2023

ORDER DENYING MOTION TO APPROVE SETTLEMENT

AND STRIKING MATERIAL FROM MOTION

On April 25, 2023, a Commission ALJ issued an order noting with disapproval the 

Secretary’s ongoing citation to Mechanicsville Concrete, Inc., 18 FMSHRC 877, 880, 882 (June 

1996), as authority for her removal of the significant and substantial designations from citations 

during the settlement process. See Decision Approving Settlement with Significant 

Reservations, Docket no. PENN 2022-0129, at 4–6 (Apr. 25, 2023) (ALJ) (“Reservations”). 

Commission judges have routinely observed that Mechanicsville, and the also oft-cited American 

Aggregates of Michigan, Inc., 42 FMSHRC 570, 576 (Aug. 2020), cannot support the premise 

for which they have been cited.1

In this instance, though, the Judge correctly pointed out that parties have a duty not to 

misstate case law and that such misconduct has been affirmed as sanctionable under Rule 11 of 

the Federal Rules of Civil Procedure. See Reservations at 6 (citing Teamsters Local No. 579 v. B

& M Transit, Inc., 882 F.2d 274, 280 (7th Cir. 1989)). 

Following this, I issued an order on May 3 denying a motion to approve settlement, in 

which I said that the continued citation to these cases as authority for the removal of S&S 

designations falls below the minimum standards of practice before the Commission. See Order 

Accepting Appearance and Denying Motion to Approve Settlement, Docket No. WEVA 2023-

0071, at 7 (May 3, 2023) (ALJ). I said that a conference and litigation representative who 

submitted a motion with such citations would be barred from practice before me. Id.

1 See Decision Approving Settlement, Docket No. SE 2023-0046, at 2 (Apr. 24, 2023); Order 

Denying Settlement, Docket No. WEST 2022-0249, at 5 (Nov. 2, 2022) (ALJ); Order Denying 

Settlement, Docket No. WEST 2022-0267 & WEST 2022-0268, at 11 (Oct. 18, 2022) (ALJ).

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v. 

CONSOL MINING COMPANY LLC,

 Respondent 

 CIVIL PENALTY PROCEEDING

 Docket No. WEVA 2023-0141 

A.C. No. 46-09569-568207

 Mine: Itmann No. 5

APPENDIX B
I also said that there might be other consequences. I noted that an attorney should know 

better, and that such misstatements of the law by an attorney would be even more egregious. Id.

at 7 n.5. The supervising attorney for the Labor Department’s CLR’s was included in the 

distribution for the order.

On May 9, the Secretary filed with the Commission a Motion to Approve Partial 

Settlement, which again included the offending citations to Mechanicsville and American 

Aggregates. See S. Mot. to Approve Partial Settlement, Docket No. WEVA 2023-0141, at 3

(May 9, 2023). Not only is the recitation of these cases obviously inappropriate; it is 

impertinent. To my knowledge, no Commission judge has agreed with this mischaracterization 

of the law, and I have approved dozens of S&S removals without ever considering either case as 

authority for the removal. Rather than adhering to the clearly-expressed expectations of the 

Commission’s judges, the Secretary has continued to recite this non-sequitur any time an S&S 

designation is proposed for removal in a settlement.

An attorney for a government agency who misstates the law arrogates the properly 

conferred constitutional authority of others to determine what the law is. Like bridge scour, this 

subtle corrosion wears on the foundation of the rule of law and threatens the integrity of a 

structure upon which the public depends.

While the full array of sanctions under Rule 11 may not be available as a corrective, I 

have made clear that misleading use of precedent fails to meet the minimum standards of 

practice before the Commission. Its redress begins with a refusal to accept the unacceptable. By 

this order, I therefore STRIKE the reference to the cited cases and the assertions they 

purportedly support.

2

Striking material, and even professional sanctions, are appropriate responses to bad faith 

employment of case law. See Collar v. Abalux, Inc., 806 Fed. Appx. 860, 864 (11th Cir. 2020) 

(affirming sanctions where an attorney continually misstated the import of case law); KamdemOuaffo v. Huczko, 810 Fed. Appx. 82, 83 (3d Cir. 2020) (citing Fed. R. Civ. P. 12(f)) (noting that 

impertinent analysis of law is “plainly vulnerable to [] remedial strike”). Striking the impertinent 

matter from the motion is the least severe sanction I could impose in these circumstances. As 

with the Mine Act, those who persist in the discredited and misleading use of precedent should 

reasonably anticipate that their conduct will be deemed knowing or intentional and will be 

addressed with progressive severity until the practice is discontinued.

The motion to approve settlement is DENIED without reaching the merits. This denial 

will be reconsidered if the parties refile the motion without the noted language, see supra note 2. 

The parties should anticipate that the matters addressed by the motion will be resolved at hearing 

2 The language to be stricken from the motion reads: “Taking into account the uncertainty of the 

outcome of these issues at trial, the Secretary has decided to exercise her discretion to modify the 

gravity to unlikely and not S&S as recognized in Am. Aggregates of Michigan, Inc., 42 

FMSHRC 570, 576-79 (Aug. 2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 

879-80 (June 1996)).” Mot. at 3.
unless and until a motion that meets the standards of practice before the Commission has been 

filed.

 Michael G. Young

Administrative Law Judge 

Distribution: 

Robert S. Wilson, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite 

401, Arlington, VA 22202-5450, wilson.robert.s@dol.gov 

D. Cass Trent, CLR, U.S. Department of Labor, MSHA, 4499 Appalachian Hwy, Pineville, WV 

24874, trent.david@dol.gov 

Jim McHugh, Hardy Pence LLC, 10 Hale Street, 4th Floor, P.O. Box 2548, Charleston, WV 

25329, jmchugh@hardypence.com 

Craig Aaron, CONSOL Energy Inc., 275 Technology Drive, Suite 101, Canonsburg, PA 15317, 

craigaaron@consolenergy.com 
UNITED STATES OF AMERICA

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

WASHINGTON, DC

SECRETARY OF LABOR, ) CIVIL PENALTY PROCEEDING

U.S. DEPARTMENT OF LABOR (MSHA) ) 

Petitioner, ) Docket No. WEVA 2023-141 

) A.C. No. 46-09569-568207

v. ) 

) Mine: Itmann No. 5 

CONSOL MINING COMPANY, LLC, ) Mine ID: 46-09569 

Respondent. ) 

) The Honorable Judge Michael Young

SECRETARY OF LABOR’S MOTION TO BIFURCATE DOCKET

The Secretary moves that the Administrative Law Judge issue an Order bifurcating this 

docket into two dockets so that the case can proceed to hearing on the two unresolved citations in 

the docket and so the Secretary can pursue an appeal of the May 11, 2023, Order Denying 

Motion to Approve Partial Settlement and imposing sanctions issued by the ALJ. 

1. This docket contains six 104(a) citations. The parties reached a settlement agreement

resolving four of the citations. The parties have not reached settlement of the two remaining 

citations, Nos. 9590300 and 9590301. A hearing is scheduled for July 25, 2023. The parties are 

engaged in ongoing discovery and hearing preparation for the two unresolved citations. 

Depositions are scheduled for June 28 and 29. The Secretary recently filed a motion to amend 

the petition seeking to increase the gravity and negligence findings for the two unresolved 

citations and to seek correspondingly increased penalties. (See Secretary of Labor’s Motion to 

Amend Petition dated June 6, 2023) 

2. The Secretary filed a Motion to Approve Partial Settlement on May 9, 2023, seeking

approval of the penalty reductions agreed to by the parties on the four settled citations. The 

Administrative Law Judge issued an Order Denying Motion to Approve Settlement and Striking 

APPENDIX C
2

Material from the Motion dated May 11, 2023. That Order denied the motion to approve partial 

settlement, imposed sanctions on the Secretary and threatened additional more severe sanctions 

in the future. The purpose of this current motion is to advance the progress and resolution of this 

case and does not address the merits of the court’s May 11 Order. However, the Secretary has 

filed a Petition for Discretionary Review with the Commission, seeking review of that Order, 

dated June 9, 2023. 

3. Meanwhile, the parties are faced with uncertainty on how to proceed with the matter.

The parties continue to prepare for hearing on the two citations that have not been settled but it is 

unclear how that hearing will proceed. The parties do not want to expend time and resources on 

the four citations on which the parties agree. On the other hand, the parties do not want to appear 

at the hearing and be unprepared to address citations that the court expects to be addressed.

Additionally, the issues raised and addressed in the Order Denying Partial Settlement do not 

apply to the two remaining citations in the docket that have not been settled.

4. As a solution to the above stated uncertainty and the conundrum that the parties face, 

the Secretary moves that the court issue an Order bifurcating Docket WEVA 2023-0141 into two 

dockets. The newly created docket would contain the two citations not addressed in the 

Secretary’s Motion to Approve Partial Settlement. The four citations that are addressed in that 

motion would remain in Docket WEVA 2022-411. The Secretary will pursue appropriate 

appellate remedies to challenge the denial of the motion, the imposition of sanctions and the 

threat of additional more severe sanctions. The remaining citations, Nos. 9590300 and 9590301, 

could then be addressed apart from that dispute and would proceed to hearing on July 25.

5. Delaying resolution of the citations not directly involved in the May 11 Order would

negatively impact the administration of the Act and would be contrary to the safety promoting 
3

purpose of the Act. A primary purpose of the Act is to protect miners from hazardous conditions. 

The company has challenged the S&S findings for the two remaining citations. Citation 9590300 

involves an inadequately insulated electrical trailing cable exposing miners to an electrical shock 

or electrocution hazard. Citation 9590301 involves an inadequately supported section of rib 

which exposed miners to a rib fall hazard. Consol’s refusal to acknowledge that these violations 

contributed to these serious hazards and posed a serious risk of injury raises concerns about 

Consol’s future compliance with the Act. A final resolution of these citations and imposition of 

an appropriate civil penalty will encourage compliance and will promote protection of Consol’s 

workforce.

6. From the company’s perspective, expeditious resolution of the citations is also

important. Should Consol prevail on the S&S issues, prompt resolution of those issues is 

important because the mine’s pattern of violations status is based on issued citations and so long 

as the citations remain unresolved, those violations count towards the mine’s POV status.

7. There are additional reasons why prompt finality of the violations at issue promotes

the efficient administration of the Act. Pursuant to Part 100.3(c) of the Secretary’s penalty 

regulations, violations are not counted as part of a mine’s history of violations until the violation 

is final. Bifurcating this matter will allow the other citations at issue to become final while the 

settlement dispute is resolved. Bifurcation and separately addressing the remaining citations will 

also allow for the timelier imposition of civil penalties for those violations. Prompt assessment 

and collection of civil penalties for final violations promotes the purpose of the Act and delay in 

the assessment and collection of those penalties has the opposite effect. Civil penalties are 

recognized as an important tool in encouraging compliance by mine operators. Allowing these 

citations to flounder while the settlement issue is resolved will undercut the purpose of the Act 
4

by unnecessarily delaying the finality of those violations and the imposition of civil penalties. 

Resolution of the issue raised in the court’s May 11 Order could conceivably take years pending 

consideration by the Commission and then possibly a court of appeals. 

 8. For the above reasons, the Secretary moves that an Order be issued bifurcating Docket 

WEVA 2023-0141 into two separate dockets, that the hearing scheduled for July 25 proceed and 

be limited to consideration of Citations 9590300 and 9590301. 

9. The undersigned has conferred with counsel for Consol and he has indicated that 

Consol takes no position on the motion at this time but reserves the right to file a response to the 

motion pursuant to Commission Rule 10(d). 

WHEREFORE, the Secretary moves that an Order be issued bifurcating this docket, 

creating a new docket, transferring Citation Nos. 9590300 and 9590301to the new docket, and 

proceeding on those citations as discussed above. 

Mailing Address: Respectfully submitted,

Office of the Solicitor Seema Nanda 

Division of Mine Safety and Health Solicitor of Labor 

U. S. Department of Labor

1201 12th Street South April E. Nelson

Arlington, VA 22202-5450 Associate Solicitor for Mine Safety and Health

(202) 693-9325 

 Jason Grover 

 Counsel for Trial Litigation

 /s/Robert S. Wilson 

 Robert S. Wilson

 Senior Trial Attorney 

 Attorneys for Secretary of Labor (MSHA)
5

CERTIFICATE OF SERVICE

I hereby certify that on June 12, 2023, a true and correct copy of the foregoing Secretary 

of Labor’s Motion to Bifurcate was sent via email attachment to:

James P. McHugh

jmchugh@hardypence.com

 

/s/ Robert S. Wilson 

Robert S. Wilson 

Senior Trial Attorney 
1 

UNITED STATES OF AMERICA

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

WASHINGTON, DC

SECRETARY OF LABOR, ) CIVIL PENALTY PROCEEDING 

U.S. DEPARTMENT OF LABOR (MSHA) ) 

Petitioner, ) Docket No. WEVA 2023-141 

) A.C. No. 46-09569-568207

v. ) 

) Mine: Itmann No. 5 

CONSOL MINING COMPANY, LLC, ) Mine ID: 46-09569 

Respondent. ) 

) �e Honorable Judge Michael Young

SECRETARY’S MOTION FOR CERTIFICATION FOR INTERLOCUTORY REVIEW

AND STAY PENDING REVIEW, AND RENEWED MOTION TO BIFURCATE

�e Secretary moves that the Administrative Law Judge certify for interlocutory review 

this question: whether the May 11, 2023, Order Denying Motion To Approve Settlement And 

Striking Material From Motion is an abuse of discretion. �e Secretary also renews her motion to 

bifurcate and moves for stay of part of the bifurcated docket pending interlocutory review. �is 

will enable the Secretary to appeal the May 11 order while not delaying the resolution of the rest 

of this case.

Background 

1. On May 9, 2023, the Secretary filed a motion to approve partial settlement in this

case. �e motion explained that the Secretary decided to modify the negligence on three 

violations in this docket, and on a fourth, to modify the gravity and remove the S&S designation.

2. On May 11, 2023, the Administrative Law Judge issued an order denying that motion

and sanctioning the Secretary for articulating her legal position—currently on appeal—that she 

has unreviewable discretion to remove S&S designations. �e order also said that the Secretary 

should expect increasingly severe sanctions if the Secretary articulates that position in the future.

APPENDIX D
2

3. On May 12, 2023, in Pocahontas Coal Company LLC, WEVA 2023-0092, the 

Administrative Law Judge issued an Order Approving Settlement with Significant Reservations 

in which he put the Secretary’s representative on notice that articulating the Secretary’s position 

on S&S removals would result in future sanctions.

4. On June 9, 2023, the Secretary filed a petition for discretionary review of both the 

May 11 order in this case and the May 12 Pocahontas order with the Commission.

5. On June 16, 2023, the Commission granted the Secretary’s petition in Pocahontas but 

denied it, without prejudice, in this case. �e Commission reasoned that the May 11 order was 

not a final Administrative Law Judge’s order, so interlocutory review was the appropriate way to 

obtain Commission review. �e Commission also noted that the Secretary’s motion to bifurcate 

is pending, and that bifurcating this matter “would both facilitate potential Commission 

interlocutory review and prevent any unintentional delays leading up to the scheduled hearing on 

the unresolved citations.”

Certification for Interlocutory Review

6. Interlocutory review is appropriate when a ruling involves a controlling question of 

law and immediate review will materially advance the final disposition of the proceeding. 29 

C.F.R. 2700.76(a)(1)(i).

7. �e May 11 order is based on two legal conclusions: that the Secretary does not have

unreviewable discretion to remove S&S designations, and that it is a sanctionable misstatement 

of law to take the position that she does. If those conclusions are wrong, then the order is an 

abuse of discretion. The Am. Coal Co., 38 FMSHRC 1972, 1984 (Aug. 2016) (“An abuse of 

discretion may be found . . . if the decision is based on an improper understanding of the law.”).

�e Secretary seeks certification of questions that will determine whether those conclusions are 
3

wrong. �ose questions therefore are controlling, and certification and would materially advance 

the final disposition of the proceedings. See Wright & Miller, Federal Practice and Procedure 

§ 3930 (3d ed.) (“�ere is no doubt that a question is ‘controlling’ if its incorrect disposition 

would require reversal of a final judgment, either for further proceedings or for a dismissal that 

might have been ordered without the ensuing district-court proceedings.”).

8. Certification also is appropriate because the same question—whether it is an abuse of 

discretion to sanction the Secretary for articulating her legal position on S&S removals—is now 

pending review in Pocahontas. �ere is no briefing schedule in that case yet, so certification 

would not delay the resolution of the issue, and it would be efficient to permit the Commission to 

resolve this case at the same time as it resolves Pocahontas.

Bifurcate

9. �e Secretary renews her June 12, 2023, motion to bifurcate. It would be efficient to 

bifurcate this case for the reasons explained in that motion, and for the reasons contained in the 

Commission’s order denying discretionary review in this case.

Stay Pending Review

10. If the motion to bifurcate is granted, the Secretary moves for a stay of this docket 

(containing the four settled citations, not the docket containing the two citations to be tried) 

pending interlocutory review. A stay would allow the underlying legal issues to be resolved,

allow the Secretary to preserve her legal position, and allow the parties to preserve the settlement 

to which they have agreed.

11. �e Administrative Law Judge has stayed other similar cases in which settlement 

denials are pending interlocutory review by the Commission. See, e.g., Order Denying 

Certification for Interlocutory Review and Staying Proceedings, Peabody Gateway N. Mining, 
4 

LLC, No. LAKE 2023-0043 (FMSHRC Mar. 8, 2023) (ALJ); Order Denying Mot. to Approve 

Settlement, Certifying Case for Interlocutory Review, and Staying Proceedings, Bluestone Oil 

Corp., Nos. WEVA 2022-0176 et al. (FMSHRC Oct. 31, 2022) (ALJ). It would be fair to 

Consol, and to the Secretary, to take the same approach in this case.

12. �e undersigned has conferred with counsel for Consol; it takes no position on the 

Secretary’s motion. 

Mailing Address:

Office of the Solicitor

Division of Mine Safety and Health

U.S. Department of Labor

201 12th Street South, Suite 401 

Arlington, VA 22202

(202) 693-9325 

Respectfully submitted,

Seema Nanda

Solicitor of Labor

April E. Nelson

Associate Solicitor

Jason Grover

Counsel for Trial Litigation

/s/ Robert S. Wilson

Robert S. Wilson

Senior Trial Attorney

Attorneys for Secretary of Labor (MSHA)
Certificate of Service

I hereby certify that on June 20, 2023, a true and correct copy of the foregoing motion was sent 

via email attachment to: 

James P. McHugh 

jmchugh@hardypence.com

/s/ Robert S. Wilson

Robert S. Wilson

Senior Trial Attorney
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202 434-9987 / FAX: 202 434-9949

May 12, 2023

ORDER ACCEPTING APPEARANCE

DECISION APPROVING SETTLEMENT WITH SIGNIFICANT RESERVATIONS

ORDER TO MODIFY

ORDER TO PAY

Before: Judge Young 

This case is before me upon petition for assessment of 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 modifications. The 

Respondent has agreed to the proposed changes. The originally assessed amount for the citation 

at issue was $3,171.00, and the proposed settlement amount is $2,695.00.

It is ORDERED that the Conference and Litigation Representative (CLR) be accepted to 

represent the Secretary in accordance with the notice of limited appearance he has filed with the 

penalty petition. Cyprus Emerald Resources Corporation, 16 FMSHRC 2359 (Nov. 1994).

The proposed settlement includes:

Citation/Order

No.

Originally 

Proposed 

Assessment

Settlement 

Amount Modifications 

9550934 $169.00 $169.00 None.

9550935 $169.00 $169.00 None.

9550936 $169.00 $169.00 None.

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

Petitioner

v. 

POCAHONTAS COAL COMPANY LLC,

 Respondent

 CIVIL PENALTY PROCEEDING

Docket No. WEVA 2023-0092 

A.C. No. 46-08878-565698

 Mine: Affinity Mine

APPENDIX E
Citation/Order

No.

Originally 

Proposed 

Assessment

Settlement 

Amount Modifications 

9550403 $133.00 $133.00 None.

9550937 $169.00 $169.00 None.

9550938 $169.00 $169.00 None.

9550939 $183.00 $183.00 None.

9550940 $169.00 $169.00 None.

9550941 $198.00 $198.00 None.

9550942 $188.00 $188.00 None.

9550943 $169.00 $169.00 None.

9550404 $169.00 $169.00 None.

9557339 $610.00 $134.00 

Modify gravity from “Reasonably Likely” 

to “Unlikely,” and from “S&S” to “NonS&S,” and negligence from “Moderate” to 

“Low.”

9551135 $169.00 $169.00 None.

9551136 $169.00 $169.00 None.

9551137 $169.00 $169.00 None.

Total $3,171.00 $2,695.00

The parties have set forth the justification for the modifications in the motion filed by the 

Secretary. As required by the Mine Act, I have reviewed the motion and penalty criteria and 

evaluated the proposed settlement pursuant to the requirements set forth in Sections 110(i) and 

110(k). The parties agree to the size of this operator, good faith abatement, and the ability to 

pay. The history of violation has been considered. The negligence and gravity of the violation 

are addressed in the motion, in the citations, and in the file in general.

Citation 9557339 concerns a failure to conduct a required methane test. The cited 

provision states:

A qualified person shall make tests for methane—(iii) At 20-minute intervals, or 

more often if required in the approved ventilation plan at specific locations, 

during the operation of equipment in the working place.

30 C.F.R. § 75.362(d)(1)(iii) (2023). The citation reads, in part:

The roof bolt operators installing permanent roof support on the No. 3 active 

section (005-0 / 002-0 MMU’s) in the 5X6 cross-cut exceeded the 20 minute 

required methane test. The roof bolt operators were being observed installing 

bolts, when 25 minutes elapsed and no attempted [sic] was made to take the 

required methane test. Asked the operators what time was the last methane test 

was [sic] taken, both operators could not say when the methane test was made. 
The roof bolting machine was shut off and an examination was made with an 

extendable probe and large display CH4 detector. This mine is on a 10 day 

methane spot. 

Citation No. 9557339 (Sept. 8, 2022).

The Secretary submitted a settlement motion on April 19, 2023, but I expressed my 

reservations caused by the inadequate support for the removal of the S&S designation. See

Email from Christopher A. Jannace, Attorney Advisor to the Honorable Judge Michael G. 

Young, to Douglas W. Johnson, CLR, MSHA (Apr. 20, 2023; 10:25 a.m. ET). In her amended 

motion, the Secretary provided more thorough Respondent contentions challenging the 

likelihood of the hazard occurring: 

The Respondent would have argued at hearing that no methane was found on the 

section during numerous pre and on-shift examinations prior to the issuance of 

this citation and that this is normal for this mine. Though this mine does liberate 

substantial amounts of methane and is a “spot” inspection mine, most methane 

enters the mine’s ventilating area from worked out areas where methane enters the 

mine through cracks in the mine floor from a coal seam below that develop after a 

panel or area has been mined. 

The mine had no prior history of methane inundations from active 

workings of the mine nor any history of methane ignitions. The Respondent 

would have argued that a hazardous accumulation of methane in the face area 

where this bolting machine was operating was highly unlikely and virtually 

impossible with even a modest quantity of ventilating air. The quantity of 

ventilating air in this face area where the roof bolter was operating was in 

compliance with the mine’s approved ventilation plan which experience has 

shown to be more than capable of diluting hazardous gases including methane and 

dust, rendering them harmless and carrying them away.

The inspector, a roof control specialist, observed the roof bolting crew 

perform work in this area for approximately twenty-five (25) minutes before 

issuing this citation. Had the inspector reasonably believed that the cited 

condition presented a hazard, such that the condition warranted an S&S issuance, 

then he likely would not have permitted the miners to be unnecessarily exposed to 

the alleged S&S hazard for an additional five (5) minutes. Additionally, the area 

was nearly bolted and only a few minutes work remained to complete the bolting 

cycle. Thus, the miners were near the face area at the time of issuance and no 

methane was detected at any time.

Both of these roof bolter operators carried properly calibrated multi-gas 

detectors which would have provided an alarm of elevated methane should it be 

encountered. Upon issuance of the citation, they backed the roof bolting machine 

out of the cut and ran the remote “probe”, containing a methane detector, up into 

the face area to take the required 20 minute gas check as part of the abatement 
effort. The probe went just as far as the two miners had been standing moments 

before with their own multi-gas detectors. No methane was found by the remote 

probe. 

S. Mot. to Approve Settlement, at 3–5 (May 11, 2023).

Parties must “provide facts in support of the modification for each violation,” 29 C.F.R. § 

2700.31(b) (2022) (emphasis added), so that Commission judges may “set forth reasons for 

approval,” id. § 2700.31(g), when reviewing settlements under the AmCoal factors, 30 U.S.C. § 

820(k) (2023). The provided facts should therefore be substantive and relevant and, taken as 

true, should enable a judge to plausibly infer that the violation did not occur or does not meet the 

requirements of the designation the parties propose to modify. For S&S, this means that the facts 

should challenge one of the Mathies elements.

I find the contentions meet the bare minimum standards for relevance and plausibility to 

support removal of the S&S designation. The Secretary provides multiple Respondent 

contentions that are precedentially irrelevant to an S&S analysis. The hazard contemplated by 

the cited provision is the ignition of methane. The following contentions do nothing to challenge 

the likelihood of the hazard occurring, or any of the other Mathies elements.

An S&S analysis assumes the continuation of normal mining operations without 

abatement of the violative condition. See Consol Pa. Coal Co., 43 FMSHRC 145, 148 (Apr. 

2021) (citing U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of 

‘significant and substantial’ must be based on the facts existing at the time of issuance and 

assuming continued normal mining operations, absent any assumption of abatement of inference 

that the violative condition will cease.”).

Respondent’s contentions that no methane was found during pre- and on-shift 

inspections, that there is no history of methane inundations, and that no methane was found in 

the test made to abate the violation, are therefore irrelevant. Respondent was conducting roof 

bolting operations, and methane accumulations have been found to occur without warning—thus 

requiring compliance with provisions that prevent possible ignition sources, like permissibility 

requirements. See Knox Creek Coal Corp., 36 FMSHRC 1128, 1131 (May 2014) (“[G]iven the 

gassy nature of the mine, sudden methane buildups in the explosive range could reasonably be 

expected to occur.”). As I assume a methane build up at a gassy mine is reasonably likely to 

occur suddenly during continued operation, any reference to a lack of methane, past or present, is 

irrelevant to my evaluation.

Commission judges may not consider redundant safety measures in an S&S evaluation. 

See Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1028–29 (D.C. Cir. 2013)

(“‘[C]onsideration 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).’”). Multi-gas 

detectors, both personnel- and equipment-based, are redundant safety measures, on top of the 

requirement to conduct regular tests, aimed at preventing the hazard. References to such are 

therefore irrelevant to challenge S&S.
The Secretary, nonetheless, appropriately challenged the likelihood of the hazard by 

citing the available ventilation and time of violation. While lacking specificity and being 

minimally persuasive, Respondent contended that the quantity of ventilating air may have been 

demonstrated as sufficient to prevent ignition. I also recognize, to a miniscule extent, the 

minimal time Respondent was allegedly in violation.1 

While I am skeptical of the decision to delete the S&S designation, the explanation in the 

motion is not facially implausible. It is possible that at hearing, if supported by substantial 

evidence, the violation might not be proved to be S&S. Applying the American Coal factors to 

the settlement as a whole, I have also considered that all of the other violations have been 

accepted as issued, and that the reduction in the overall penalty is minimal. 

I separately emphasize that the Secretary again inappropriately asserted her authority to 

remove S&S designations, citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879–80 (June 

1996), and American Aggregates of Michigan, Inc., 42 FMSHRC 570, 576–79 (Aug. 2020). S. 

Mot. at 5. I have repeatedly explained, as have other Commission judges, that these cases are 

irrelevant to my evaluation of the proposed removal of S&S designations in settlement. See, e.g., 

Order Accepting Appearance & Denying Mot. to Approve Settlement, Docket No. WEVA 2023-

0071, at 7 (May 3, 2023).

I made clear to the Secretary that this constitutes misstating the law, and I cautioned both 

agency attorneys and CLRs not to continue incorrectly citing this authority in these 

circumstances on threat of being barred from practice before me. Id. As I did not threaten such 

a sanction on review of the first motion, I do not impose it on the CLR here. But he is now on 

notice.

Having considered the representations and documentation submitted, I find that the 

modifications are minimally reasonable, and concede, with noted concern, that the proposed 

settlement is appropriate under the criteria set forth in Section 110(i) of the Act. The motion to 

approve settlement is GRANTED. 

It is ORDERED that for Citation No. 9557339, the gravity be MODIFIED from 

“Reasonably Likely” to “Unlikely,” and the “S&S” designation be removed, and the negligence 

be MODIFIED from “Moderate” to “Low.”

1 I do not accept the contention that the inspector’s failure to cite for five minutes demonstrates 

his belief that the hazard was not likely, nor is that an appropriate consideration. I simply 

acknowledge that the combination of the purported quantity of ventilating air and the short 

duration of exposure might demonstrate at hearing that the hazard was unlikely to occur.
It is also ORDERED that the Respondent pay the Secretary of Labor the sum of 

$2,695.00 within 30 days of the date of this decision.2

 

 

 Michael G. Young

Administrative Law Judge

Distribution (by email):

Douglas W. Johnson, CLR, U.S. Department of Labor, MSHA, 1293 Airport Road, Beaver, WV 

25813, johnson.douglas@dol.gov

Jonathan R. Ellis, STEPTOE & JOHNSON PLLC, Chase Tower, Seventeenth Floor, P.O. Box 

1588, Charleston, WV 25326, jonathan.ellis@steptoe-johnson.com

2 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Secretary of Labor, Mine Safety 

and Health Administration (MSHA), 

Petitioner 

v. 

Pocahontas Coal Company LLC, 

Respondent 

Docket No. WEVA 2023-0092 

Secretary’s Petition for Discretionary Review

The Secretary seeks review of part of the judge’s May 12, 2023 order in this case. (A copy 

is attached as Exhibit A.) The order sanctions the Secretary for articulating the 

Secretary’s legal position about her authority to remove S&S designations—an issue that 

is on appeal—by putting the Secretary’s CLR “on notice” and threatening to bar the 

CLR from practicing if the CLR articulates that argument again. The Secretary seeks 

review of the part of the order putting the CLR on notice and threatening future 

sanctions, because a necessary legal conclusion is erroneous, and because that part of the 

order is contrary to law and involves substantial questions of law, policy, and discretion. 

See 30 U.S.C. 823(d)(2)(A)(ii)(II), (III), (IV). 

The issue presented for review is: did the judge abuse his discretion by sanctioning the 

Secretary for articulating the Secretary’s legal position, and by threatening to sanction the 

Secretary for articulating that legal position in the future? 

APPENDIX F
2 

Background 

1. The Secretary’s position on removing S&S designations 

In fall 2021, the Judge Young denied a motion to approve settlement in a case involving 

three violations. Ord. Denying Mot. to Approve Settlement, Knight Hawk Coal, LLC, No. 

LAKE 2021-0160 (FMSHRC Sept. 30, 2021) (ALJ Young). The operator accepted one 

violation as issued and decided to pay the proposed penalty; Secretary decided to reduce 

the gravity from reasonably likely to unlikely, and to remove the S&S designation, on two 

violations. The Secretary filed a motion to approve settlement, and then in response to 

the judge’s request for more facts, two amended motions. The motions provided facts in 

support of the gravity reduction and articulated the Secretary’s longstanding position that 

she has unreviewable discretion to remove an S&S designation. The motion cited 

Mechanicsville Concrete, Inc., 18 FMSHRC 877 (June 1996), and American AÆregates of 

Michigan, Inc., 42 FMSHRC 570 (Aug. 2020) to support this position. The judge denied 

the motion because, in his view, the Secretary had not provided enough facts to justify 

removing the S&S designation on one violation. Knight Hawk Ord. 3-5. The Secretary 

then filed a motion to certify for interlocutory review the question of whether the 

Secretary has unreviewable discretion to remove an S&S designation; the judge certified 

the question, and on April 7, 2022, the Commission directed review. 

Later in 2022, the judge denied two other settlements and certified the same question 

for interlocutory review. Ord. Denying Mot. To Approve Settlement, Certifying Case for 

Interlocutory Review, and Staying Proceedings, Bluestone Oil Corp., Nos. WEVA 2022-

0176, WEVA 2022-0350 (FMSHRC Oct. 31, 2022) (ALJ Young); Ord. Denying Mot. 
3 

To Approve Settlement, Certifying Case for Interlocutory Review, and Staying 

Proceedings, Greenbrier Minerals, LLC, Nos. WEVA 2022-0403 (FMSHRC Nov. 22, 

2022) (ALJ Young). The Commission directed review in both cases. And in March 2023, 

the judge stayed another case pending the same issue, but did not certify for interlocutory 

review; he reasoned that “[c]ertification will not materially advance the proceeding’s final 

disposition—the question has already been pending before the Commission for 11 

months, and it seems unlikely that a grant of interlocutory review here will accelerate a 

decision on the question and may delay one.” Ord. Denying Certification for 

Interlocutory Rev. and Staying Proceedings, Peabody Gateway N. Mining, LLC, No. 

LAKE 2023-0043 (FMSHRC Mar. 8, 2023) (ALJ Young). 

While the appeal has been pending, the judge has rejected the Secretary’s position but 

approved settlements in many cases. See, e.g., Appalachian Res. W. Va., Nos. WEVA 

2022-0464, WEVA 2022-0590 (FMSHRC Jan. 10, 2023) (ALJ Young); Casella Constr. 

Inc., No. YORK 2022-0068 (FMSHRC Dec. 5, 2022) (ALJ Young); Raw Coal Mining 

Co., Inc., No. WEVA 2022-0297 (FMSHRC Oct. 7, 2022) (ALJ Young). Sometimes the 

judge has approved settlements without remarking on the Secretary’s position at all. See, 

e.g., Phillips & Jordan, Inc., Nos. SE 2022-0092 et al. (FMSHRC Jan. 3, 2023) (ALJ

Young); Prospect Mining & Dev. Co., LLC, Nos. SE 2022-0034, SE 2022-0035 

(FMSHRC Oct. 20, 2022) (ALJ Young). 

On appeal, the Secretary has argued that she has unreviewable discretion to remove 

S&S designations, supporting that argument in part with the Commission’s decisions in 

Mechanicsville and American AÆregates. See Brief for the Sec’y of Lab. at 3-5, Bluestone Oil 
4 

Corp., Nos. WEVA 2022-0176, WEVA 2022-0350 (Jan. 6, 2023); Brief for the Sec’y of 

Lab. at 3-5, Greenbrier Minerals, LLC, No. WEVA 2022-0403 (Jan. 5, 2023); Brief for the 

Sec’y of Lab. at 4-5, 11-12, Knight Hawk Coal, LLC, No. LAKE 2021-0160 (May 9, 2022). 

In Mechanicsville, the Commission said that there is “no material difference between the 

Secretary’s [unreviewable] discretion on the one hand to vacate a citation . . . and his 

discretion on the other hand . . . not to designate a citation as S&S.” 18 FMSHRC at 

879. And in American AÆregates, the Commission held that the judge abused his 

discretion by rejecting a settlement in which the Secretary removed an S&S designation 

because the judge did not believe that removal was justified; the Commission said that 

“[w]hether a violation is S&S is a matter in the first instance of prosecutorial 

discretion,” so that “if MSHA does not charge an S&S violation, the Commission cannot 

make an S&S finding. Commission Judges do not have the discretion to make such 

elevated finding unless it is asserted in the first instance by MSHA.” 42 FMSHRC at 

576 (citation to Mechanicsville omitted). Since the appeal has been pending, when the 

Secretary has filed motions to approve settlement in cases in which the Secretary has 

decided to remove an S&S designation, the Secretary has continued her longstanding 

practice of articulating that she has discretion to do so, citing Mechanicsville and American 

AÆregates. 

The Commission has not decided the S&S-removal cases. Judges have taken different 

approaches to settlements in which the Secretary has removed an S&S designation. 

Sometimes judges do not comment on the Secretary’s position. See, e.g., Knight Hawk 

Coal, LLC, No. LAKE 2023-0095 (FMSHRC Apr. 19, 2023) (ALJ Paez); W.A. Murphy 
5 

Inc., No. WEST 2023-0005 (FMSHRC Apr. 19, 2023) (ALJ Manning); Quikrete Cos., 

Inc., No. CENT 2023-0003 (FMSHRC Apr. 18, 2023) (ALJ Bulluck); Twin State 

Mining, Inc., No. WEVA 2022-0391 (FMSHRC Jan. 24, 2023) (ALJ Sullivan); 

Continental Cement Co., No. CENT 2022-0236 (FMSHRC Jan. 10, 2023) (ALJ

Simonton); Consol Penn. Coal Co. LLC, No. PENN 2022-0061 (FMSHRC Jan. 10, 2023) 

(ALJ Lewis). Sometimes judges reject the position but consider the merits of the 

settlement. See, e.g., Hibbing Taconite Co., No. LAKE 2022-0176 (FMSHRC Jan. 26, 

2023) (ALJ McCarthy); Appalachian Res. W. Va., LLC, No. WEVA 2022-0554 

(FMSHRC Jan. 24, 2023) (ALJ Moran); Grimes Rock, Inc., No. WEST 2022-0336 

(FMSHRC Dec. 30, 2022) (ALJ Miller). 

2. Recent ALJ orders on S&S removals 

On April 25, 2023, Judge Moran issued an “Order Approving Settlement with Significant 

Reservations.” Consol Pennsylvania Coal Co., LLC, No. PENN 2022-0129 (FMSHRC

Apr. 25, 2023) (ALJ Moran) (Ex. B). In it, Judge Moran said that citing Mechanicsville1

for the S&S-removal position was a violation of an attorney’s “obligation not to misstate 

case law” and told the Secretary to “cease invoking that decision for propositions not 

supported by it.” Id. at 6. The judge also asserted that Federal Rule of Civil Procedure 11, 

which requires attorneys to ensure that the “legal contentions [in a pleading] are 

warranted by existing law or by a nonfrivolous argument for extending, modifying, or 

1

 That motion to approve settlement did not cite American AÆregates, which may explain 

why the judge did not discuss it. 
6 

reversing existing law or for establishing new law,” is implicated by the Secretary’s 

position. Fed. R. Civ. P. 11(b)(2); Ex. B at 6. 

About a week later, without reaching the merits of the settlement, Judge Young issued 

an order denying a settlement that removed two S&S designations. Ord. Accepting 

Appearance & Ord. Den. Mot. to Approve Settlement, Extra EnerÅ, Inc., No. WEVA 

2023-0071 (FMSHRC May 4, 2023) (ALJ Young) (Ex. C). In it, the judge disapproved 

of the Secretary’s position on S&S removals, saying that it is inappropriate to cite 

Mechanicsville and American AÆregates because “[t]hese cases are known by now to be 

invalid as authority for the principles they claim to represent.” Id. at 7. The judge quoted 

Judge Moran’s order, noted that Rule 11 sanctions may be imposed for “misstating” the 

law, and threatened to impose sanctions: 

There are minimum standards of practice in every tribunal, including this 

one. Erroneous mischaracterizations of precedent fail to meet those 

standards and will not be tolerated. A CLR who cites these cases, falsely, 

in a subsequent motion as they have been cited here may be barred from 

practice before me. There may be other consequences. 

Ibid. (footnote omitted). In a footnote, the judge also said that “Although these cases 

were included by a pleading drafted by a CLR, I would expect an attorney to know better, 

and a transgression against the law of this sort by an attorney would be even more 

egregious.” Ibid. n.5. The judge also served the Department of Labor’s CLR Coordinator, 

an attorney in the Division of Mine Safety and Health in the Office of the Solicitor, even 

though the attorney had not entered an appearance. The judge did not acknowledge that 

the S&S-removal issue is on appeal. 
7 

About a week after Extra EnerÅ, the judge issued an order denying settlement and 

sanctioning the Secretary by striking from the record the Secretary’s position on S&S 

removals.2 Order Denying Mot. to Approve Settlement and Striking Material from Mot., 

Consol Mining Co. LLC, WEVA 2023-0141 (FMSHRC May 11, 2023) (ALJ Young) (Ex. 

D). Ignoring any review under Section 110(k), the judge discussed his order in Extra 

EnerÅ, then said that this settlement motion contained the same “offending citations,” 

which are “obviously inappropriate” and “impertinent.” Id. at 2. The judge sanctioned 

the Secretary’s representative by striking from the motion to approve settlement the 

Secretary’s position on S&S removals and threatened to impose more severe sanctions in 

future cases: “those who persist in the discredited and misleading use of precedent 

should reasonably anticipate that their conduct will be deemed knowing or intentional and 

will be addressed with progressive severity until the practice is discontinued.” Ibid. 

Finally, the judge denied the settlement “without reaching the merits.” Ibid.

3. This case 

The day after his order in Consol, the judge issued the order in this case. See Ex. A. The 

case involves 16 violations. The operator accepted 15 as issued and decided to pay the 

proposed penalties; the Secretary decided to modify one violation by reducing the gravity 

and negligence and removing the S&S designation. (That was Citation No. 9557339, 

which alleged a violation of 30 C.F.R. 75.362(d)(1)(iii) for roof bolters that failed to take 

methane checks every 20 minutes.) 

2

 The Secretary filed a petition for discretionary review of this order concurrently with 

this petition for discretionary review. 
8 

Consistent with the Secretary’s position on appeal, the motion to approve settlement 

provided facts supporting the reduction in gravity and negligence and articulated the 

Secretary’s position that she may remove S&S designations without Commission 

approval, citing American AÆregates and Mechanicsville. Although the judge approved the 

settlement, the judge “separately emphasize[d] that the Secretary again inappropriately 

asserted her authority to remove S&S designations,” cited his order in Extra EnerÅ, and 

“cautioned both agency attorneys and CLRs not to continue incorrectly citing this 

authority in these circumstances on threat of being barred from practice before me.” Ex. 

A at 5. The judge said that, “As I did not threaten such a sanction on review of the first 

motion, I do not impose it on the CLR here. But he is now on notice.” Ibid.

The judge also served the order on the Department of Labor’s CLR Coordinator, an 

attorney in the Division of Mine Safety and Health in the Office of the Solicitor, even 

though the attorney had not entered an appearance. The judge did not acknowledge that 

the S&S-removal issue is on appeal. 

Argument 

1. There is no legal basis for sanctioning, or threatening future sanctions against, 

the Secretary. 

The judge’s order is legally wrong, see 30 U.S.C. 823(d)(2)(A)(ii)(II)-(III), because 

articulating the Secretary’s position on S&S removals is not sanctionable conduct. 

Commission practitioners “shall conform to the standards of ethical conduct required 

of practitioners in the courts of the United States.” 29 C.F.R. 2700.80(a). Those 

standards include the obligation to ensure that the “legal contentions [in a pleading] are 
9 

warranted by existing law or by a nonfrivolous argument for extending, modifying, or 

reversing existing law or for establishing new law. . . .” Fed. R. Civ. P. 11(b)(2). 

It is not unethical or unprofessional to cite Mechanicsville and American AÆregates for 

the proposition that the Secretary has discretion to remove an S&S designation. As the 

Secretary has argued in the cases pending before the Commission, that is what those cases 

mean. But even if those cases did not directly support the Secretary’s argument, they 

certainly support a nonfrivolous argument for extending or modifying existing law. The 

pending appeal shows as much. See supra pp. 2-5. And the Secretary did not have to 

explain whether her S&S-removal position is warranted by Mechanicsville and American 

AÆregates or by extending them: “The text of the Rule . . . does not require that counsel 

differentiate between a position which is supported by existing law and one that would 

extend it. The Rule on its face requires that the [position] be either one or the other.” 

Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1539 (9th Cir. 1986). 

Commission review is essential because this is not an ordinary legal error. The judge 

not only has imposed sanctions; he has promised that more sanctions will come. That 

threat applies to all the Secretary’s representatives, so the judge has effectively barred the 

Secretary from making a non-frivolous legal argument; that would warrant review on its 

own. But the ’s order is especially pernicious because it applies to the Secretary’s position 

about the allocation of authority between the Secretary and the Commission. It is contrary 

to the Mine Act’s split-enforcement scheme to prevent the Secretary from articulating 

her view about those issues. See Sec’y of Lab. v. Knight Hawk Coal, LLC, 991 F.3d 1297 

(D.C. Cir. 2021); Mach Mining, LLC v. Sec’y of Lab., 728 F.3d 643 (7th Cir. 2013); Speed 
10 

Mining, Inc. v. FMSHRC, 528 F.3d 310 (4th Cir. 2008); Sec’y of Lab. v. Twentymile Coal 

Co., 456 F.3d 151 (D.C. Cir. 2006); Sec’y ex rel. Wamsley v. Mut. Mining, Inc., 80 F.3d 110 

(4th Cir. 1996); Sec’y ex rel. Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432 (D.C. Cir. 

1989). And by barring the Secretary from raising those issues at the ALJ level, the judge 

has effectively barred the Secretary from preserving them for appeal. See 30 

U.S.C. 816(a)(1), (b); 823(d)(2)(iii). 

2. This order raises significant questions about law, policy, and discretion. 

This order raises significant questions of law and policy, 30 U.S.C. 823(d)(2)(A)(ii)(IV), 

because of its scope. Although this order imposes sanctions in just one case, the judge 

said—in this order and in others—that he will impose sanctions on any representative 

who articulates the Secretary’s position. Ex. A at 5; Ex.C at 7 & n.5; Ex. D at 2. Simply 

put, the judge has threatened to sanction everyone who is authorized to represent the 

Secretary. A baseless order with such sweeping effects requires review. Cf. United States

v. Williams, No. 22-10174, 2023 WL 3516095, at *5 (9th Cir. May 18, 2023) (holding that 

a district judge’s order disqualifying an entire United States Attorney’s office is 

immediately appealable as a collateral order) (collecting cases). 

The order also raises significant questions about the judge’s exercise of discretion. 30 

U.S.C. 823(d)(2)(A)(ii)(IV). Judges certainly can reject legal arguments they disagree 

with, but disagreeing with an argument does not mean that the argument is sanctionable. 

And there is no basis for the judge’s conclusion that the Secretary’s S&S-removal 

position is a misstatement of the law. See supra pp. 2-5. 
11 

The judge abused his discretion by sanctioning the Secretary for articulating a 

position when the issue is unresolved and on appeal, and when the judge himself

previously found that position not to warrant sanctions. See supra p. 3. The judge knows 

that the S&S-removal issue is on appeal, because in each of the three cases presenting that 

issue, this judge certified the question for interlocutory review. See supra pp. 2-3. It is an 

abuse of discretion for the judge to impose sanctions on the grounds that the position is a 

misstatement of law, since he knows that issue is on appeal. See Peabody Gateway North

Ord. at 2 (acknowledging that the Commission has not decided the S&S issue); Asai v. 

Castillo, 593 F.2d 1222, 1225 (D.C. Cir. 1978) (declining to impose sanctions when the 

appellate court had not addressed the relevant issue). It is arbitrary and an abuse of 

discretion for the judge abruptly to begin imposing sanctions for a position that the judge 

had not sanctioned before. See, e.g., Sec’y of Lab. v. Westfall AÆregate & Materials, Inc., 

No. 22-1088, 2023 WL 3830210, at *5 (D.C. Cir. June 6, 2023) (the Commission must 

engage in reasoned decisionmaking, “especially” when it “has taken a sharp turn from 

prior holdings”) (quoting Leeco, Inc. v. Hays, 965 F.2d 1081, 1085 (D.C. Cir. 1992)). 

Conclusion 

The Commission should direct review. 

Respectfully submitted, 

SEEMA NANDA 

Solicitor of Labor 

APRIL E. NELSON

Associate Solicitor 
12 

s/ EMILY TOLER SCOTT

Counsel for Appellate Litigation 

U.S. Department of Labor 

Office of the Solicitor 

Division of Mine Safety & Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

(202) 693-9333 

(202) 693-9392 (fax) 

scott.emily.t@dol.gov 

Attorneys for the Secretary of Labor
Certificate of Service 

I certify that on June 9, 2023, a copy of this petition for discretionary review was served 

by email on: 

Jonathan R. Ellis 

STEPTOE & JOHNSON PLLC 

Chase Tower, Seventeenth Floor 

P.O. Box 1588 

Charleston, WV 25326 

jonathan.ellis@steptoe-johnson.com 

s/ Emily Toler Scott
Exhibit A 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202 434-9987 / FAX: 202 434-9949

May 12, 2023

ORDER ACCEPTING APPEARANCE

DECISION APPROVING SETTLEMENT WITH SIGNIFICANT RESERVATIONS

ORDER TO MODIFY

ORDER TO PAY

Before: Judge Young

This case is before me upon petition for assessment of 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 modifications. The 

Respondent has agreed to the proposed changes. The originally assessed amount for the citation 

at issue was $3,171.00, and the proposed settlement amount is $2,695.00.

It is ORDERED that the Conference and Litigation Representative (CLR) be accepted to 

represent the Secretary in accordance with the notice of limited appearance he has filed with the 

penalty petition. Cyprus Emerald Resources Corporation, 16 FMSHRC 2359 (Nov. 1994).

The proposed settlement includes:

Citation/Order

No.

Originally 

Proposed 

Assessment

Settlement 

Amount Modifications

9550934 $169.00 $169.00 None.

9550935 $169.00 $169.00 None.

9550936 $169.00 $169.00 None.

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

POCAHONTAS COAL COMPANY LLC,

 Respondent

 CIVIL PENALTY PROCEEDING

Docket No. WEVA 2023-0092

 A.C. No. 46-08878-565698

 

 Mine: Affinity Mine
Citation/Order

No.

Originally 

Proposed 

Assessment

Settlement 

Amount Modifications

9550403 $133.00 $133.00 None.

9550937 $169.00 $169.00 None.

9550938 $169.00 $169.00 None.

9550939 $183.00 $183.00 None.

9550940 $169.00 $169.00 None.

9550941 $198.00 $198.00 None.

9550942 $188.00 $188.00 None.

9550943 $169.00 $169.00 None.

9550404 $169.00 $169.00 None.

9557339 $610.00 $134.00

Modify gravity from “Reasonably Likely” 

to “Unlikely,” and from “S&S” to “NonS&S,” and negligence from “Moderate” to 

“Low.”

9551135 $169.00 $169.00 None.

9551136 $169.00 $169.00 None.

9551137 $169.00 $169.00 None.

Total $3,171.00 $2,695.00

The parties have set forth the justification for the modifications in the motion filed by the 

Secretary. As required by the Mine Act, I have reviewed the motion and penalty criteria and 

evaluated the proposed settlement pursuant to the requirements set forth in Sections 110(i) and 

110(k). The parties agree to the size of this operator, good faith abatement, and the ability to 

pay. The history of violation has been considered. The negligence and gravity of the violation 

are addressed in the motion, in the citations, and in the file in general.

Citation 9557339 concerns a failure to conduct a required methane test. The cited 

provision states:

A qualified person shall make tests for methane—(iii) At 20-minute intervals, or 

more often if required in the approved ventilation plan at specific locations, 

during the operation of equipment in the working place.

30 C.F.R. § 75.362(d)(1)(iii) (2023). The citation reads, in part:

The roof bolt operators installing permanent roof support on the No. 3 active 

section (005-0 / 002-0 MMU’s) in the 5X6 cross-cut exceeded the 20 minute 

required methane test. The roof bolt operators were being observed installing 

bolts, when 25 minutes elapsed and no attempted [sic] was made to take the 

required methane test. Asked the operators what time was the last methane test 

was [sic] taken, both operators could not say when the methane test was made. 
The roof bolting machine was shut off and an examination was made with an 

extendable probe and large display CH4 detector. This mine is on a 10 day 

methane spot.

Citation No. 9557339 (Sept. 8, 2022).

The Secretary submitted a settlement motion on April 19, 2023, but I expressed my 

reservations caused by the inadequate support for the removal of the S&S designation. See

Email from Christopher A. Jannace, Attorney Advisor to the Honorable Judge Michael G. 

Young, to Douglas W. Johnson, CLR, MSHA (Apr. 20, 2023; 10:25 a.m. ET). In her amended 

motion, the Secretary provided more thorough Respondent contentions challenging the 

likelihood of the hazard occurring:

The Respondent would have argued at hearing that no methane was found on the 

section during numerous pre and on-shift examinations prior to the issuance of 

this citation and that this is normal for this mine. Though this mine does liberate 

substantial amounts of methane and is a “spot” inspection mine, most methane 

enters the mine’s ventilating area from worked out areas where methane enters the 

mine through cracks in the mine floor from a coal seam below that develop after a 

panel or area has been mined.

The mine had no prior history of methane inundations from active 

workings of the mine nor any history of methane ignitions. The Respondent 

would have argued that a hazardous accumulation of methane in the face area 

where this bolting machine was operating was highly unlikely and virtually 

impossible with even a modest quantity of ventilating air. The quantity of 

ventilating air in this face area where the roof bolter was operating was in 

compliance with the mine’s approved ventilation plan which experience has 

shown to be more than capable of diluting hazardous gases including methane and 

dust, rendering them harmless and carrying them away.

The inspector, a roof control specialist, observed the roof bolting crew 

perform work in this area for approximately twenty-five (25) minutes before 

issuing this citation. Had the inspector reasonably believed that the cited 

condition presented a hazard, such that the condition warranted an S&S issuance, 

then he likely would not have permitted the miners to be unnecessarily exposed to 

the alleged S&S hazard for an additional five (5) minutes. Additionally, the area 

was nearly bolted and only a few minutes work remained to complete the bolting 

cycle. Thus, the miners were near the face area at the time of issuance and no 

methane was detected at any time.

Both of these roof bolter operators carried properly calibrated multi-gas 

detectors which would have provided an alarm of elevated methane should it be 

encountered. Upon issuance of the citation, they backed the roof bolting machine 

out of the cut and ran the remote “probe”, containing a methane detector, up into 

the face area to take the required 20 minute gas check as part of the abatement 
effort. The probe went just as far as the two miners had been standing moments 

before with their own multi-gas detectors. No methane was found by the remote 

probe.

S. Mot. to Approve Settlement, at 3–5 (May 11, 2023).

Parties must “provide facts in support of the modification for each violation,” 29 C.F.R. § 

2700.31(b) (2022) (emphasis added), so that Commission judges may “set forth reasons for 

approval,” id. § 2700.31(g), when reviewing settlements under the AmCoal factors, 30 U.S.C. § 

820(k) (2023). The provided facts should therefore be substantive and relevant and, taken as 

true, should enable a judge to plausibly infer that the violation did not occur or does not meet the 

requirements of the designation the parties propose to modify. For S&S, this means that the facts 

should challenge one of the Mathies elements.

I find the contentions meet the bare minimum standards for relevance and plausibility to 

support removal of the S&S designation. The Secretary provides multiple Respondent 

contentions that are precedentially irrelevant to an S&S analysis. The hazard contemplated by 

the cited provision is the ignition of methane. The following contentions do nothing to challenge 

the likelihood of the hazard occurring, or any of the other Mathies elements.

An S&S analysis assumes the continuation of normal mining operations without 

abatement of the violative condition. See Consol Pa. Coal Co., 43 FMSHRC 145, 148 (Apr. 

2021) (citing U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of 

‘significant and substantial’ must be based on the facts existing at the time of issuance and 

assuming continued normal mining operations, absent any assumption of abatement of inference 

that the violative condition will cease.”).

Respondent’s contentions that no methane was found during pre- and on-shift 

inspections, that there is no history of methane inundations, and that no methane was found in 

the test made to abate the violation, are therefore irrelevant. Respondent was conducting roof 

bolting operations, and methane accumulations have been found to occur without warning—thus 

requiring compliance with provisions that prevent possible ignition sources, like permissibility 

requirements. See Knox Creek Coal Corp., 36 FMSHRC 1128, 1131 (May 2014) (“[G]iven the 

gassy nature of the mine, sudden methane buildups in the explosive range could reasonably be 

expected to occur.”). As I assume a methane build up at a gassy mine is reasonably likely to 

occur suddenly during continued operation, any reference to a lack of methane, past or present, is 

irrelevant to my evaluation.

Commission judges may not consider redundant safety measures in an S&S evaluation. 

See Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1028–29 (D.C. Cir. 2013)

(“‘[C]onsideration 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).’”). Multi-gas 

detectors, both personnel- and equipment-based, are redundant safety measures, on top of the 

requirement to conduct regular tests, aimed at preventing the hazard. References to such are 

therefore irrelevant to challenge S&S.
The Secretary, nonetheless, appropriately challenged the likelihood of the hazard by 

citing the available ventilation and time of violation. While lacking specificity and being 

minimally persuasive, Respondent contended that the quantity of ventilating air may have been 

demonstrated as sufficient to prevent ignition. I also recognize, to a miniscule extent, the 

minimal time Respondent was allegedly in violation.1 

While I am skeptical of the decision to delete the S&S designation, the explanation in the 

motion is not facially implausible. It is possible that at hearing, if supported by substantial 

evidence, the violation might not be proved to be S&S. Applying the American Coal factors to 

the settlement as a whole, I have also considered that all of the other violations have been 

accepted as issued, and that the reduction in the overall penalty is minimal. 

I separately emphasize that the Secretary again inappropriately asserted her authority to 

remove S&S designations, citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879–80 (June 

1996), and American Aggregates of Michigan, Inc., 42 FMSHRC 570, 576–79 (Aug. 2020). S. 

Mot. at 5. I have repeatedly explained, as have other Commission judges, that these cases are 

irrelevant to my evaluation of the proposed removal of S&S designations in settlement. See, e.g., 

Order Accepting Appearance & Denying Mot. to Approve Settlement, Docket No. WEVA 2023-

0071, at 7 (May 3, 2023).

I made clear to the Secretary that this constitutes misstating the law, and I cautioned both 

agency attorneys and CLRs not to continue incorrectly citing this authority in these 

circumstances on threat of being barred from practice before me. Id. As I did not threaten such 

a sanction on review of the first motion, I do not impose it on the CLR here. But he is now on 

notice.

Having considered the representations and documentation submitted, I find that the 

modifications are minimally reasonable, and concede, with noted concern, that the proposed 

settlement is appropriate under the criteria set forth in Section 110(i) of the Act. The motion to 

approve settlement is GRANTED.

It is ORDERED that for Citation No. 9557339, the gravity be MODIFIED from 

“Reasonably Likely” to “Unlikely,” and the “S&S” designation be removed, and the negligence 

be MODIFIED from “Moderate” to “Low.”

1 I do not accept the contention that the inspector’s failure to cite for five minutes demonstrates 

his belief that the hazard was not likely, nor is that an appropriate consideration. I simply 

acknowledge that the combination of the purported quantity of ventilating air and the short 

duration of exposure might demonstrate at hearing that the hazard was unlikely to occur.
It is also ORDERED that the Respondent pay the Secretary of Labor the sum of 

$2,695.00 within 30 days of the date of this decision.2

 

 

 Michael G. Young

Administrative Law Judge

Distribution (by email):

Douglas W. Johnson, CLR, U.S. Department of Labor, MSHA, 1293 Airport Road, Beaver, WV 

25813, johnson.douglas@dol.gov

Jonathan R. Ellis, STEPTOE & JOHNSON PLLC, Chase Tower, Seventeenth Floor, P.O. Box 

1588, Charleston, WV 25326, jonathan.ellis@steptoe-johnson.com

2 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers.
Exhibit B
1 

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 

 April 25, 2023

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. PENN 2022-0129

Petitioner, : A.C. No. 36-07230-561904 

 : 

 : 

v. : 

: 

: 

CONSOL PENNSYLVANIA COAL : Mine: Bailey Mine

COMPANY, LLC, : 

 Respondent : 

: 

DECISION APPROVING SETTLEMENT WITH SIGNIFICANT RESERVATIONS

Before: Judge William Moran

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

104(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a Motion to 

Approve Settlement. The Respondent has agreed to the proposed settlement. The originally 

assessed total amount for the citations at issue was $9,036.00 and the proposed total settlement 

amount is $1,897.00, reflecting a 79% (seventy-nine percent) overall reduction, as reflected in 

the following table: 

Citation/Order MSHA’s 

Proposed Penalty

Settlement 

Amount

Other modifications to 

citation/order

9205312 $6,898 $1,393 

Citation modified to moderate 

negligence; 80% reduction in 

penalty

9204928 $1,069 $252 Citation modified to unlikely and nonS&S; 76% reduction in penalty

9205356 $1,069 $252 Citation modified to unlikely and nonS&S; 76% reduction in penalty

TOTAL 

REVISED 

PENALTY

Original total: 

$9,036.00

Revised total: 

$1,897.00 79% overall reduction in penalty
2

The Citations in issue

Citation No. 9205312 

This citation invoked 30 U.S.C. §876(b), pertaining to “Communication facilities; locations 

and emergency response plans.” The section addresses telephone service or equivalent twoway communication facilities, which are to be approved by the Secretary or his authorized 

representative. Such communication facilities shall be provided between the surface and each 

landing of main shafts and slopes and between the surface and each working section of any coal 

mine that is more than one hundred feet from a portal. The cited subsection addresses the plan 

requirements.

The section 104(a) citation for this now-admitted violation stated:

The Mine Operator failed to comply with their Approved Emergency Response 

Plan (Approved 9-11-2020), in that, there were no leaky feeder line 

(communication) or tracking tags installed in the 2-K Working Section (009-0 

MMU) Alternate Escapeway (number 3 entry of 2-K) from the loading point inby 

8 crosscut outby to the 5 South Mains Right (K) Track at the number 80 crosscut 

(2420 feet in length). Therefore there was no redundant communication 

between the Primary or Alternate Escapeways and no communication or 

tracking at all in the alternate escapeway or at the Working Section refuge 

alternative/SCSR cache from the alternate escapeway. After issuance of this 

citation, the Operator removed the persons from the working faces to outby the 

loading point until the condition can be corrected. 

The Following statements are from the Approved Mine Emergency Response Plan 

and have not been complied with:

1. Page 1, Communication, 2. Coverage Area, line b.,- The system will also 

generally provide continuous coverage along escapeways and a coverage zone 

approximately 200' feet inby and outby strategic areas of the mine. Strategic Areas 

are fixed work locations where miners are normally required to work, section SCSR 

caches, working section power centers and manned belt transfers.

2. Page 2., 6.,- Survivability, a. The post accident communication system will 

generally provide redundant signal pathways to the surface component. b.-

Redundancy will be achieved by two or more systems installed in two or more 

entries, or one system with two or more pathways to the surface; provided that a 

failure in one system or pathway does not affect the other system or pathway. c.,-

Redundancy means that the system can maintain communication with the surface 

when a single pathway is disrupted. Disruptions can include major events in an 

entry or component failure.

3. Page 3, Tracking System, 1. Performance, aiii.,- Locate Miners in escapeway at intervals not to exceed 2000 feet. iv.,- Locate miners within 200 feet of 
3

strategic areas. Strategic Areas are fixed work locations where miners are normally 

required to work, section mass SCSR caches, working section power centers and 

manned belt transfers. vii.,- Locate miners at the key junction in the escape-ways. 

viii.,- Locate miners within 200 feet of refuge alternatives. d.- The electronic 

tracking system will be installed in active daily traveled areas of the mine Primary 

and Secondary escapeways.

4. Page 5, 8. Maintenance, d. In the event of system or component failures, the 

miners will be notified of the problem. The affected miners will begin manual zone 

tracking and continue to advise the surface communication facility of their travel 

until the system is repaired. Repairs will start immediately if there is a loss in 

tracking capabilities. e.- The system will be examined weekly to verify that it is 

maintained in proper operating condition and the results of the examination will be 

entered in a record book.

5. Page 5, 9. Purchase and Installation,- b. If there is system failure the mine 

will revert to manual tracking system that was previously used. 

Petition for Civil Penalty at 11-13.

The citation was terminated the following day, with the inspector noting: 

Through a visual observation after traveling the 2K MMU 009-0 #3 entry (return) 

(Alternate Escapeway) in its entirety and having communication throughout and 

verifying through the tracking software on the Mine's surface of this inspectors 

locations, this citation is hereby terminated. The system is working in the 

previously mentioned entry/area. Secondly, the Mine Operator is carrying a 

record/ledger (weekly exam) to show the systems functioning properly.

Id. at 13.

The issuing inspector, who diligently recorded the aspects of the Approved Mine Emergency 

Response Plan provisions which were not complied with, listed the “Gravity” of the injury or 

illness as ‘Unlikely,’ but listed such injury or illness as “Fatal” if it were to occur. Marked as 

non-significant and substantial, nine miners would be affected. Given the multiple subjects of 

non-compliance, the inspector listed the negligence as “High.” Id.

Analysis for Citation No. 9205312

The penalty, which was regularly assessed at $6,898.00, is now proposed to be settled at 

$1,393.00, representing an 80% reduction. This figure is apparently derived by designating the 

negligence from ‘High’ to “Moderate.’ Motion at 3. The justification for this is short, the 

Motion relating that the “Respondent has represented to the Secretary that it had assigned miners 

to install the missing equipment that is the subject of the citation, but that the work was not 

timely completed because of supply problems.” Undercutting this claim is that the inspector 

found five instances of non-compliance, yet all five violative conditions were somehow corrected 
4

the next day, the supply problems apparently having vanished rapidly. This is the sole basis 

presented in the motion for listing the negligence as moderate. 

In support of the Secretary’s contention, the Solicitor’s attorney looks to Vindex Energy 

Corporation, 34 FMSHRC 223, 224 (Jan. 2012) (ALJ) (“Vindex”), asserting that “[i]t is 

‘appropriate to defer to the judgment of the parties’ in arriving at a modified penalty based on 

the §100.3 tables.” Motion at 3. The Solicitor’s attorney is apparently unaware that an 

administrative law judge’s decision is not precedential. Commission Procedural Rule 69(d) 

provides that a Judge's decision does not constitute binding precedent. 29 C.F.R. § 2700.69(d). 

Rain for Rent, 40 FMSHRC 976, 980 (July 2018), Tilden Mining, 36 FMSHRC 1965 (Aug. 

2014). The Secretary also errs in asserting that there is an evidentiary dispute regarding the 

appropriate level of negligence but offers nothing to support the notion that the negligence 

should be deemed “Moderate,” other than the vague remark about the short-lived claim of 

‘supply problems.’ Merely asserting ‘supply problems’ is apparently sufficient to carry the day. 

Citation No. 9204928 

This section 104(a) citation, invokes 30 C.F.R. § 75.1403, well known as the ‘safeguard 

standard.’ It is also a statutory provision which requires that “[o]ther safeguards adequate, in the 

judgment of an authorized representative of the Secretary, to minimize hazards with respect to 

transportation of men and materials shall be provided.” 

For this now-admitted violation, on July 8, 2022 the inspector identified multiple 

violations of the provision, noting that “[t]he 2K section (MMU 009-0) #2 entry track from 0xc -

9.5xc has failed to be properly maintained as identified by the safeguards for the Bailey Mine in 

the aspect: 39 loose track bolts, a loose fish plate and a missing bolt are allowed to exist on 

this track. Also, at the #8 crosscut the rail is out of alignment by 1/4 inch at the time of the 

exam. 

Petition for Civil Penalty at 15 (emphasis added).

The citation noted that the safeguard standard had been cited 59 times in two years at the 

mine. Id.

The citation was terminated four days later, on July 12, 2022, after the identified 

violations were corrected with the inspector stating that the “operator was able to tighten the 

loose bolts with approved means, and properly adjust the rail at #8 crosscut, however will need 

to burn a hole in the rail to install the missing bolt on the right side of the track at #8 crosscut. 

Because the mine is currently operating on shutdown and minimal people are working, additional 

time is granted to get specialized manpower to this location to cut the rail to install the bolt. Id.

at 16.

Analysis for Citation No. 9204928

The Secretary’s attorney cites an administrative law judge decision as precedent, 

misconstrues the Commission’s decision in Mechanicsville Concrete, Inc., 18 FMSHRC 877, 

(June 1996), and does not provide ‘facts’ to support the requirements for settlement, per
5

the Commission’s AmCoal decisions: 38 FMSHRC 1972, (Aug. 2016) (“AmCoal I”), 

American Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal II”)

If the basis for the 80% penalty reduction regarding the previously discussed Citation,

No. 9205312, is arguably justified, the same cannot be said for Citation No. 9204928. This is so 

because the offering by the Secretary does not even meet the Commission’s requirements for 

settlement motions. The justification, in its entirety, provides only that:

[t]he Secretary has elected to withdraw the S&S designation for this violation and 

resolve it as “unlikely.” The proposed penalty reduction in this settlement is based 

on the point values in 30 C.F.R. §100.3 based on the Secretary’s modification to 

the citation. The Secretary’s use of the Part 100 regular assessment tables in 

settlement is a prima facie indication that the penalty reduction is fair, reasonable, 

and adequate under the facts, and protects the public interest.

Motion at 3-4. 

The Secretary’s attorney cites once again to the ALJ decision in Vindex, asserting that 

“[i]t is ‘appropriate to defer to the judgment of the parties’ in arriving at a modified penalty 

based on the §100.3 tables.” Id. The inapplicability of ALJ decisions as precedent has been 

discussed above.

The Secretary then adds that she “possesses unreviewable discretion to withdraw an S&S 

designation,” citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879 (June 1996) 

(“Mechanicsville”) (finding “no material difference between the Secretary’s discretion on the 

one hand to vacate a citation [pursuant to RBK Construction, Inc., 15 FMSHRC 2099, 2101 (Oct. 

1993)] and his discretion on the other hand not to issue a citation in the first instance or not to 

designate a citation as S&S.”1 Motion at 4 (“RBK”).

The Secretary continues to inappropriately cite Mechanicsville as authority. This Court 

and other judges have noted that Mechanicsville does not support the Secretary’s claim that she 

possesses unreviewable discretion to withdraw an S&S designation. Yet, the Secretary continues 

to assert otherwise. It’s time to be clear about the Commission’s holding in Mechanicsville.

At the outset of its decision in Mechanicsville, the Commission very plainly set forth 

the issue before it, stating that it “raises the issues of whether a judge on his own initiative can 

designate a violation of a mandatory safety standard to be significant and substantial.” 18 

FMSHRC 877. The Commission’s answer to the issue was equally plain, stating that it “agree[d] 

with the Secretary that the judge erred in determining on his own initiative that the violation was 

S&S.” Id. at 879 (emphasis added). Thus, the decision was expressly limited to the 

Commission’s holding that the judge erred “by adding a new finding and conclusion, i.e., that 

the violation posed a hazard to employees that was reasonably likely to result in a reasonably 

serious injury and was therefore S&S.” Id. at 880 (emphasis added). The Commission’s decision 

1 RBK holds only that the Secretary has the authority to vacate the citations. 15 FMSHRC at 

2101 
6

added nothing more to that holding. 

That the Commission’s decision in Mechanicsville did not go beyond the very words it 

employed in that decision was made additionally clear in Spartan Mining, 30 FMSHRC 699 

(August 2008). There, Spartan tried to expand Mechanicsville but the Commission would have 

nothing of it, informing that it “reject[ed] Spartan’s contention that the judge was bound by the 

Secretary’s assessment of the degree of negligence of “moderate” contained in the citation. ...

Spartan unpersuasively relies on Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879-80 (June 

1996) (finding that judge may not designate a violation as S&S on his own initiative), to assert 

that the judge’s alteration of the citation was impermissible. However, Mechanicsville is 

distinguishable because modifying a negligence determination, as the judge did here, is 

authorized by the Mine Act, whereas inserting an S&S designation is not.” Spartan at *22

(emphasis added).

Accordingly, there is no basis for the Secretary’s habitual citation to Mechanicsville as 

authority for the claim that she possesses unreviewable discretion to withdraw an S&S 

designation. It is one thing for the Secretary to argue that the Commission’s holding in 

Mechanicsville should be expanded beyond that holding, but to assert that the decision affords 

the Secretary with unreviewable discretion to withdraw such a finding is beyond the pale. Here, 

the Secretary does not present its contention as an argument. Instead, the Secretary’s attorney 

presents his position as the state of the law. It is not. 

Attorneys have an obligation not to misstate case law. Teamsters Local No. 579 v. B & 

M Transit, Inc., 882 F.2d 274, 280 (7th Cir.1989). Rule 11 of the Federal Rules of Civil 

Procedure requires attorneys to inquire about the ... law before filing pleadings. ... an attorney 

who submits a pleading must certify that: ‘to the best of the [attorney's] knowledge, information, 

and belief formed after reasonable inquiry [the pleading] is ... warranted by existing law or a 

good faith argument for the extension, modification, or reversal of existing law.” Dzwonkoski, 

2008 WL 2163916 (May 16, 2008) (S.D. Ala. 2008) citing Howard v. Liberty Memorial Hosp., 

752 F.Supp. 1074, 1080 (S.D.Ga.1990).

Therefore, unless and until the Commission revises its holding in Mechanicsville, the 

Secretary, both her attorneys and her non-attorney representatives, (Conference and litigation 

representative, “CLRs,”) should cease invoking that decision for propositions not supported by 

it. 

REVISITING PRESENT COMMISSION LAW FOR SETTLEMENT MOTIONS AS 

APPLIED TO THIS MATTER.

Fundamentally, the Secretary’s Motion in this matter does not meet the Commission’s 

test for settlement approvals, as set forth in American Coal Co., 38 FMSHRC 1972, (Aug. 2016) 

(“AmCoal I”), and American Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal II”)

Once past the obvious preliminaries – that a motion for settlement must state the penalty 

amount originally proposed by the Secretary and the new amount the parties have agreed to pay, 
7

the Commission’s decision in AmCoal II sets forth the present requirements deemed sufficient 

for its judges in carrying out their “front line oversight of the settlement process” in order “to 

fulfill their duty of determining if a settlement of a penalty is fair, reasonable, appropriate under 

the facts, and protects the public interest.” Id. at 985, 987. 

The Commission repeatedly spoke of the need for ‘factual support’ for penalty reduction. 

Id. at 989, 990. Though the Commission advised that such ‘facts’ “are not limited to facts 

related to the section 110(i) penalty criteria or to the alleged violations,” the Commission still 

required that facts be presented. Id. at 986. Accordingly, it has “required parties to submit facts

supporting a penalty amount agreed to in settlement.” Id. at 987. It noted, “[i]n particular, 

Commission Procedural Rule 31 requires that a motion to approve penalty settlement must 

include for each violation “the penalty proposed by the Secretary, the amount of the penalty 

agreed to in settlement, and facts in support of the penalty agreed to by the parties.” Id.

The Commission rejected the need for a respondent to present legitimate questions of fact 

which can only be resolved through the hearing process and also rejected that there is a need to 

show any legitimate factual disagreement. Id. at 991. As such, the Commission stated that 

“[f]acts alleged in a proposed settlement need not demonstrate a ‘legitimate’ disagreement that 

can only be resolved by a hearing. The Commission’s Procedural Rules and standing precedent 

do not contain such a requirement. Rather, the Commission has recognized that parties may 

submit facts that reflect a mutual position that the parties have agreed is acceptable to them in 

lieu of the hearing process.” Id. 

Despite the above, the Commission’s AmCoal II decision still requires the submission of 

‘facts.’ Such facts must be “mutually acceptable facts that demonstrate the proposed penalty 

reduction is fair, reasonable, appropriate under the facts, and protects the public interest.” Id. at 

991. Here, no facts have been presented. 

It is not an exaggeration to describe the basis for the Secretary’s justification as 

essentially ‘because we can.’ Though set forth above, it is worth repeating what the Secretary 

presented here, to wit:

[t]he Secretary has elected to withdraw the S&S designation for this violation and 

resolve it as “unlikely.” The proposed penalty reduction in this settlement is based 

on the point values in 30 C.F.R. §100.3 based on the Secretary’s modification to 

the citation. The Secretary’s use of the Part 100 regular assessment tables in 

settlement is a prima facie indication that the penalty reduction is fair, reasonable, 

and adequate under the facts, and protects the public interest.

Motion at 3-4. 

None of this amounts to mutually acceptable facts that demonstrate the proposed penalty 

reduction is fair, reasonable, appropriate under the facts, and protects the public interest.
8

Citation No. 9205356

This citation also invokes 30 C.F.R. § 75.1403. Issued on July 20, 2022, the inspector’s 

Condition or Practice section of the citation states: 

The Mine Operator failed to maintain an unobstructed travelway of at least 24 

inches in width on walk side of the 11-L Conveyor Belt between the outby end of 

the storage unit andthe bottom step of the 6 south Mains Left Track overcast stairs 

for a distance of 30 feet in length. Old pieces of conveyor belt were humped up in

the air, there were 2 small rolls of conveyor belt, splicing nail buckets, splices, a 

conveyor belt cutter and splicing template filling most of the required walkway in 

the cited area. The walkways in this area was wet, muddy and very slippery 

without having to traverse this extraneous materials. The Operator immediately 

started to clear the extraneous materials after the issuance of this citation.

Standard 75.1403 was cited 61 times in two years at mine 3607230 (60 to the 

operator, 1 to a contractor).

Petition for Civil Penalty at 18 (emphasis added).

The citation was terminated on July 21, 2022, with the inspectors remarking that “[a]ll of 

the extraneous materials have been cleaned out of the cited travelway/walkway. There is now at 

least 24 inches of clear, unobstructed travelway, therefore this citation is terminated. Id. at 19.

Analysis for Citation No. 9205356

As the Secretary’s attorney seeks the same modifications to this citation as he did for 

Citation No. 9204928 and offers the same justification, the Court’s previous analysis applies.

Summary:

As discussed above, the Secretary has cited to inapplicable precedent, by relying upon an 

administrative law judge decision, inappropriately cited to Mechanicsville Concrete, Inc., 18 

FMSHRC 877, (June 1996), for a proposition that case does not support, and failed to meet the 

Commission’s standards for an acceptable motion to approve settlement, per its decisions in 

AmCoal I and AmCoal II. 

That said, because the Commission has, to the best of this Court’s understanding, a 100% 

approval rate for settlement motions, it has decided to approve the settlement in this instance 

because the Commission examines all settlement determinations made by its judges, and has the 

authority, per 29 C.F.R. §2700.71, to review a judge’s decision on its own motion.2

2 29 C.F.R. § 2700.71, titled, “Review by the Commission on its own motion,” provides “[a]t any 

time within 30 days after the issuance of a Judge's decision, the Commission may, by the 

affirmative vote of at least two of the Commissioners present and voting, direct the case for 

review on its own motion. Review shall be directed only upon the ground that the decision may 

be contrary to law or Commission policy or that a novel question of policy has been presented. 
9 

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. As noted, under those decisions, reasonable 

inquiry by the Court is not permitted. 

Accordingly, 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. Citation No. 

9205312 is modified to moderate negligence, Citation No. 9204928 is modified to unlikely and 

non-S&S, Citation No. 9205356 is modified to unlikely and non-S&S.

It is ORDERED that the Respondent pay the agreed-upon civil penalty of $1,897.00 

within 30 days of this order.3

 Upon receipt of payment, this case is DISMISSED. 

 

 ____________________ 

 William B. Moran

 Administrative Law Judge

Distribution:

Attorney Kyle D. Stelmack, U.S. Department of Labor, Office of the Regional Solicitor

1835 Market Street, Mailstop SOL/22, Philadelphia, PA 19104 

Stelmack.kyle.d@dol.gov

Craig S. Aaron, CONSOL Energy, Inc., 275 Technology Drive, Suite 101 

Canonsburg, PA 15317 craigaaron@consolenergy.com 

The Commission shall state in such direction for review the specific issue of law, Commission 

policy, or novel question of policy to be reviewed. Review shall be limited to the issues specified 

in such direction for review. 

3 Penalties may be paid electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. 

It is vital to include Docket and A.C. Numbers when remitting payments. 
Exhibit C
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 1400

WASHINGTON, DC 20004-1710

TELEPHONE: 202 434-9987 / FAX 202 434-9949

May 4, 2023

ORDER ACCEPTING APPEARANCE

ORDER DENYING MOTION TO APPROVE SETTLEMENT

Before: Judge Young 

This case is before me upon petition for assessment of civil penalty under Section 105(d) 

of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a Joint Motion to

Approve Settlement and has set forth the factual basis for the proposed modifications. The 

Respondent has agreed to the proposed changes. The originally assessed amount was $6,548.00, 

and the proposed settlement amount is $1,324.00. 

It is ORDERED that the Conference and Litigation Representative (CLR) be accepted to 

represent the Secretary in accordance with the notice of limited appearance he has filed with the 

penalty petition. Cyprus Emerald Resources Corporation, 16 FMSHRC 2359 (Nov. 1994).

The proposed settlement includes the following modifications: 

Citation/Order 

No.

Originally 

Proposed 

Assessment

Settlement 

Amount Modifications 

9565489 $3,274.00 $662.00 

Modify gravity from “Reasonably Likely” 

to “Unlikely,” and from “S&S” to “NonS&S.”

9565490 $3,274.00 $662.00 

Modify gravity from “Reasonably Likely” 

to “Unlikely,” and from “S&S” to “NonS&S.”

Total $6,548.00 $1,324.00 80% Reduction

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner,

 v. 

EXTRA ENERGY, INC., 

 Respondent.

 CIVIL PENALTY PROCEEDING

 Docket No. WEVA 2023-0071 

 A.C. No. 46-09395-565851 

 

 Mine: Dry Branch Surface Mine
2

The motion proposes to remove the S&S designation from each citation. These

violations were for failure to maintain berms of adequate height on an elevated roadway. The 

provision reads, “Berms or guards shall be provided on the outer bank of elevated roadways.” 30 

C.F.R. § 77.1605(k) (2023).

The citations alleged the presence of three berm sections measuring 24–44 inches, 30 

inches, and 42–55 inches, for varying distances (from 100 feet to .2 miles) abutting a 50-foot 

drop, where the largest equipment used on the road had a mid-axle height of 63 inches. See

Citation No. 9565489 at 1 (Sept. 7, 2022); Citation No. 9565490 at 1 (Sept. 7, 2022).

The motion provided substantively the same explanation for the modification of each. 

The Secretary accepted Respondent’s contentions that (1) “while not at the full required height” 

the berms were “substantially built,” “wide,” and “capable of restraining a vehicle,” and (2) the 

affected area [road] was wide with good visibility. S. Mot. to Approve Settlement, at 3 (Mar. 23, 

2023). These explanations are inadequate to support removal of an S&S designation.

Parties must “provide facts in support of the modification for each violation,” 29 C.F.R. § 

2700.31(b) (2022) (emphasis added), so that Commission judges may “set forth reasons for 

approval,” id. § 2700.31(g), when reviewing settlements under the AmCoal factors, 30 U.S.C. § 

820(k) (2023). The provided facts should therefore be substantive and relevant and, taken as 

true, should enable a judge to plausibly infer that the violation did not occur or does not meet the 

requirements of the designation the parties propose to modify. For S&S, this means that the facts 

should challenge one of the Mathies elements.

Before addressing the S&S issue, I note a regulatory anomaly that is susceptible to only 

one reasonable resolution. The regulations governing metal and nonmetal surface mines require 

that, where required, “[b]erms or guardrails shall be at least mid-axle height of the largest selfpropelled mobile equipment which usually travels the roadway.” 30 C.F.R. § 56.9300(b), 

57.9300(b).1

 In contrast, the cited provision of Part 77 requiring berms for elevated roadways at 

surface coal mines and the surface areas of underground coal mines merely defines berm as “a 

pile or mound of material capable of restraining a vehicle.” 30 C.F.R. § 77.2.

Part 77 therefore does not include a mid-axle height standard. That language has been in 

place since the Coal Act. See Final Rule, 36 Fed. Reg. 9,364, 9,380 (May 22, 1971). The Part 

56 mid-axle language, however, was established later. See Safety Standards for Loading, 

Hauling, and Dumping and Machinery and Equipment at Metal and Nonmetal Mines, 53 Fed. 

Red. 32,496, 32,520–21 (Aug. 25, 1988).

The parties appear to implicitly accept that Part 77 requires the minimum height of the 

cited berms in this case to be 63 inches, the mid-axle height of the largest vehicle regularly 

traveling the roadway. See Citations 9565489, 9565490, § 8 (Sept. 7, 2022) (citing inadequate 

berms and noting mid-axle height of largest equipment as 63 inches); Mot. at 3 (providing 

Respondent’s argument conceding that berms were not at the required height at some areas). But 

1 Part 56 applies to surface metal and non-metal mines, while Part 57 governs the surface areas of 

underground metal and non-metal mines. The language in the two cited provisions is identical.
3

it is important for the Commission to recognize the mid-axle standard as binding upon the 

operators of surface and underground coal mines. 

The Commission has not yet done so directly. But it has affirmed a judge’s finding that 

mid-axle height was that which a reasonably prudent person would have recognized as required 

to prevent this provision’s contemplated hazard. See Black Beauty Coal Co., 34 FMSHRC 1733, 

1735, 1748 (Aug. 2012).2

The Commission had previously applied the reasonably prudent person standard to this 

provision. See U.S. Steel Corp., 5 FMSHRC 3, 7 (Jan. 1983) (requiring evidence as to what type 

of berm a reasonably prudent person would install under the circumstances); The Hanna Mining 

Co., 3 FMSHRC 2045, 2045–46 (Sept. 1981) (finding substantial evidence supporting that a 

two-to-three-foot berm was inadequate to prevent overtravel).3

There is of course no substantive difference between roadways and trucks at coal mines 

and those at metal or nonmetal mines. In both contexts, berms have been deemed necessary to 

prevent overtravel and fall from an elevated roadway.

It has been the Secretary’s litigation position that inadequate berm violations exist where 

they are not mid-axle height, and that they should be S&S where there exists the risk of a 

significant fall. See Buffalo Crushed Stone, Inc., 16 FMSHRC 2043, 2044, 2045 (Oct. 1994) 

(affirming a Part 56 violation where an inadequate berm abutted a 25-foot drop, and reversing 

the judge’s non-S&S finding).

Having made a formal determination in notice and comment rulemaking, and an informal 

determination in litigation, that the mid-axle height standard is necessary to protect miner health 

and safety, the Secretary is bound to uphold it now and should formalize the standard by 

regulation. In the absence of such action, the Commission should make clear that this standard is 

a binding norm.

The Secretary has gone to great lengths in the past to claim her litigation position is 

entitled to deference as an exercise of delegated rulemaking authority. See Sec’y of Labor v. 

Twentymile Coal Co., 411 F.3d 256, 261 (D.C. Cir. 2005) (citing Sec’y of Labor v. Excel Mining, 

LLC, 334 F.3d 1, 6 (D.C. Cir. 2003)) (“But because ‘in the statutory scheme of the Mine Act, the 

Secretary’s litigating position before [the Commission] is as much an exercise of delegated 

lawmaking powers as the Secretary’s promulgation of a . . . health and safety standard . . . .”); 

2 See also id. at 1748 n.19 (quoting U.S. Steel Corp., 5 FMSHRC 3, 5 (Jan. 1983)) (“[T]he 

adequacy of an operator’s . . . guards [is] evaluated in each case by reference to an objective 

standard or a reasonably prudent person familiar with the mining industry and in the context of 

the preventive purpose of the statute.”).

3 I note that both decisions were published before the 1988 addition of the mid-axle language to 

Part 56, and U.S. Steel acknowledged the need for reform if the Secretary intended to apply a 

minimum height standard. See 5 FMSHRC at 5 n.7 (“The Secretary is privileged under the Mine 

Act to write a more specific berm standard setting forth more detailed specifications for 

construction of safe berms and guards.”).
4

Adam Whitt, 35 FMSHRC 3487, 3490 (Nov. 2013); BHP Copper, Inc., 21 FMSHRC 758, 764 

n.11 (citing Martin v. OSHRC, 499 U.S. 144, 156–57 (1991)).

Such authority is based on “technical expertise and political authority to carry out 

statutory mandates.” Morton Int’l, Inc., Morton Salt, 18 FMSHRC 533, 452 (Apr. 1996) 

(quoting Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995)); see also Sec’y of Labor 

on behalf of Wamsley v. Mut. Mining, Inc., 80 F.3d 110, 114 (4th Cir. 1996) (quoting Martin, 

499 U.S. at 152) (emphasizing that the Secretary’s promulgation and enforcement of standards 

brings her into “constant contact with the daily operations of the mines,” endowing her with the 

“‘historical familiarity and policymaking expertise’ . . . that are the basis for judicial deference to 

agencies”).

The Secretary cannot legitimately assert that citation for a berm standard in a metal or 

nonmetal mine is a violation, and S&S due to likely injury from a fall from the elevated 

roadway, and simultaneously claim that the same situation—likely hazard and injury—are not 

S&S, or not even a violation. If the Secretary has decided that mid-axle height is the standard for 

berm size to prevent overtravel on an elevated road in a metal or nonmetal mine, and the 

protective purpose of the provision is to prevent injury from such a hazard, then that must be the 

standard for the same situation, even if in a different type of mine.

The Secretary cannot apply a different standard for coal mines and metal/nonmetal mines 

because there is no principled distinction. The laws of gravity and physics certainly will not 

recognize one, and a truck overtraveling an inadequate berm between a road and a long drop will 

produce the same tragic consequences in either case.

I also would point out that if the Secretary’s litigation position is in effect an exercise of 

her delegated rulemaking authority, then a failure to adopt the mid-axle standard in litigation

would be contrary to the Act’s requirement that “[n]o mandatory health or safety standard 

promulgated under this title shall reduce the protection afforded miners by an existing mandatory 

health or safety standard.” 30 U.S.C. § 811(a)(9).

That is what makes the abdication of responsibility in this settlement so disturbing. 

While the inspector in this case appropriately detailed the failure to meet the mid-axle height 

requirement, the proposed settlement disregards what must be effectively considered to be the 

applicable health and safety standard and the attendant consequences of that failure. 

The motion betrays an abject disregard of the Commission’s S&S standards and the 

safety of miners imperiled by the hazard described in this case. There is no consideration of the 

degree or extent of the deficiency here. I thus reject Respondent’s second contention and the 

Secretary’s acceptance of it as one whose proof at hearing would “lessen[] the likelihood of an 

accident or injury,” S. Mot. at 3, as contrary to the law and the safety purposes of the Act.

First, the limited facts that have been provided establish beyond debate that the hazard 

existed as described in the citation and would do nothing to make the case that an injury would 

not be reasonably likely to occur.
5

The motion’s contention and the posited facts are insufficient to challenge the likelihood 

of the contemplated hazard’s occurrence because the provision requiring berms is not qualified 

by roadway or environmental conditions. It does not say that berms are required only if the road 

is narrower than a designated, minimum width or when minimum visibility conditions are not 

met.

Nonetheless, the motion asserts that the berms are “capable of restraining a vehicle”

based on undefined “substantial construction” and “width,” two things that are not contemplated 

by the only standard the Secretary has applied to berms—height.

Nor does the motion suggest that this is not a roadway “usually traveled” by the largest 

vehicles at the mine. We cannot assume miner precaution, abatement, or other intervention. In 

sum, there is nothing to support the notion that this violation will not present a hazard of 

overtravel to the miners using this road.

Once the hazard has been found to be reasonably likely to materialize, it is an assumed

fact binding on the remainder of the analysis, and the likelihood of injury is evaluated based on 

the occurrence of that hazard. Newtown Energy, Inc., 38 FMSHRC 2033, 2038 (Aug. 2013). If I 

therefore reach the conclusion that the hazard—a vehicle falling from an elevated roadway due 

to inadequate berm height—is reasonably likely, then a contention regarding the width of the 

road or visibility would have no effect on the likelihood of injury.

The provision cited here does not expressly require berms to be “mid-axle height,” but 

both the Secretary and Respondent appear to have accepted it as a standard in their own 

agreement: “while not at the full required height . . . .” And as noted above, I must apply that 

standard because any other approach would be inconsistent with the Act and the Secretary’s 

now-binding interpretations of her own regulations.

Therefore, the applicable mandatory safety standard here, accepted by the parties and 

enshrined in the law, is the mid-axle height for the largest vehicle that usually travels this 

roadway. The motion does not challenge the inspector’s determination that this minimum height 

is 63 inches.

There are thus only two possible means of avoiding an S&S determination in this case. 

Either the violation would not significantly and substantially contribute to a hazard of 

overtraveling the inadequate berms, or the consequences of the overtravel would not be 

reasonably likely to result in serious injury or death.

The second contention is readily dispensed with. Any serious argument would have 

required some qualification or dispute of the inspector’s observation that the drop-off beyond the 

inadequate berms was 50 feet. The motion does not challenge the inspector’s observation. We 

therefore must accept as fact that a truck traveling over or through the berms would plummet or 

roll uncontrolled for that distance. Miners who know the consequences of serious overtravel 

have been seriously injured or killed trying to escape a truck that has encountered this hazard. 

See Solar Sources Mining, LLC, 43 FMSHRC 367, 382 n.1 (Aug. 2021) (Traynor, Chair, 

dissenting) (“Here, due to the deficiency in the berm, the dump truck’s back wheel over-traveled 
6

the ledge of the dump site, fell and flipped upside down into the slurry pit approximately 48 feet 

below. The driver escaped almost certain death by leaping from the truck’s cab before it 

descended over the ledge. The jump and fall resulted in a broken foot that required multiple 

surgeries to reconstruct using donated bone, steel and screws.”).

That leaves only the possibility that there was no reasonable likelihood that the trucks 

would overtravel the substandard berms. This, too, is logically untenable under the facts 

presented.

Worth noting is the extent of the violations. The berms failed to meet the height deemed 

necessary to protect miners for lengths ranging from one hundred to more than one thousand 

feet. Nowhere does the motion address the effect the extensive nature of the violation might 

have on the likelihood of a truck encountering a berm that was not constructed as required to 

prevent overtravel.

It is also important to note that the berm heights were not cited because they technically 

failed to meet the Secretary’s standards or were marginally deficient. When measured, the 

height of some of the berms was between 24 and 30 inches—less than half (and perhaps as little 

as 40 percent) of the required height.

It is possible to make a principled, cogent argument questioning whether the degree of a 

violation would be sufficient to support an S&S designation. See ICG Illinois, LLC, 38 

FMSHRC 2473, 2483–92 (Oct. 2016) (Althen, Comm’r, dissenting) (noting the lack of record 

evidence showing that an 11-percent exceedance in distance of refuge chamber from working 

face would impair the ability of miners to reach and use the chamber in an emergency). The 

motion completely fails to note any deficiency in the facts they have chosen to present, which 

establish these violations as S&S.

Commission precedent also forecloses the motion’s assertion that these violations might 

not be found to be S&S at hearing. The berms here were similar to those in The Hanna Mining 

Co., and the drop-off was significantly higher than that found sufficient for S&S in Buffalo 

Crushed Stone, Inc. Indeed, degree of danger, as described in the facts the parties have chosen 

to present, is extraordinary, and there is no rational basis upon which one might conclude that 

these violations, as defined in the citation and affirmed by the facts presented in support of the 

motion, are not S&S.

Rather than adequately challenging any of the Mathies elements, the facts provided 

instead abundantly support the conclusion that the violations must be affirmed as S&S. The 

cited berm heights were inadequate, sufficient for a finding of violation; overtravel and a 

substantial fall was reasonably likely due to that inadequacy, because the reasoned judgment of 

the Secretary has determined what must be provided, and the cited berms are woefully short of 

that standard; an injury was self-evidently likely to result from the 50-foot fall in heavy 

equipment; and permanent disability or death was the foreseeable consequence of that fall. The 
7

facts presented therefore do not enable me to conclude that the Secretary has not abused her

discretion in removing the designation; I would abuse mine if I approved the settlement.4

The Secretary also continues to incorrectly assert the ability to exercise discretion to 

remove an S&S designation as part of a settlement, citing American Aggregates of Michigan, 

Inc. and Mechanicsville Concrete, Inc. to claim this unfettered discretion. S. Mot. at 3–4. These 

cases are known by now to be invalid as authority for the principles they claim to represent.

Mechanicsville stated that a judge may not add an S&S designation on his or her own 

initiative. 18 FMSHRC 877, 880, 882 (June 1996). This action involves a proposal to delete one 

in settlement. American Aggregates stated, “Commission Judges do not have the discretion to 

make [an S&S finding] unless it is asserted in the first instance by MSHA.” 42 FMSHRC 570, 

576 (Aug. 2020). Here, the finding was asserted by MSHA in the first instance. Further, that 

decision reversed a judge’s settlement denial because he ignored multiple provided facts relevant 

to the proposed modifications. Id. at 577, 581. The motion here does not provide facts that 

challenge the S&S designation. Neither, therefore, is applicable to the situation here.

Commission judges have repeatedly criticized the Secretary’s use of Mechanicsville 

Concrete and American Aggregates of Michigan in this context as a blatant misstatement of the 

law. As one such order recently noted, “Attorneys have an obligation not to misstate case law.”

Decision Approving Settlement with Significant Reservations, Docket No. PENN 20222-0129, at 

6 (Apr. 25, 2023) (ALJ) (citing Teamsters Local No. 579 v. B&M Transit Co., 882 F2d. 274, 280 

(7th Cir. 1989)). The court in Teamsters Local No. 579 approved the imposition of Rule 11 

sanctions for the transgression.

There are minimum standards of practice in every tribunal, including this one. Erroneous 

mischaracterizations of precedent fail to meet those standards and will not be tolerated. A CLR 

who cites these cases, falsely, in a subsequent motion as they have been cited here may be barred 

from practice before me.5 There may be other consequences.

IT IS ORDERED that the motion to approve settlement is DENIED.

 

 Michael G. Young 

Administrative Law Judge

4 This does not constitute a finding of violation or S&S; I have not required the Secretary to 

establish such. I merely note that the limited facts the parties have chosen to provide would 

preclude a non-S&S finding for this violation.

5 Although these cases were included by a pleading drafted by a CLR, I would expect an attorney 

to know better, and a transgression against the law of this sort by an attorney would be even 

more egregious.
8 

Distribution (by email):

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

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

Jonathan R. Ellis, STEPTOE & JOHNSON PLLC, Chase Tower, Seventeenth Floor, P.O. Box 

1588, Charleston, WV 25326, jonathan.ellis@steptoe-johnson.com 

Dana L. Ferguson, Office of the Solicitor, U.S. Dep’t of Labor, 201 12th Street South, Suite 401, 

Arlington, VA 22202, ferguson.dana@dol.gov 
Exhibit D 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

May 11, 2023

ORDER DENYING MOTION TO APPROVE SETTLEMENT 

AND STRIKING MATERIAL FROM MOTION

On April 25, 2023, a Commission ALJ issued an order noting with disapproval the 

Secretary’s ongoing citation to Mechanicsville Concrete, Inc., 18 FMSHRC 877, 880, 882 (June 

1996), as authority for her removal of the significant and substantial designations from citations 

during the settlement process. See Decision Approving Settlement with Significant 

Reservations, Docket no. PENN 2022-0129, at 4–6 (Apr. 25, 2023) (ALJ) (“Reservations”). 

Commission judges have routinely observed that Mechanicsville, and the also oft-cited American 

Aggregates of Michigan, Inc., 42 FMSHRC 570, 576 (Aug. 2020), cannot support the premise 

for which they have been cited.1

In this instance, though, the Judge correctly pointed out that parties have a duty not to 

misstate case law and that such misconduct has been affirmed as sanctionable under Rule 11 of 

the Federal Rules of Civil Procedure. See Reservations at 6 (citing Teamsters Local No. 579 v. B

& M Transit, Inc., 882 F.2d 274, 280 (7th Cir. 1989)). 

Following this, I issued an order on May 3 denying a motion to approve settlement, in 

which I said that the continued citation to these cases as authority for the removal of S&S 

designations falls below the minimum standards of practice before the Commission. See Order 

Accepting Appearance and Denying Motion to Approve Settlement, Docket No. WEVA 2023-

0071, at 7 (May 3, 2023) (ALJ). I said that a conference and litigation representative who 

submitted a motion with such citations would be barred from practice before me. Id.

1 See Decision Approving Settlement, Docket No. SE 2023-0046, at 2 (Apr. 24, 2023); Order 

Denying Settlement, Docket No. WEST 2022-0249, at 5 (Nov. 2, 2022) (ALJ); Order Denying 

Settlement, Docket No. WEST 2022-0267 & WEST 2022-0268, at 11 (Oct. 18, 2022) (ALJ).

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner

 v. 

CONSOL MINING COMPANY LLC,

 Respondent 

 CIVIL PENALTY PROCEEDING

 Docket No. WEVA 2023-0141 

 A.C. No. 46-09569-568207 

 Mine: Itmann No. 5
I also said that there might be other consequences. I noted that an attorney should know 

better, and that such misstatements of the law by an attorney would be even more egregious. Id.

at 7 n.5. The supervising attorney for the Labor Department’s CLR’s was included in the 

distribution for the order.

On May 9, the Secretary filed with the Commission a Motion to Approve Partial 

Settlement, which again included the offending citations to Mechanicsville and American 

Aggregates. See S. Mot. to Approve Partial Settlement, Docket No. WEVA 2023-0141, at 3

(May 9, 2023). Not only is the recitation of these cases obviously inappropriate; it is 

impertinent. To my knowledge, no Commission judge has agreed with this mischaracterization 

of the law, and I have approved dozens of S&S removals without ever considering either case as 

authority for the removal. Rather than adhering to the clearly-expressed expectations of the 

Commission’s judges, the Secretary has continued to recite this non-sequitur any time an S&S 

designation is proposed for removal in a settlement.

An attorney for a government agency who misstates the law arrogates the properly 

conferred constitutional authority of others to determine what the law is. Like bridge scour, this 

subtle corrosion wears on the foundation of the rule of law and threatens the integrity of a 

structure upon which the public depends.

While the full array of sanctions under Rule 11 may not be available as a corrective, I 

have made clear that misleading use of precedent fails to meet the minimum standards of 

practice before the Commission. Its redress begins with a refusal to accept the unacceptable. By 

this order, I therefore STRIKE the reference to the cited cases and the assertions they 

purportedly support.

2

Striking material, and even professional sanctions, are appropriate responses to bad faith 

employment of case law. See Collar v. Abalux, Inc., 806 Fed. Appx. 860, 864 (11th Cir. 2020) 

(affirming sanctions where an attorney continually misstated the import of case law); KamdemOuaffo v. Huczko, 810 Fed. Appx. 82, 83 (3d Cir. 2020) (citing Fed. R. Civ. P. 12(f)) (noting that 

impertinent analysis of law is “plainly vulnerable to [] remedial strike”). Striking the impertinent 

matter from the motion is the least severe sanction I could impose in these circumstances. As 

with the Mine Act, those who persist in the discredited and misleading use of precedent should 

reasonably anticipate that their conduct will be deemed knowing or intentional and will be 

addressed with progressive severity until the practice is discontinued.

The motion to approve settlement is DENIED without reaching the merits. This denial 

will be reconsidered if the parties refile the motion without the noted language, see supra note 2. 

The parties should anticipate that the matters addressed by the motion will be resolved at hearing 

2 The language to be stricken from the motion reads: “Taking into account the uncertainty of the 

outcome of these issues at trial, the Secretary has decided to exercise her discretion to modify the 

gravity to unlikely and not S&S as recognized in Am. Aggregates of Michigan, Inc., 42 

FMSHRC 570, 576-79 (Aug. 2020) (citing Mechanicsville Concrete, Inc., 18 FMSHRC 877, 

879-80 (June 1996)).” Mot. at 3.
unless and until a motion that meets the standards of practice before the Commission has been 

filed.

 Michael G. Young

Administrative Law Judge 

Distribution: 

Robert S. Wilson, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite 

401, Arlington, VA 22202-5450, wilson.robert.s@dol.gov 

D. Cass Trent, CLR, U.S. Department of Labor, MSHA, 4499 Appalachian Hwy, Pineville, WV 

24874, trent.david@dol.gov 

Jim McHugh, Hardy Pence LLC, 10 Hale Street, 4th Floor, P.O. Box 2548, Charleston, WV 

25329, jmchugh@hardypence.com 

Craig Aaron, CONSOL Energy Inc., 275 Technology Drive, Suite 101, Canonsburg, PA 15317, 

craigaaron@consolenergy.com