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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

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

January 24, 2023

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner

v. 

APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2022-0554 

AC No. 46-08626-560349 

Mine: Tug Fork Preparation Plant

DECISION APPROVING SETTLEMENT

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

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

Motion to Approve Settlement for the citations and orders involved in this matter. The parties 

move to modify one citation, as stated below. The total penalty would be reduced from the 

original assessed amount of $1,365.00 to $511.00. This represents a 63% reduction in the 

overall penalty for this docket. 

Citation/Order MSHA’s

Proposed 

Penalty

Settlement

Amount

Other modifications to citation/order

9566748 $1,069.00 $215.00 Violation of 30 C.F.R. § 77.1606 (c). 

Penalty reduction of 80%

9566745 $296.00 $296.00 Violation of 30 C.F.R. § Sustained as 

Issued - No penalty reduction

TOTAL $1,365.00 $511.00 Total penalty reduction of 63%

 

Citation No. 9566748 was regularly assessed at $1,069.00. It involved a nowadmitted violation of 30 C.F.R. § 77.1606(c). That standard pertains to loading and haulage 
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equipment and its inspection and maintenance. The cited subsection (c) provides that 

“[e]quipment defects affecting safety shall be corrected before the equipment is used.” 

The citation described the condition as follows: “The Co. No. 541, 733D Caterpillar 

haul truck, is not being maintained free of defects affecting safety, as required. When 

checked, the offside railing at the top of the ladder is broke free in all but one spot, allowing 

the railing to move back and forth. This truck is operated 5 days per week, 12 hours per 

day. Left uncorrected, this condition, will expose the miner(s) to hazards associ[iat]ed with 

falling from elevated heights, causing permanently disabling injury[] to the miner(s). From 

the ground to the landing where the railing is broke free is approx. 8-9 feet. The operator 

immediately removed the truck from service until repairs are made.” 

Petit. for civil penalty at 10. 

Evaluating the violation, the inspector marked the injury as reasonably likely to 

occur with permanently disabling injuries. Accordingly, the inspector listed the violation 

as “significant and substantial.” Negligence was marked as ‘low.’ Id.

The violation was terminated the same day with the inspector stating that “[a] 

qualified person has replaced/corrected the condition, the railing now appears to be secure 

to the machine.” Id.

In support of the 80% (eighty percent) reduction in the penalty, resulting in a penalty 

of $215.00, from the original regular assessment of $1,069.00, the Secretary offers the 

following:

The Respondent contends that the gravity was over-evaluated and should

not have been issued as “reasonably likely” and “S&S”. Respondent would 

argue at hearing that the condition cited is not a discrete safety hazard to 

miners. Respondent contends that the equipment operator is not routinely 

exposed to the off-side railing, which is not in the access path to the 

operator’s cab. Additionally, the Respondent would argue that the railing 

was loose, but still intact and would still perform the necessary duties to 

prevent a miner from falling from the elevated platform. The Secretary has 

exercised his discretion to modify the significant and substantial 

designation associated with citation #9566748 and to modify the penalty 

per part 100.3 accordingly.

Motion at 3.

The Court is dismayed that the Secretary has bought into the Respondent’s argument 

that the hazard is unlikely to occur. Given all the attendant conditions associated with this 

violation: that the offside railing at the top of the ladder was broken free in all but one spot, 

allowing the railing to move back and forth and given that the truck is operated 5 days per 
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week, 12 hours per day and given that a fall involved 8 to 9 feet, a height which presumptively 

would result in a permanently disabling injury, the Secretary’s agreement is hard to understand.

Not one of the conditions noted by the inspector is disputed.

The Court notes that if the inspector had taken a photograph of the hazardous condition 

he found, the Secretary might have been foreclosed from agreeing to this de minimis penalty. 

That agreement is coupled with the Secretary’s oft-claimed assertion that he can remove 

a significant and substantial designation with impunity. That is incorrect. In a motion, the 

Secretary can assert that a violation was unlikely to occur, but it is only by that redesignation 

that a non-significant and substantial violation may follow. As the Court has informed many 

times before, the cases cited by the non-attorney representative do not stand for the notion that 

he can independently drop a significant and substantial designation, as if by an edict. 

The two cases continually cited by the Secretary, Am. Aggregates of Michigan, Inc., 42 

FMSHRC 570, 576-79 (Aug. 2020) and Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879-

80 (June 1996)) do not support the claim that the Secretary may peremptorily delete a 

significant and substantial finding. Such a modification can only occur upon determining that at 

least one of the two elements of such a finding is missing: that a reasonably likelihood of 

reasonably serious injury was not present. 

A seemingly impenetrable wall, as noted above, CLRs continue to assert that “[t]he 

Secretary has exercised [the] discretion to modify the significant and substantial designation 

associated with citation #9566748 and to modify the penalty per part 100.3 accordingly. The 

Secretary may exercise that discretion as part of a settlement. Am. Aggregates of Michigan, Inc., 

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

879-80 (June 1996)).” Motion at 3. 

Mechanicsville only holds that the judge may not essentially make a prosecutorial 

decision to designate a citation as S&S in the first instance, as that is an exercise of enforcement 

authority reserved for the Secretary. Thus, presented with a citation with no significant and 

substantial designation, a judge may not add that designation on his or her own.1 

Am. Aggregates simply echoes Mechanicsville, holding “[w]hether a violation is S&S is a 

matter in the first instance of prosecutorial discretion. The Mine Act, therefore, recognizes the 

particular expertise of MSHA in judging whether a violation is S&S. Indeed, if MSHA does not 

1 In Mechanicsville, 18 FMSHRC 877, (June 1996), the Commission held that it agreed “with 

the Secretary that the judge erred in determining on his own initiative that the violation was 

S&S. ... [Referring to another of its decisions the] Commission reasoned that the modification 

was not appropriate because the judge added new findings to create a section 104(b) 

order. ... Here, the judge similarly 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 879-880. (citations omitted).
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charge an S&S violation, the Commission cannot make an S&S finding. Mechanicsville 

Concrete, Inc., 18 FMSHRC 877, 879-80 (June 1996). Commission Judges do not have the 

discretion to make such elevated finding unless it is asserted in the first instance by MSHA.” 

Am. Aggregates at 576 (emphasis added). 

Make no mistake, here both citations in this Appalachian Resource docket were 

designated by the MSHA inspector as significant and substantial. Thus, clearly, Am. 

Aggregates and Mechanicsville do not apply. The Court does not criticize the CLRs for 

habitually inserting this claim; no doubt they do it at the behest of attorneys for the Secretary, as 

the CLRs are not attorneys, and it is unlikely that they all developed an analysis of the cases 

cited on their own. That the Secretary may have this position on its wish list is not the same 

thing, as Commission decisions have not, up to this point, agreed with that claim. The Court 

has pointed this out several times before, but no doubt the CLRs will continue to cite those 

inapposite holdings, because they are told to do so. 

The unsafe railing violation must also be viewed in context.

Earlier on the same day as the defective railing violation was found, the inspector found 

a second, significant, violation on the same piece of equipment. The inspector found that the 

equipment operator of this haul truck was not wearing the seat belt, citing 30 C.F.R. §77.403-

1(g), with its requirement that “[s]eat belts required by § 77.1710(i) shall be worn by the 

operator of mobile equipment required to be equipped with ROPS by § 77.403-1.” 

As with the other violation associated with this truck, the inspector marked an injury 

occurrence as ‘reasonably likely’ to occur, producing lost workdays or restricted duty, although 

in his evaluation he stated that the “condition will cause and or contribute to an accident of a 

reasonably serious nature, when the driver will receive fractures and lacerations, resulting in at 

least lost workdays or restricted duty.” Petit at 9. 

Thus, two noteworthy hazards were at play with the same truck, hazards which were not 

divorced from one another. Both, at least by the view of the issuing inspector, were significant 

and substantial. To the Court, the distinguishing feature is that the seatbelt violation only 

involved $296.00, while the railing violation was assessed at $1,069.00. As the Court has 

remarked in numerous cases, it does appear that the larger assessments are the ones most often 

subjected to significant penalty reductions, with the minimal penalties more often paid as 

assessed. Whether this frequent result is mere happenstance is unknown. 

Reasonable Inquiry is not Permitted

Despite the Court’s analyses and expressed concerns for Citation No. 9566748, it is not 

permitted to make reasonable inquiry about the contentions advanced in settlement motions. 

This is because, under the Commission’s interpretation of section 110(k) of the Mine Act, 

Congress only intended that the three elements as laid out in AmCoal and Rockwell Mining, LLC, 

40 FMSHRC 994 (Aug. 2018), need be considered under the Commission’s standard for review 
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of settlement submissions. The settlement motion does not require more information from the 

Secretary. 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. 

The Commission has stated that the administrative law judges have “front line 

oversight” of the settlement process and as such that it is an adjudicative function that 

“necessarily involves wide discretion.” Despite those muscular words, the Commission has 

clearly set forth that the Secretary is not required to offer any comment at all as to the merits of 

the Respondent’s arguments. 

Per the Commission’s decisions in AmCoal and Rockwell Mining, to approve a settlement 

motion there are three requirements. Meeting the first two requirements is automatic and 

perfunctory. 

(1) The motion must state the penalty proposed by the Secretary. 

This requirement is met in every civil penalty petition, as the petition contains the 

proposed penalty. The amount is rarely, if ever, an issue, and if in issue, it is resolved 

before the penalty petition is filed.

(2) The amount of the penalty agreed to in settlement. 

This requirement is also automatic; there could not be a settlement motion without the 

parties stating the penalty amount to which they have agreed.

(3) “Facts,” as the Commission has employed that term, in support of the penalty 

agreed to by the parties. 

In the context of settlement motions, “facts” have an atypical meaning.2 In discussing 

what constitute “facts” for settlements, the Commission stated “there is no requirement 

that facts supporting a proposed settlement must necessarily be submitted by the 

Secretary. Facts supporting a penalty reduction in a settlement motion may be provided 

by any party individually or by parties collectively.” AmCoal at 990. The only associated 

requirement with such “facts” is that “there is a certification by the filing party that any 

non-filing party has consented to the granting of the settlement motion.” Id. (emphasis 

added). 

2 In settlements, “facts” do not mean things that are known or proved to be true, nor does the 

term mean something that has actual existence, or a piece of information presented as having 

objective reality. Fact, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/fact (accessed Nov. 18, 2021). Accordingly, in settlements, a fact does 

not mean something that is true, nor is there a requirement that a statement of fact be verifiable.
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Accordingly, the Commission rejected the view that a respondent’s assertions of fact 

need to “present legitimate questions of fact,” and further that the Secretary need not comment 

yea or nay to the facts asserted by a respondent. Instead, the Commission announced that “[f]acts 

alleged in a proposed settlement need not demonstrate a ‘legitimate’ disagreement that can only 

be resolved by a hearing.” Instead, the Commission allows that parties may submit facts that 

reflect a mutual position that the parties have agreed is acceptable to them ... ” Id.

It should not come as a surprise that, under the Commission’s AmCoal test for review of 

settlements, all such motions are approved. In the rare instances where a judge has denied a 

settlement motion, post-AmCoal, those decisions have met with reversals by the Commission. 

Hopedale Mining, 42 FMSHRC 589 (Aug. 2020), American Aggregates, 42 FMSHRC 570 

(Aug. 2020) (Chairman Traynor and Commissioner Jordan, dissenting).

As the motion meets the Commission’s standard for approving settlement motions and as 

the Court is duty-bound to faithfully apply the Commission’s present decisional holdings 

regarding review of settlement motions according to the way the Commission has interpreted its 

review responsibilities under the unique review provision set forth in section 110(k) of the Mine 

Act and, applying those holdings, the Court determines that this settlement, as with all settlement 

motions presented to this Court post-AmCoal, also meets the Commission’s review criteria and 

therefore the motion is to be approved as appropriate.

Typically found in the Secretary’s motions for approval of settlement is language along 

the lines that the parties seek to have the Court accept that it acknowledges and accepts the 

explanation for the agreed upon settlement contained in the parties’ settlement motion and 

amendments. In this instance, the Secretary includes as proposed language that the Court has 

“considered the representations and documentation submitted, f[ound] that the assessment is 

reasonable and . . . conclude[d] that the proposed settlement is appropriate under the criteria set 

forth in section 110(i) of the Act” Draft Order at 3. The Court cannot subscribe to such 

language.3 Rather, the Court’s review of settlement motions is confined to comparing the 

parties’ motion with the three criteria set forth by the Commission in its decisions in The 

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

FMSHRC 994 (Aug. 2018). 

The Court has considered the motion in the context of comparing it with the 

Commission’s AmCoal decision and finds that it meets that decision’s standard of review. 

3 Nor does the Court endorse, or agree with, the assertions commonly found in the Secretary’s 

motions for approval of settlements in which the Secretary claims that a final resolution of this 

matter in which all violations are resolved is of significant enforcement value to the Secretary. 

Motion at 2 (emphasis added). Such boilerplate claims are almost always hollow, in view of the 

actual modifications and penalty reductions that makeup these motions.
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Accordingly, on that basis only, the motion to approve settlement is GRANTED, Citation No. 

9566748 is MODIFIED as set forth above and Respondent Appalachian Resource West 

Virginia, LLC, is ORDERED to pay the Secretary of Labor the sum of $511.00, as opposed to 

the initial total proposed penalty of $1,365.00, within 30 days of this decision.

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 ___________________ 

William B. Moran

Administrative Law Judge

Distribution:

K. Brad Oakley, Esq., Jackson Kelly PLLC, 100 W. Main Street, Suite 700

Lexington KY 40507, kboakley@jacksonkelly.com 

David C. Trent, Conference & Litigation Representative, U.S. Department of Labor, MSHA 

4499 Appalachian Highway, Pineville WV 24874 Trent.david@dol.gov

4 It is preferred that penalties 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 important to include Docket and A.C. Numbers with the payment.