ON APPEAL TO THE COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor, Mine Safety and Health 

Administration (MSHA),

Petitioner

v.

Hopedale Mining LLC,

Respondent

No. LAKE 2019-0149

Petition for Discretionary Review

The Secretary of Labor petitions the Federal Mine Safety and Health Review 

Commission to review the decision of a Commission administrative law judge issued on June 24, 

2019, in this case. The ALJ made four legal errors, all of them intertwined: she did not apply (or 

did not correctly apply) the American Coal standard for reviewing settlements; she issued a 

subpoena to obtain evidence in connection with settlement; she convened a hearing that denied 

the parties the right to seek interlocutory review by the Commission; and she vacated four 

citations even though the parties stipulated that the violations occurred.

The Secretary seeks review of the decision on the grounds that (1) findings of fact are not 

supported by substantial evidence, (2) the decision is contrary to law and to Commission 

decisions, (3) a prejudicial error of procedure was committed, and (4) a substantial question of 

law, policy or discretion is involved. See 30 U.S.C. § 823(d)(2)(A)(ii); 29 C.F.R. § 2700.70(c).
1

Introduction

After MSHA issued four § 104(a) citations to Hopedale Mining, LLC, the Secretary and 

Hopedale reached a settlement agreement: Hopedale agreed to accept all four violations and their 

S&S designations, while the Secretary agreed to reduce the negligence associated with each 

violation and to reduce the gravity associated with two. Three times, the parties gave the ALJ 

more and more facts in support of this settlement. And three times, the ALJ denied it.

The AmCoal standard (whether a settlement is fair, reasonable, appropriate, and in the 

public interest) governs the Commission’s review of settlement motions. The ALJ here did not 

apply that standard. She determined, based on her interpretation of the facts, that they did not 

justify the modifications; the AmCoal standard, however, is not whether an ALJ agrees with any 

particular modification, but whether the settlement as a whole is sufficient. She determined that 

the facts did not meet the Commission’s definition of low negligence; the AmCoal standard, 

however, is not whether the facts establish any particular level of negligence or whether they 

match a definition of negligence that does not apply during review of settlements. And she 

refused to consider any facts other than the § 110(i) penalty factors, including the significant 

future enforcement value of S&S citations; AmCoal, however, requires ALJs to consider these 

nonmonetary factors.

The ALJ also erred by subpoenaing an MSHA inspector while a settlement motion was 

pending. This effectively sought to compel a party to provide testimony and documentary 

evidence during the ALJ’s review of a settlement which, under Commission Rule 31 and § 113(e) 

of the Mine Act, ALJs do not have the authority to do.

Attempting to correct these errors before a hearing, the Secretary filed a motion to certify 

the ALJ’s rulings for interlocutory review. The ALJ denied the motion, but she did not give the 
2

Secretary the opportunity to seek interlocutory review by the Commission, even though 

Commission Procedural Rule 76(a)(1)(ii) gives the Secretary that right. Instead, the ALJ erred by 

compelling the parties to appear at a hearing.

The hearing led to even more errors. The Secretary and Hopedale stipulated that all four 

violations occurred, but the ALJ rejected those stipulations and vacated the citations. This

rejection ignored the principle that stipulations are sufficient to establish facts and threatens to 

undermine the common (and useful) practice of using stipulations at hearings. Moreover, the 

ALJ’s decision that the facts did not establish even a violation cannot be reconciled with her 

finding that the facts were so egregious that they did not justify any reductions in negligence or 

gravity.

Statement of the Issues

(1) Did the ALJ abuse her discretion by failing to apply the AmCoal standard and by rejecting 

the settlements?

(2) Did the ALJ lack the authority to compel testimony and documents during her review of a 

settlement?

(3) Did the ALJ deny the Secretary the procedural right, under Commission Rule 76(a)(1)(ii), 

to seek interlocutory review by the Commission?

(4) Did the ALJ err by rejecting the joint stipulations? And is her decision unsupported by 

substantial evidence?
3

Statement of the Case

This case arose out of a December 4, 2018 inspection of the Hopedale Mine, an 

underground coal mine in Harrison County, Ohio. MSHA Inspector John William Dye issued 

four citations alleging violations of 30 C.F.R. § 75.370(a)(1), for failure to follow the mine’s

ventilation plan:

• Citation No. 8055975 alleged a failure to provide 3,000 cfm of air where a roof bolter 

was operating. The anemometer measured 2,792 cfm behind line curtain. It was 

designated as S&S and the result of moderate negligence, and as reasonably likely to 

cause injury or illness.

• Citation No. 8055976 alleged a failure to remove a tail curtain, exposing miners to 

dust generated by the continuous mining machine. It was designated as S&S and the 

result of high negligence, and as highly likely to cause injury or illness.

• Citation No. 8055977 alleged that only 19 of the 30 required water sprays were 

operating on the continuous mining machine. It was designated as S&S and the result 

of moderate negligence, and as highly likely to cause injury or illness.

• Citation No. 8055978 alleged that only 10 inches of the required 12 inches of mercury 

was provided in the roof bolter vacuum. It was designated as S&S and the result of 

moderate negligence, and as reasonably likely to cause injury or illness.

Hopedale and the Secretary negotiated a settlement agreement. Hopedale agreed to 

accept all four violations and all four S&S designations. The Secretary agreed to reduce the 

negligence associated with each citation by one level (i.e., from high to moderate or from 
4

moderate to low) and to reduce the gravity associated with Citations Nos. 8055976 and 8055977 

from highly likely to reasonably likely to cause injury or illness.

On March 25, 2019, the Secretary filed a motion to approve the settlement. Appeal Ex. 

A.1 The motion gave these facts in support of settlement:

• For Citation No. 8055975, the section supervisor’s air reading showed 3,200 cfm 

behind the line curtain just before Dye arrived. Dye’s notes confirm that the foreman 

stated he had over 3,000 cfm before operating the roof bolter. This justified reducing 

the negligence to low.

• For Citation No. 8055976, Hopedale provided CPDM samples for shuttle car 

operators, which were below the 1.5 mg/m3 limit. Dye’s notes confirm that 

management did not know about the violation. This justified reducing the negligence 

to moderate. The CPDM samples and short duration of miners’ exposure supported 

reducing the gravity from highly likely to reasonably likely to cause injury.

• For Citation No. 8055977, Dye’s notes confirm that management did not know about 

the violation, which justified reducing negligence to low. The CPDM samples and 

short duration of miners’ exposure supported reducing the gravity from highly likely 

to reasonably likely.

• For Citation No. 8055978, Dye’s notes confirm that the roof bolter parameters were 

compliant at the beginning of the shift, which justified reducing the negligence to low.

 1 The exhibits attached to this PDR are designated “Appeal Ex. __” to distinguish them from 

the exhibit designations used before the ALJ. The designations on appeal appear in the top left 

corner of the exhibits.
5

That same day, the ALJ emailed the parties to tell them that she would not approve the 

settlement. Four days later, the ALJ set a hearing for April 24.

Unbeknownst to the Secretary, and without a request by either party, on April 10, the 

ALJ signed a subpoena for Dye. It ordered him to appear at the hearing to testify, and to “bring 

all notes, photographs, and documents associated with the 12/4/2018 inspection at the Hopedale 

mine and the citations at issue in this docket.” Appeal Ex. B.

Hopedale and the Secretary, meanwhile, continued to develop an amended settlement 

motion. The Secretary filed the amended motion on April 15. Appeal Ex. C. It gave these 

additional facts to support the modifications:

• For Citation No. 8055975, the air measured by the inspector (2,792 cfm) was 93% of 

what the plan requires, and the difference is not easily detectable.

• For Citation No. 8055976, the foreman was at the continuous mining machine but did 

not know the curtains had not been adjusted before the machine was operated.

• For Citation No. 8055977, the location of the plugged sprays made it difficult to see 

them, and there was no dust “rolling” in the area. The inspector’s notes confirm that 

the sprays were operational at the start of the shift and had recently been checked.

• For Citation No. 8055978, the difference between 10 and 12 inches of mercury was 

difficult to detect.

The next day, because the hearing was still scheduled, the parties submitted their 

prehearing statements. These stated that the parties would submit joint stipulations but did not 

plan to call any witnesses. The Secretary also submitted a copy of the joint stipulations, which 

included the facts that the parties had submitted in support of the settlement. Appeal Ex. D. The 
6

parties stipulated that all four violations occurred and were S&S, and that the negligence and 

gravity designations were those they had agreed to in settlement.

The next day, on April 17, a Commission representative served the subpoena on Dye at 

MSHA’s Morgantown, West Virginia, field office. Appeal Ex. B. That same day, the ALJ denied 

the amended settlement motion. Order Denying Amended Motion for Settlement, LAKE 2019-

0149 (Apr. 17, 2019) (“Ord.”).2 She did not consider the Secretary’s statement that the accepted 

violations have future enforcement value; instead, she “rel[ied] on the Commission direction to 

address Sections 110(i) and 110(k) of the Act.” Ord. 2 n.1 (citing Am. Coal Co., 38 FMSHRC 

1972, 1981–82 (Aug. 2016)). The ALJ also reasoned that the facts did not support the 

modifications. Ord. 3.

The next Monday, April 22, the Secretary filed a motion (1) for reconsideration of the 

denials of the settlement, or (2) to revoke the subpoena, or (3) to certify the case for interlocutory 

review and stay the case pending interlocutory review. Appeal Ex. E. The ALJ did not rule on the 

motion, and two days later, she convened the hearing in Pittsburgh.

The parties—including Dye, under the compulsion of the subpoena—appeared at the 

hearing. See Tr. 3–4, 36–37. (Dye was away from his inspection work for an entire day to travel to 

and from the hearing.) They defended the settlement, but the ALJ stated that she would, for the 

third time, reject it. Tr. 19. The parties then reiterated their intent to rely on joint stipulations 

and submitted a revised set of stipulations. JX-2. The parties stipulated that all four violations 

occurred, that all four were S&S, and that the negligence and gravity they had agreed to in 

 2 The order is attached to this PDR as Addendum 1.
7

settlement were accurate. JX-2. They also stipulated to even more facts that supported the 

modifications made in settlement:

• For Citation No. 8055975, as the continuous mining machine advances, it moves 

farther from the source of air, potentially resulting in a reading lower than what is 

required by the plan but that is not readily discernable to a miner. Dye had not 

considered this when the citation was issued.

• For Citation No. 8055976, Dye did not know about the CPDM levels or foreman’s 

lack of knowledge, and there was no evidence that any miner was exposed to 

respirable dust that exceeded the 1.5 mg/m3 standard. Hopedale had never previously 

been cited for a violation of this plan provision.

• For Citation No. 8055977, Dye did not know about the CPDM levels or lack of 

“rolling” dust, and there was no evidence about how long the sprays were down or 

that the respirable dust exceeded the standard.

• For Citation No. 8055978, Dye did not consider the difficulty detecting the difference 

in mercury or management’s lack of knowledge, and there was no evidence about how 

long the low mercury existed.

The ALJ stated that she would not accept the stipulations in place of testimony and other 

evidence. Tr. 27, 34. She also stated that she would vacate the citations because the Secretary 

had not met his burden of proof. Tr. 40.

The ALJ’s Decision

In the first part of the decision, incorporating her April 17, 2019 order denying the 

amended motion for settlement, Dec. 3, the ALJ denied the settlement once more. Dec. 2–5. 
8

Generally, the ALJ reasoned that the information the parties provided “did not support the 

proposed reductions to gravity and negligence.” Dec. 4. The ALJ also denied the Secretary’s 

motion for reconsideration of her settlement denial. Dec. 5–7.

The ALJ also denied the Secretary’s motion to revoke the subpoena. Dec. 8–9. She 

acknowledged the Secretary’s position (which he has advanced in a case pending before the 

Commission3) that ALJs may not compel a party to produce documents when reviewing a 

settlement. Dec. 9. But she reasoned that this case involved an ALJ’s authority to compel 

documents at a hearing, which is authorized by § 113(e) of the Mine Act. Dec. 9 (citing 30 U.S.C. 

§ 823(e)).

Finally, the ALJ vacated the citations. Dec. 9–17. She rejected the parties’ stipulations 

that the violations had occurred and were S&S, as well as the other stipulations, but relied upon

the “factual information” they contained to analyze the violations. Dec. 9–10. For all four 

violations, the ALJ concluded that the facts did not support reducing the negligence or gravity. 

Dec. 10–17. She also concluded, inconsistently, that the Secretary had not met his burden to 

prove even the fact of the violation for all four citations. Dec. 10–17.

Argument

1. The ALJ did not apply the AmCoal standard in her decisions denying settlements.

When reviewing settlement motions, ALJs must determine “whether the proposed 

reduction in penalties is fair, reasonable, appropriate under the facts, and protects the public 

interest.” Am. Coal Co., 38 FMSHRC 1972, 1982 (Aug. 2016) (AmCoal I). They must both 

 3 Solar Sources Mining, LLC, No. LAKE 2017-52 (argued May 22, 2019).
9

articulate and apply that standard. Am. Coal Co., 40 FMSHRC 983, 988 (Aug. 2018) (AmCoal II).

To determine whether a settlement satisfies the standard, ALJs must consider the settlement in 

its entirety, including the penalty criteria from § 110(i); considerations other than the penalty 

criteria, such as the value of preserving citations for future enforcement; and other nonmonetary 

aspects of the settlement. Id. at 989. ALJs may not “assign[] probative value to some facts 

without the benefit of an evidentiary hearing.” Id. at 991. The Commission reviews an ALJ’s 

denial of settlement for abuse of discretion. Id. at 987.

The ALJ abused her discretion because she did not apply the AmCoal standard. Her 

denial was based on her belief that the facts did not justify reduced negligence or gravity 

designations and did not match the Commission’s definition of low negligence. Dec. 3–4. The

AmCoal analysis, however, is not whether an ALJ agrees with a particular modification to a 

citation or whether an ALJ believes the facts establish any particular level of negligence; it is 

whether the settlement package as a whole is fair, reasonable, appropriate, and in the public 

interest. The ALJ’s reliance on the Commission’s definition of low negligence is also error, 

because AmCoal does not instruct ALJs to apply those definitions and because those definitions 

do not govern parties’ settlement negotiations. Cf. Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 

1259, 1263–64 (D.C. Cir. 2016) (explaining that MSHA’s negligence definitions are not binding 

on the Commission).

The ALJ did not apply the AmCoal standard in four other ways. First, the ALJ’s repeated 

focus on the facts of the negligence and gravity suggests that she improperly assigned probative 

value to some of those facts without a hearing. Second, she refused to consider any facts other 

than the § 110(i) factors, Ord. 2 n.1, including nonmonetary factors. Third, she did not consider 
10

the future enforcement value of four S&S citations. Ord. 2 n.1, Dec. 6. And fourth, she 

misinterpreted AmCoal II as holding that only citations preserved as originally written have 

relevant future enforcement value. Dec. 6.

2. Under these circumstances, the ALJ had no authority to subpoena the inspector.

Parties must provide ALJs with facts in support of settlements. 29 C.F.R. § 2700.31(b)(1). 

ALJs may, under appropriate circumstances, conclude that additional facts are necessary to 

determine whether a settlement meets the AmCoal standard. AmCoal II, 40 FMSHRC at 989 & 

n.9. But they may not demand trial-type evidence in settlement proceedings. Facts in support of 

settlement can be both facts the parties have agreed on and facts about which “the parties have 

agreed to disagree.” Id. at 991. That is, facts sufficient to support a settlement are not the same as 

evidence sufficient to support a citation at a hearing. See id. (“In a final disposition after a 

hearing, a Judge must make findings on each section 110(i) factor in assessing a penalty, while a

Judge’s decision approving settlement need only ‘set forth the reasons for approval and . . . be 

supported by the record.’”) (quoting 29 C.F.R. § 2700.31(g) and citing Cantera Green, 22 

FMSHRC 616, 622–26 (May 2000)).

The ALJ erred by subpoenaing the inspector. A settlement motion was pending when the 

ALJ signed the subpoena and when it was served. The ALJ’s review of the settlement should 

have been restricted to determining whether the facts in that motion established that the 

settlement is fair, reasonable, appropriate, and in the public interest. The ALJ was not entitled to 

compel trial-type evidence in addition to reviewing the facts the parties had agreed upon and 

submitted. Reviewing that kind of evidence outside a hearing and without context could lead 

ALJs to draw inaccurate conclusions or assign improper probative weight to particular facts. See 
11

AmCoal II, 40 FMSHRC at 991. Because ALJs would have already seen evidence that the parties 

might not have introduced at any hearing, parties would also be less able to control how they 

present their cases if they did proceed to hearing. And an inspector’s testimony and documents 

are only some of the evidence the parties might present at a hearing. They might not, on their 

own, support the settlement; they might even prejudice the Secretary or the operator by denying 

them the opportunity to explain or contradict that evidence.

The Mine Act does authorize ALJs to issue subpoenas, but only “[i]n connection with 

hearings . . . .” 30 U.S.C. § 823(e). If there is no hearing, there is no subpoena power. See Lowe v. 

Veris Gold USA, Inc., 38 FMSHRC 25, 26 (Jan. 2016) (explaining that the Commission is a 

creature of statute and may act only within the scope of the authority given to it by the statute). 

The Commission should not allow ALJs to convene hearings just to give themselves that power: 

ALJs may not deny settlements based on supposedly-inadequate information and then convene

hearings to obtain that information. If they could, the limiting language of § 113(e) would be 

meaningless, and the important distinction between settlements and hearings would be erased.

In this case, the ALJ issued the subpoena not just in connection with a hearing, but also in 

connection with her ongoing review of the settlement. The subpoena, in effect, attempted to 

force the release of documents and testimony that are neither available during, nor relevant to, an 

ALJ’s review of settlements, during the ALJ’s review of this settlement.

3. The ALJ denied the parties their right to seek interlocutory review by the Commission.

Commission Rule 76 provides two ways for a party to obtain interlocutory review of an 

ALJ’s non-final ruling. Either the ALJ must certify the ruling for interlocutory review, or the ALJ 

must deny a party’s motion for certification and the party must file with the Commission a 
12

petition for interlocutory review within 30 days of that denial. 29 C.F.R. § 2700.76(a)(1). Parties 

must follow these procedures to obtain interlocutory review. See, e.g., Runyan Constr., Inc., 36 

FMSHRC 886, 887 (Apr. 2014). The Commission should require its ALJs to follow these 

procedures, too. Shamokin Filler Co., Inc., 34 FMSHRC 1897, 1910 (Aug. 2012) (while ALJs “are 

accorded broad discretion in their conduct of proceedings before them, such conduct must 

comply with the Commission’s procedural rules”). To comply with Rule 76(a)(1)(ii), ALJs must 

give parties the 30 days guaranteed by the rule to file a petition for interlocutory review with the 

Commission before resuming any proceedings that involve the issues for interlocutory review.

The ALJ erred in denying the parties the opportunity to seek interlocutory review by the 

Commission. She did not rule on the Secretary’s motion to certify the case for interlocutory 

review before conducting the hearing. See Tr. 22–23. The effect was to completely deny the 

Secretary the opportunity, guaranteed by Rule 76, to seek interlocutory review by the 

Commission. Cf. Madison Branch Mgmt., 16 FMSHRC 1934 (Sept. 1994) (granting motion for 

interlocutory review and canceling a hearing that was scheduled two days later).

4. The ALJ’s decision to vacate the citations is not supported by substantial evidence.

Even if the Commission concludes that the ALJ properly denied the settlement and 

convened the hearing, it should still direct review of this case because the ALJ’s decision to 

vacate the citations is not supported by substantial evidence. The ALJ erred by rejecting the 

parties’ stipulations and by reaching a decision that is internally inconsistent.

A stipulation is

an express waiver made . . . preparatory to trial by the party or his attorney 

conceding for the purposes of trial the truth of some alleged fact . . . the fact is 

thereafter to be taken for granted; so that the one party need offer no evidence to prove it 
13

and the other is not allowed to disprove it . . . . It is, in truth, a substitute for evidence, 

in that it does away with the need for evidence.

Vander Linden v. Hodges, 193 F.3d 268, 279–80 (4th Cir. 1999) (quoting 9 Wigmore, Evidence

§ 2588, at 821 (Chadburn 1981) (emphasis in Hodges)). Stipulations “have the effect of 

withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. 

Thus . . . unless allowed by the court to be withdrawn, [they are] conclusive in the case . . . .” 2 

McCormick On Evid. § 254 (7th ed.).

Stipulations are binding on the Commission, see, e.g., Sec’y o/b/o Truex v. Consolidation 

Coal Co., 8 FMSHRC 1293, 1297 (Sept. 1986), and parties may submit cases based solely on 

stipulations. Id.; see also, e.g., U.S. Steel Mining Co., 10 FMSHRC 146, 147 (Feb. 1988). ALJs may 

not reject or ignore stipulations (unless, of course, a party disputes their validity). The ALJ erred 

both by rejecting the parties’ stipulations as a whole, Dec. 9–10, and by finding that there were no 

violations when the parties stipulated that all four violations in fact occurred. Dec. 10–17.

The ALJ’s decision is also internally inconsistent. She concluded that the facts alleged in 

the citation were so egregious that they did not support any reductions in negligence or gravity, 

but simultaneously concluded that the facts did not even establish a violation. See generally Dec. 

This contradiction is not supported by substantial evidence. Cf. Elk Run Coal Co., Inc., 27 

FMSHRC 899, 907 (Dec. 2005) (remanding for ALJ to reconcile finding that violation was of 

high gravity but not S&S).
14

Conclusion

Any one of the four errors the ALJ made warrants review by the Commission. The 

Commission should grant the petition for review.

Respectfully submitted,

KATE S. O’SCANNLAIN

Solicitor of Labor

APRIL E. NELSON

Associate Solicitor

ALI A. BEYDOUN

Counsel, Appellate Litigation

s/ EMILY TOLER SCOTT

Attorney

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 July 23, 2019, a copy of the foregoing petition for discretionary review was served 

by email on:

Michael T. Cimino

Jackson Kelly, PLLC

500 Lee Street East, Suite 1600

Charleston, WV 25301

mcimino@jacksonkelly.com

s/ Emily Toler Scott
Addendum 1

ALJ’s April 17, 2019 Order Denying Amended Motion for Settlement
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges 

721 19th St., Suite 443 

Denver, CO 80202-2500 

Office: (303) 844-5266/Fax: (303) 844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

HOPEDALE MINING LLC, 

Respondent. 

April 17, 2019 

CNIL PENALTY PROCEEDING 

Docket No. LAKE 2019-0149 

A.C. No. 33-00968-481020 

Mine: Hopedale Mine 

ORDER DENYING AMENDED MOTION FOR SETTLEMENT 

Before: Judge Miller 

This case is before me 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 an amended 

motion to approve settlement. This case involves four citations detailing alleged violations of 

mandatory health standards with respect to Respondent's coal mine ventilation plan. In the 

Secretary's amended motion, the parties argue that they have set forth facts that sufficiently 

justify the significant modifications they have agreed to for each citation. 

On March 25, 2019, the Secretary filed his initial settlement motion. The Secretary 

represented that the parties agreed to significant reductions in gravity, negligence, and penalty 

with respect to each citation at issue, and set forth information purporting to support the terms of 

settlement. After being notified that the motion was not sufficient, the Secretary filed an 

amended settlement motion on April 5, 2019. The amended motion included the same terms 

proposed in his initial motion along with some additional information concerning each citation. 

The parties asserted further that the amended settlement motion included a description of the 

"issue[ s] on which the parties have agreed to disagree" and that the motion demonstrated "the 

proposed penalty reduction is fair, reasonable, appropriate under the facts, and protects the public 

interest." Am. Coal Co., 40 FMSHRC 983, 991 (Aug. 2018). The originally assessed amount 

for the citations at issue was $18,093.00 and the proposed settlement amount is $3,339.00. The 

parties have proposed to modify each citation as follows: 
Originally Settlement Citation No. Proposed Amount Modification 

Assessment 

Docket No. LAKE 2019-0149 

8055975 $1,031.00 $462.00 Modify negligence from moderate to low. 

8055976 $12,321.00 $1,666.00 Modify likelihood of injury or illness from 

highly likely to reasonably likely. Modify 

negligence from high to moderate. 

8055977 $3,710.00 $749.00 Modify likelihood of injury or illness from 

highly likely to reasonably likely. Modify 

negligence from moderate to low. 

8055978 $1,031.00 $462.00 Modify negligence from moderate to low. 

TOTAL $18,093.00 $3,339.00 

The case was set for hearing on April 24, 2019 and the parties were directed to submit a 

list of witnesses and exhibits. Both parties filed a prehearing response that indicated that no 

witnesses would be called and that the only exhibit offered would be a joint stipulation. 

Fallowing a conference call on April 16, 2019, the Secretary submitted a copy of the parties' 

Joint Stipulations. The Joint Stipulations contain much of the same information the parties had 

previously set forth in their initial and amended motions for settlement. The Joint Stipulations 

added some information regarding jurisdiction and addressed the ability to pay. Notably, the 

Joint Stipulations contain no mention of the operator's significant history of similar violations 

for failure to adhere to ventilation plan requirements. That two-year history, with highlights to 

denote the standard at issue here, was referenced in the citations and has been attached to this 

order as Exhibit A. 

The Commission has directed its judges to consider "whether the settlement of a 

proposed penalty is fair, reasonable, appropriate under the facts, and protects the public interest." 

Am. Coal Co., 38 FMSHRC 1972, 1976 (Aug. 2016). 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 11 0(i) and 11 0(k).1 The parties assert that they have submitted 

information supporting the proposed modifications to the gravity and negligence of each citation. 

However, even if everything the parties have set forth is true, the information contained in the· 

file does not support the proposed modifications. Notably, this operator has ·a history of similar 

violations for failure to adhere to ventilation plan requirements and the mine foreman was 

present when the citations were issued. In addition, the conditions present at the mine when the 

citations were issued suggest that the mining crew was at serious risk of exposure to respirable 

1. In reviewing this proposed settlement, I do not consider the Secretary's statements in 

paragraph 4, and particularly statements regarding prosecutorial impact. Instead, I rely on the 

Commission direction to address Sections ll0(i) and ll0(k) of the Act. Am. Coal Co., 38 

FMSHRC 1972, 1981-82 (Aug. 2016). 

2 
coal dust and silica. The parties assert that personal samples measured on the shuttle car 

operators near the time of the inspection show no violation of the dust standard. However, the 

continuous miner operator and the roof bolter do not have the same exposure as shuttle car 

operators. Therefore, these factors do not support the drastic modifications to negligence, 

gravity, and penalty that have been proposed in the amended settlement motion. 

The Secretary argues that the amended settlement motion is fair and in the public interest. 

I find that the settlement is not fair, reasonable, or appropriate under the facts, and it does not 

protect the public interest. The Secretary also states that he has met the requirements of 

American Coal by setting forth the facts upon which the parties have agreed to disagree. I find 

no merit to the Secretary's argument, as American Coal requires more than a list of facts to 

which the parties disagree. If that were the sole criteria for the approval of a settlement motion, 

it would be impossible for a Judge to question any proffered settlement. The "agree to disagree" 

is only a part of the Commission's discussion in American Coal, and it was included in a 

discussion related to including facts outside of the penalty criteria in considering a settlement 

motion. The Commission requires more of a settlement motion. 

Similarly, the parties' Joint Stipulations add little to the proposed settlement. The Joint 

Stipulations are simply another way of stating the same settlement terms that have been under 

review since the parties submitted their initial motion. With respect to the three citations that the 

parties seek to reduce to low negligence, there is hardly any information available to justify such 

modifications. I note that numerous publications have recently pointed to a resurgence of black 

lung among miners due to inhalation of coal mine· and silica dust. See, e.g., An Epidemic is 

Killing Thousands of Coal Miners. Regulators Could Have Stopped It, National Public Radio: 

All Things Considered (Dec. 18, 2018) (transcript available at https://www.npr.org/ 

templates/transcript/transcript.php?storyld=675253856).2 It is therefore difficult to see how any 

of the purported mitigating circumstances to which the parties have stipulated would justify such 

reductions to low negligence or promote the public interest. 

Accordingly, I have considered the representations and documentation submitted in 

support of the amended motion to approve settlement. I conclude that the proposed settlement is 

not appropriate under the criteria set forth in Section 11 O(i) of the Act. The amended motion to 

approve settlement is therefore DENIED. 

2. I note that I may take judicial notice of "the existence or truth of a fact or other extra-record 

information that is not the subject of testimony but is commonly known, or can safely be 

assumed, to be true." Union Oil Co., 11 FMSHRC 289,300 n.8 (Mar. 1989). 

3 
While some of the proposed stipulations may be accepted into the record, they do not 

change the nature of the settlement and I reject the effort of the parties to circumvent the 

requirements for filing an acceptable settlement agreement. Finally, the parties are ORDERED 

to appear at the hearing scheduled for April 24, 2019. The parties will be given one additional 

opportunity to explain why the settlement should be approved. If the settlement is rejected, the 

parties shall move forward to present witnesses and exhibits to support or refute the violations as 

issued. 

ffi~:i\~ 

~~tive Law Judge 

Distribution: (U.S. First Class Mail) 

Edward V. Hartman, U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn Street, 

Room 844, Chicago, IL 60604 

Michael T. Cimino, Jackson Kelly PLLC, 500 Lee Street East, Suite 1600, P.O. Box 553, 

Charleston, WV 25322 

Alan S. Vancuren, Hopedale Mining LLC, P.O. Box 415, Hopedale, OH 43976 

4 
4/1 7/2019 

- a • • Retrieval System as developed by P!..11{ 

Current Mine Information 

Mine ID: 3300968 

MSHA - Mine Violations 

Mine Citations, Orders, and 

Safeguards 

Operator: Hopedale Mining LLC 

l0/14/2004 

Operator History for Mine ID: 3300968 

Opr. Begin Date: 

Mine Name: HopedRle Mine Qpcrptor Name 

B~.!! End Date Date 

Current Controller: 10/ 14/2004 

Controller Sta rt Dale: 

Mine Status: 

Rhino Resource Partners LP 

I 0/5/2010 

Active 

I lopcdale Mining LLC 

llarrison Mining Corp 

Youghioghcny & Ohio Coal 

Company 

11 /24/ l 992 I 0/13/2004 

Unlmown 11 /23/1 992 

Status Date: 4/26/2005 

Mined Material: 

1'ype of Mine: 

Coal (Bituminous) 

Underground 

Harrison County, OH 

OH 

How d o I use this information? Click Here 

Location: 

State: 

PLEASE NOTE: The information provided by the Mine Data Retrieval System (MDRS) is based on 

data gathered from various MSHA systems. As there may be a lag time in data being entered into 

those systems, there will also be a lag·in the reflection of that data on the MDRS. 

Assessment data lb nol available prior lo 1/ 1/1995. 

Citations, Orders, and Safeguards 

The current operator f!9P.edale Mining LLC has been the operator since 10/1 4n004 

- Indicate, violations pending hearings, appeals, and/or other actions. 

• Indicates violations that have not yet been assessed. 

• These arc non-assessable. 

- Asses~mcnt Process Overview 

Note: Vacated Citations arc not included In any reports on the MDRS. 

Floal Sec:Uon Proposed Curnnl Cootrattor Cllatlon/Ordtr Dalt Dalt Citation/ S& Citation/Order Yiolalor Cue No. Order of Staodard Penalty Ptoally ID No. In ued Ttrmlnaled Order s SLlllll Date Act ($) ($) 

Hopedale 

Mining 9181736 8116/2018 I0J(k) 911112018 0 NIA Non-Assessable 

LLC 

Hopedale 

Mining 4867531 2/2812017 I0J(lc) 3n12011 0 NIA Non-Assessable 

LLC 

https://ar1web.msha.gov/drs/ASP/MineAction.asp 

EXHIBIT A 

AmOUDI 

Paid 

To Dalt 

{$) 

1/17 
4/17/2019 MSHA - Mine VlolatJons 

Hoptda1c 9090983 000441477 5/812017 7/30/2017 104{a) 5/812017 C N 1,218.00 Closed 1,218.00 1,218.00 

Mining 

LLC 

Hopedale 

Mining 9125991 0004S8445 12/512017 4/912018 104{a) 12/5/2017 C N 168.00 Closed 168.00 168.00 

LLC 

ffopcdaJi: 

Mining 9124661 000443752 6/1/2017 8/2712017 104(a) 6/8/2017 C N 312.00 Closed 312.00 312.00 

LLC 

Hopedale 

Mining 9130919 000481020 11/6tZ0l8 2/1112019 104(a} 11/19/2018 C N 132.()(] Closed 132.00 132.00 

LLC 

Hopedale 

~ 9181723 000468571 512912018 1/1512018 104(1) 61612018 C N 182.00 Closed 182.00 182.00 

LLC 

IHopcdm 

Mining 9127324 000454107 1000/2017 2/5/2018 104(a) 10/30/2017 C N ~@] 150.00 Closed 150.00 150.00 

LLC 

Hopedale 

M"miug 9126074 000458445 lll20/2017 41912018 104{a) 111221l017 C N Rl.lil<dl 118.00 Closed 118.00 118.00 

u.c 

Hopedale E.li!l!tol 

Mining 9084690 000438946 3/3112017 71212017 104(a) 6/1412017 C y 

(i: 

625.00 Closed 625.00 625.00 

LLC 

HopcdaJc 

Mimng 9181966 000470729 6/2612018 9/1212018 104(a) 6/26/2018 C N 1.!Lillttl 151.00 Closed 151.00 151.00 

LLC 

Hopedale 

Mining 9125456 000446268 6/13/2017 10/112017 104(a) 6/26/2017 C N 70212(a) 116.00 Closed 116.00 116.00 

I.LC 

Hopedale 

Mining 9123131 000434146 2/112017 4/30fl017 104(a) 2/112017 C N ~~l 116.00 Closed 116.00 116.00 

I.LC 

Hopedale 

~ 80SJl67 000474992 8/2712018 11/14/2018 104(a) 8/27/2018 C N ~] 395.00 Closed 395.00 395.00 

LLC 

Hopedale 

Mining 9124757 000450962 9/512017 12/3/2017 104(a) 9n12011 C N 72 630(1l] 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 9130713 000462305 2/2712018 5/26/2018 104(a) 2/27/2018 C y ~) 1,312.00 Closed 1,312.00 1,312.00 

I.LC 

Hopcdalc 

Mining 9126072 000458445 11/13/2017 419/2018 104(a) 11/13/2017 C N ~] JIS.00 Closed JIB.OD 118.00 

u.c 

Hopedale LUll!2: 

~ 9125349 000452778 10/16/2017 12/31/2017 104(a) 10/17/2017 C N 116.00 Closed 116.00 116.00 

l<ll) 

UC 

Hopedale Zll!.QQ: 

Mining 9124555 000448610 813/2017 11/14/2017 104(a) 8/10/2017 C N 116.00 Closed 116.00 116.00 ~~) 

UC 

https://ertweb.msha.gov/drs/ASP/MlneActfon.asp 2/17 

EXHIBIT A 
4/17/2019 MSHA • Mine Violations 

Hopedale 9087330 000441477 4/27/2017 7/30/2017 104(a) S/1/2017 C N '1~ IIIVL1. 116.00 Closed 116.00 116.00 

Mining 

I.LC 

Hopedale 

Mining 9127776 000468571 6,'6/'2018 8/1512018 l04(0) 6/6/2018 C N 7§ 1100.] 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Milling 9127766 000466484 4123/2018 7/2112018 104(a) 5/112018 C N n 1100.1 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

lli.W.: Minmg 9183581 000477221 9/1912018 12/26/2018 J04(a) 912612018 C N 118.00 Closed 118.00 118.00 

LLC ll{,l 

Hopedale 

lU.!fil: 

Muting 9127910 000464527 3/13/2018 6123/2018 104(0) 3/1412018 C N 118.00 Closed 118.00 118.00 

u.c ~!!lm 

Hopedale 1U!.2.l:: 

Mining 9)82085 000481020 11127!2018 2/11/2019 104(a) 12/6/2018 C N 118.00 Closed 118.00 118.00 

I.LC 

fil!l 

Mining 

Hopcda1c 

9125041 000450962 8/28/2017 12/312017 104(a) 8128120l7 C N ~ 116.00 Closed 116.00 116.00 

LLC 

M@lGl 

Hopedale 

M'mmg 9127350 000460084 l/31!2018 412112018 104(a) 1/3112018 C N ~ 118.0Cl Closed 118.00 118.00 

UC 

J{g),(Jl 

MinmB 

Hopcdalc 

9124606 000443752 5/2212017 8/27!2017 104(a) S/22/2017 C N ~ 116.00 Closed 116.00 116.00 

I.LC ic,1 

Hopcclalc 

Mining 9124897 000448610 7/3112017 11/14/2017 104(a) 7/31/2017 C N ~ JJ6.00 Closed 116.00 116.00 

UC Jt,l 

Hopedale 

Mining 9127764 000466484 4/1612018 712112018 104(a) 4/18/2018 C y 2UUU 502.00 Closed 502.00 502.00 

I.LC 

HopcdaJc 

Mining 912,m 000468571 sn12018 8/1512018 104(a) S/812018 C N 1.Ulml 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9123058 000436253 3/112017 S/2812017 104(n) 3/112017 C N 75.1200.@ 126.00 Closed 126.00 126.00 

LLC 

Hopedale 

Mining 9127340 000460084 l/1712018 4121/2018 l04(a) 1/17/2018 C N .llJ..m 118.00 Closed 118.00 118.00 

LLC 

Hopeda1c 

Mimng 9125350 000452778 10/1612017 12/3112017 104(a) 10/17/2017 C N ~ 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 9127635 000460084 112412018 4/2112018 104(a) l/30!2018 C N ~ 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9127769 000468571 5n/2018 8/15/2018 l04(a) 5/8/2018 C N ~ )18,00 Closed 118.00 118.00 

LLC 

https://arfweb.msha.gov/drs/ASP/MlneActlon.asp 3/17 

EXHIBIT A 
4/17/2019 MSHA - Mine Violations 

Hopcd&le 9127636 000460084 1/29/2018 4/21/2018 104(a) 1/30/2018 C N ~ 118.00 Closed ]18.00 118.00 

Mining 

I.LC 

Hopodalt 

Mining 9127903 000462305 2/28/2018 5/2612018 104(a) 2/28/2018 C N ~ 118.00 Closed JIU)() 118.00 

u.c 

!Hopedale 

Mining 9123133 000434146 2/2/2017 4130/2017 l04(a) 2/2/2017 C N ~ 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

M'miq 9124604 S/9/2017 3l4{b) S/Jl/2017 s NIA Non-Assessable 

llC 

Hopodalc 

Mining 9127630 000460084 1118/2018 4121/2018 104(a) 1/18/2018 C N ~ 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9123527 000438946 3/2112017 7/212017 104(a) 3/21/2017 C N 2W2J 116.00 Closed llfi.00 116.00 

LLC 

Hopedale 

Mining 9180697 000477221 9/1112018 12/26/2018 104(a) 9/IJ/2018 C N ~QJ 264.00 Closed 264.00 264.00 

LLC 

Hopedale 

Mining 9127501 000462305 316/2018 5/26/2018 104(a) 3/612018 C N ~. 118JJCl Closed 118.00 118.00 

u.c 

!Hopedale 

Mining 9125381 0004541(T/ 10/2.Sl2017 2/5/2018 104(a) I0/25l20l7 C N ll.11!001 420.00 Closed 420.00 420.00 

LLC 

Hopccfa!c 

Mining 9123057 000436253 3/1/2017 5/28/2017 l04(a) 3/1/2017 C y 1UWl 188.00 Closed 188.00 188.00 

I.LC 

Hopedale llJlil; 

Mining 9130717 000462305 2/28/2018 5/2612018 104(•) 2/28/2018 C y 502.00 Closed 502.00 502.00 

ZC!!l 

u.c 

Hopedale ill.lli: 

Mining 9130716 000462305 2/28/2018 5/2612018 104(a) 2/28/2018 C N 118.00 Closed 118.00 118.00 

Z(b).(1) 

u.c 

Hopedale 1..ti1U: 

Mining 9130715 000462305 2/28/2018 5/26/2018 104(a) 2/28/2018 C N 118.00 Closed 118.00 118.00 

ll,l 

u.c 

Hopedale 

Mining 9130714 000462305 2/28/2018 5/26/2018 104(a) 2/28/2018 C N 7'i 1714-1 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mfnina 8051496 000438946 4/5/2017 7/212017 104(a) 4/5/2017 C N 1ll1!§ 116.00 Closed 116.00 116.00 

I.LC 

HopedD}c 

Mining 9183748 000481020 11/29/2018 2/11/2019 104(11) 11/29/2018 C V 75.1722(~1 749.00 Closed 749.00 749.00 

I.LC 

- .. 

. 

Mining 9127348 000460084 1/31/2018 4/21/2018 104(a) l/31/2018 C y 75 1722((1) 749.00 Closed 749.00 149.00 

u.c 

hltpS'J/ertweb.msha.gov/drs/ASP/MlneActlon.asp 4/17 

EXHIBIT A 
4/17/2019 MSHA- Mins Violations 

Hopedale 9124553 000448610 7/25/2017 11/14/2017 104(a) 7125/2017 C y lUm.(11) 492.00 Closed 492.00 492.00 

Mining 

LLC 

Hopcdalc 

Mining 912mo 000468511 5n12018 8/15/2018 104(a) S/812018 C N 1UZ.lleo) 118.00 Closed JJ8.00 JJ8.00 

LLC 

Hopedale 

Mining 9124607 000443752 5/25/2017 8/27/2017 104(a) 5/2512017 C N ll..llWol 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Miniq 9125042 000450962 8/30/2017 12/3/2017 104(a) 8/30/2017 C y 75.1722(~) 734.00 Closed 734.00 734.00 

LLC 

HopcdaJc 

Milling 9124605 000443752 51221'2017 8127/2017 104(a) 51221'2017 C y ll.!1ll{9J 492.00 Closed 492.00 492.00 

LLC 

Hopedale 

Mining 9124898 000448610 7/31/2017 JJ/14/2017 104(a) 8/3/2017 C y ~Ill 577.00 Closed 577.00 m.oo 

LLC 

Hopedale 

Mining 9125044 000452778 9/21/2017 12/31/2017 104(a) 9/22/2017 C y ~!!l 259.00 Closed 259.00 259.00 

LLC 

Hopedale 

Mining 9127338 000458445 12/27/2017 419/2018 104(a) 12127/2017 C V IDZllio~ 544.00 Closed 544.00 544.00 

LLC 

Hopcda!c 

Mining 8051497 000438946 415/2017 7/2/2017 104(a) 4/SfJ.017 C N ll..1.ill1ol 116.00 Cosed 116.00 116.00 

LLC 

Hopcd,a!o 

Minlns 9123128 000434146 1/19/2017 4130/2017 104(a) J/19'2017 C N lli2lliel 116.00 Closed JJ6.00 116.00 

LLC 

Hopedale 

Mining 9127765 000466484 4123/2018 7/2112018 104(a) 5/1/2018 C N liJllllG) 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

M"ming 9123139 000436253 'J/2212017 S/2812017 104{a) 2/22/2017 C N llllliCal 116.00 Closed 116.00 116.00 

LLC 

Hopccfa1c 

Mining 9127633 000460084 1/18/2018 4/21/2018 104(a) 1/18/2018 C N 75.1731(9) 336.00 Closed 336.00 336.00 

LLC 

Hopedale 

Mining 9180237 000478987 10f22/2018 119/2019 104(a) 10/23/2018 C N llJl.lliol IJ8.00 Closed 118.00 118.00 

LLC 

Hopedale 

Minins 9124893 000448610 7/20/2017 JJ/14/2017 104(a) 7/lon.017 C N 1illl!.(9) 116.00 Closed 116.00 IJ6.00 

LLC 

Hopedale 

Mining 9127762 000466484 4/16/2018 7/21/2018 104(11) 4/1812018 C N liJlJ.l.fl!} 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9180698 0004m21 9/12/2018 12/26'2018 104(a) 9/12/2018 C y lll.1llitl 225.00 Closed 225.00 225.00 

LLC 

https://artweb.msha.gov/drs/ASP/MlneActlon.asp 5/17 

EXHIBIT A 
4/17/2019 MSHA - Mine VIOiations 

Hopedale 9125459 000446268 6/14/2017 10/1/2017 104(a) 6/1412017 C N lUU.U!!) 116.0ll Closed 116.00 116.00 

Mining 

LLC 

Hopedale 

Mining 9180696 000474992 9/5/2018 11/14/2018 l04(a) 9/612018 C N lUllli@l 118.00 Closed Jl8.00 118.00 

u.c 

Hopedale 

Mining 918374S 000481020 11/27/2018 2/1112019 104(0) 11/27/2018 C N 1Lllll~) 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9125353 000454107 10/25/2017 2/5/2018 104(a) IOl2S/20l7 C y llJlll(lJ) 492.00 Closed 492.00 492.00 

LLC 

Hopedale 

Mining 9127909 000464527 311212018 6/23/2018 104(a) 3/1212018 C N 1.Ufil(bl 151.00 Closed 151.00 ISJ.00 

LLC 

Hopedale 

Mining 9180686 000474992 817/2018 11/14/2018 104(a) 817/2018 C N ~) 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9124896 0004486]0 712712017 ll/]412017 l04(a) 7/27/2017 C N .zgw_(\?) ]]6.00 Closed 116.00 116.00 

LLC 

Hopoda!c 

Mining 9127757 000464527 4/5/2018 612312018 104(•) 4/5J20l8 C N llJ.ll.l.Ozl 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9124559 000448610 8/10/2017 11114/20]7 J04(a) 8/10/2017 C N llJlli.(p l ]16.00 Cosed 116.00 116.00 

LLC 

Hopcalc 

Mining 9180689 000474992 8/1512018 11/14/2018 104(a) 8/15/2018 C N 7S.173H\i} 118.00 Closed 118.00 118.00 

LLC 

Hopcdalc 

Mining 9125354 000454107 11/1/2017 2/5/2018 104(a) 11/112017 C N ~ 116.00 Closed 116.00 116.00 

LLC 

Hopcda!c 

Mining 9127327 000454107 10/31/2017 2/512018 J04{a) 10/31/2017 C N lllll!.~) 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 9123137 000436253 2/22/2017 S/28/2017 l04(a) 2/2212017 C N ll..!11!(\?) 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 8051499 000438946 4/11/2017 71212017 104(a) 4/11/2017 C N 1lllli.C1ll 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 9183744 000481020 11126/2018 2/1112019 104(a) 11/2612018 C N llJ.llil~) 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9127347 000460084 1/3112018 4121/2018 104(11) 1/3112018 C N llilli<ll l 128.00 Closed 128.00 128.00 

LLC 

HopcdaJc 

Mining 9127603 000458445 11/28/2017 419/2018 104(a) 11/28/2017 C y 1.Ulli.<P) 589.00 Closed 589.00 589.00 

LLC 

https://arfweb.msha.gov/drs/ASP/MlneActfon.asp 6/17 

EXHIBIT A 
4/17/2019 MSHA - Mine Violations 

Hopedale 9183388 000477221 9/2512018 12126/2018 104(a) 9/25/2018 C N~l 118.CXI Closed 118.00 n8.oo 

MiaiDg 

LLC 

Hopedale 

Mining 9127908 000464527 3/1212018 612312018 104{a) 3/12/2018 C N ~1 118.00 Closed JJ8.00 118.00 

LLC 

Hopedale 

Mimog 9127605 000458445 )2/512017 4/912018 104(a) 12/5/2017 C N ll.!ll!1b l 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9123528 000438946 312212017 7/212017 104{a) 312212017 C N 75 1731'1?) 116.00 Closed )16.00 116.00 

LLC 

Hopedale 

Mining 9125043 000450962 9/5/2017 12/312017 l04(a) 9/5fl0l1 C N ~) 116.00 Closed 116.00 JJ6.00 

LLC 

Hopedale 

Mming 9125040 000450962 812812017 12/3fl0l7 104(a) 8128120l7 C N 1Ulllibl 1)6.00 Closed 116.00 116.00 

LLC 

IHopcd&tc 

Mining 9127604 000458445 12/412017 4/912018 l04(a) 12/412017 C N :zgzJ!(ll} 118.00 Closed 118.00 118.00 

LLC 

Hopcdalc 

Mining 9125351 000454107 IO/l7fl0l7 2/512018 J04(a) 10/17/2017 C N llilll.(~1 116.00 Closed 116.00 116.00 

LLC 

!Hopedale 

Miaing 9180692 000474992 8127/2018 11/14/2018 104(11) 8127/2018 C N lUlli<bl 225.00 Closed 225.00 225.00 

LLC 

Hopedale 

Mining 9180238 000478987 10/22/2018 11912019 104(11) 10/22/2018 C N llJ.2.ll(ll) 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9125458 000446268 611412017 10/lfl0l7 104(a) 611412017 C N lUU.1.<l!l 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

MiniDa 9123522 000436253 3/712017 512812017 t04(a) 3/712017 C N ll..lli.l.(~I 116.00 Closed 116.00 116.00 

LLC 

Hopcdalo 

Mining 9123524 000438946 3/1312017 71212017 104{a) 311312017 C N 7.5.202(9) 116.00 Closccl 116.00 116.00 

LLC 

Hopcdalc 

MimnB 9180694 000474992 8/28/2018 11/1412018 104(11) 8129/2018 C N 1.U!Wel ISi.DO Closed lSl.00 151.00 

I.LC 

Hopedale 

Mining 9124894 000448610 7124/2017 11/14/2017 l04(a) 712412017 C N 1..Ull<ol 135.00 Closed 135.00 135.00 

LLC 

Hopedale 

Miniaa 9183746 000481020 11/27/2018 2/11/2019 104(•) Jlfl712018 C N 75.202(~) 118.00 Closed 118.00 118.00 

LLC 

Hapcdale 

Minina 9125359 000458445 II/IS/2017 4/912018 l04(a) ll/lSl20J7 C N 7~ 202(§) JIB.DO Closed 118.00 118.00 

LLC 

https://erlweb.mshe.gov/drs/ASP/MlneActlon.asp 7/17 

EXHIBIT A 
4/17/2019 MSHA - Mine Violations 

Hopedale 9123126 000434146 1/17/2017 4/30/2017 l04(a) 1/18/2017 C N 1s.202(al 116.00 Closed JJ6.00 116.00 

Mining 

LLC 

Hopedale 

Mining 9123124 000432290 1/1212017 4/2/2017 104{a) 1/12/2017 C N lil!Wul 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 9123138 000436253 2/22/2017 5/2812017 104(1) 2/22/2017 C N ~@l 116.00 Closed 1)6.00 116.00 

LLC 

Hopedale 

Mining 9125457 000446268 611412017 10/1/2017 104(a) 6114/2017 C y 75.202(~: 677.00 Closed 677.00 677.00 

I.LC 

Hopedale 

Mmfng 8044740 000441477 5/4l2017 7/30/2017 104(a) 5/412017 C y ~!!} 577.00 Closed 577.00 577.00 

LLC 

Hopedale 

MimDg 9123135 000434146 217/2017 4130/2017 104(a) 2/7/2017 C N .z.um.<oJ 116.00 Closed 116.00 116.00 

UC 

Hapedalc 

Minmg 9124668 00044Q68 6/21/2017 10/1/2017 104(a) 6121/2017 C N 75.202(@) 116.00 Closed 116.00 116.00 

LLC 

Hopedale ~,> 

M"uting 9125348 0004S2778 10/11/2017 12131/2017 104(a) 10/11/2017 C N 

.(!) 

116.00 Closed 116.00 116.00 

LLC 

Hopcdalc ~@l 

Mining 9180690 000474992 8/16/2018 11/14/2018 104(a) 8/20/2018 C N 118.00 Closed 118.00 118.00 

Ul 

LLC 

Hopedale ~@l 

MinmB 9180695 000474992 8/28/2018 11/14/2018 104(a) 8/29/2018 C N 118.00 Closed 118.00 ll8.00 

m 

LLC 

Hopedale 

MininS 9127502 000462305 3/612018 S/26/2018 104(a) 3n12018 C N 1.Ull(~l 118.00 Closed 118.00 118.00 

I.LC 

Hopedale 

MininB 9124662 000443752 61812017 8/27/2017 104(a) 619/2017 C N l.U.llib) 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 9180699 000477221 9/13/2018 12/26/2018 104{•) 9/18/2018 C N 75.3331b) 429.00 Closed 429.00 429.00 

LLC 

Hopcdalc 

Mining 9183741 000481020 11/5/2018 2/11/2019 104(a) ll/S/2018 C N 11lli{bl 118.00 Closed Jl8.00 118.00 

I.LC 

Hopedale 75 340(1)) 

Mining 9127638 00046230.S 2/5/2018 S/26/2018 104{a) 2/612018 C N 118.00 Closed 118.00 118.00 

mcil 

LLC 

Hopedale 1.U.il(i) 

Mining 9180687 000474992 8/812018 11/14/2018 104(a) 8/8/2018 C N 118.00 Closed 118.00 118.00 

m 

u.c 

Hopedale 75 342(@) 

Mining 9127.506 000464.527 3/21/2018 6123/2018 104(a) 3/2112018 C N 191.0ll Closed 191.00 191.00 

m 

LLC 

https://artweb.msha.gov/drs/ASP/MlneAction.asp 8117 

EXHIBIT A 
4/17/2019 MSHA - Mfne Violations 

Hopedale 9125252 000458445 )2/4/2017 419/2018 104(8) 12/4/2017 C N lUillt) 118.00 Closed 118.00 118.00 

!Mining Hl 

UC 

Hopodak: 

75.342(9) Mining 9123639 000454107 10/25/2017 2/S/2018 104(a) 10/25/2017 C N 160.00 Closed 160.00 160.00 

LLC 

(4) 

Hopedale 

Mimng 9127628 000460084 119/2018 4/21/2018 104(a) 1/9/2018 C N ~ D) 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9123638 000452778 10t'l3/2017 12/31/2017 104(a) 10/13/2017 C N ~ol 126.00 Closed 126.00 126.00 

LLC 

Hopedale 

~{!) Mining 8040597 000441477 4/25/2017 7/30/2017 104(8) 4/26/2017 C N 116.00 Cosed 116.00 116.00 

LLC ,i1 

Hopedale 

~(@) Mining 9)82086 000481020 11/27/2018 2/11/2019 104(a) 12/13/2018 C N 118.00 Closed 118.00 118.00 

u.c m 

Hopedale 

Minma 9125397 000462305 2/22/2018 5/26/2018 104(8) 2/22/2018 C N 75.350(!?} 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9127326 000454107 J0/31/2017 2/5/2018 104(a) 11/1/2017 C N lUf&<t!l 492.00 Closed 492.00 492.00 

u.c 

Hopedale 

Mining 9127803 00046857) 5/10/2018 8/1512018 104(•) 5/10/2018 C N ~) 336.00 Cosed 336.00 336.00 

u.c 

Hopedale 

1.U§:!l~l Mining 9127511 000466484 4/24/2018 7/21/2018 104(11) 4/2Sfl018 C N 953.00 Closed 953.00 953.00 

u.c UlXilil 

Hopedale llJ&t!l 

Min!Dg 9125385 000458445 Jl/20/2017 419/2018 104(a) 11/22/2017 C N 1,118.00 Closed l,Jl8.00 1,118.00 

u.c Ullhiil 

Hopedale 

Mining 9127631 000460084 1/18/2018 4/21/2018 104(a) 1/18/2018 C N z.u&n 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9127905 000462305 3/7/2018 Sl26/2018 104(a) 3nfl018 C N 75.360(g) 118.00 Closed 118.00 118.00 

u.c 

Hopcda!e 

Mining 9124608 000443752 6/6/2017 8/27/2017 104(a) 6/6/2017 C N ~g) 220.00 Closed 220.00 220.00 

u.c 

Hopcdak n.3621a) 

Minins 9124602 000441477 4/24/2017 7/30/2017 t04(a) 4/24/2017 C N 280.00 Closed 280.00 280.00 

LLC m 

Hopedale 7S.3f,2(a) 

Mining 9127774 000468571 51812018 8/15/2018 104(a) 5/8/2018 C N 1,118.00 Closed 1,118.00 1,118.00 

u.c Wiilil 

HopedAlc 

Mining 9125840 000446268 6114/2017 10/1/2017 104(a) 6114/2017 C y ll.ill.(~l 492.00 Closed 492.00 492.00 

LLC 

https://arlweb.msha.gov/drs/ASP/MlnaActlon.asp 9/17 

EXHIBIT A 
4/17/2019 MSHA - Mine Violations 

Hopedale 9127349 000460084 1/31/2018 4121/2018 104(a) 1131/2018 C N ~(g) 118.00 Cosed 118.00 118.00 

Mining m<i 

I.LC 

Hopedale 

Mining 8051498 000441477 4/10f2017 7/30f2017 104(a) 4/11/2017 C N ~) 116.00 Cosed 116.00 116.00 

LLC 

Hopedale 

Mining 9127634 000460084 1/18/2018 4/21/2018 104(8) 1/18/2018 C N :zuil(ll) 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9125544 000441477 5/1/2017 7/30/2017 104(a) 5/2/2017 C y 75.364(b) 420.00 Cosed 420.00 42.0.00 

LLC 

Hopedale 1..Uf!!{bl 

~ 9127637 000460084 1/30fl018 4/21/2018 l04(a) 2/5/2018 C N 

m 

118.00 Closed 118.00 118.00 

LLC 

Hopedale 75 36W,~ 

Mining 80<,0516 000446268 7/12/2017 10/1/2017 104(a) 7/27/2017 C N 116.00 Closed 116.00 116.00 

(il 

I.LC 

H~le ~) HearingCasc 

Mining 8055916 000481020 12/412018 104(11) 1214/2018 C y 12,321.()(1 12.321.00 0.00 

m Filed 

LLC 

- - -

·.- '1~ 1'7111ni 

MiDiDg 80Sll68 000414992 8128/2018 un4/2018 104{8) 8128120l8 C y 

{t 

1.312.00 Closed 1,,312.00 1,312.00 

LLC 

Hopcdalo 7S.1'7llla1 

)4mma 9127339 000460084 1/17/2018 4121/2018 104(1) 1/24/2018 C N 

ill 

33'.00 Cloacd 336.00 336.00 

LLC 

Hopcdalc .lUZ!l(D) 

Minmg 9l24Q)3 000441477 519/2017 7/30/2017 J04(a) 5/9/2017 C N 116.00 Clorcd J16.00 1115.00 

m 

I.LC 

Hopcda1c :zuzm11: 

MfmDg 9125358 000458445 llnl/2017 4/912018 l04(a) lJnJ/2017 C y 363.00 Closed 363.00 363.00 

(l] 

LLC 

Hopedale ~!) He.iring Case 

Mining 8055978 000481020 12/412018 I04(a) 1214/20111 C y 1,031.00 1,03100 000 

m FileJ 

1.1.C 

Hopedale lUlQ(@: HearingCD.Ae 

Mining 8055975 000481020 12/412018 104(a) 12/4/2018 C y 1,oJl.00 1.03100 000 

m Filed 

LLC 

Hopodalc lli.!2:(@! 

Mimng 9123326 000460084 l/11/2018 4121/2018 104(a) I/Jl/2018 C N 

.(!; 

128.00 Cosed 128.00 128.00 

I.LC 

Hopedale lUlfil!) 

Mimng 9125253 000458445 12/18/2017 419/2018 104(a) 12/18/2017 C N 118.00 Cosed 118.00 IJ8.00 

HJ 

LLC 

Hopedale lUlQ.(g) 

Mining 9124663 000446268 6/13/2017 10/1/2017 104(a) 6/13/2017 C y 2,077.00 Closed 2,077.00 2,077.00 

.(!) 

LLC 

Hopedale lllill(@) 

Mining 9124601 000441477 4124/2017 7/30/2017 l04(a) 4/24/2017 C N 280.00 Closed 280.00 280.00 

(!) 

LLC 

https://ar1web.msha.gOY/drs/ASP/MineActlon.asp 10/17 

EXHIBIT A 
4/17/2019 MSHA - Mine Vlotations 

Hopedale B0S.S977 000481020 12/4/2018 104(a) 12/412018 C y .zu:m<!!l 3,710.00 HCllring Case 3,7IO.OO 0.00 

Mining (!] Filed 

LLC 

Hopcd&1c .zu:w,. Mimna 9127325 000464527 10/31/2017 6/23/2018 104(a) 10/31/2017 C N 589.00 Closed 589.00 589.00 

HJ 

LLC 

Hapcda!c lU.lQi!!l 

Mining 9127639 000462305 2/6/2018 5/26/2018 104(a) 2/6/2018 C N 

HJ 

118.00 Closed 118.00 1J8.00 

UC 

Hopedale 21.mdl 

Mining 9127777 000470729 6112/2018 9/12/2018 104(a) 6112/2018 C N 151.00 Closed 151.00 151.00 

m 

LLC 

H~ 1.UBQCdl 

Mining 9125391 000458445 12/7/2017 419/2018 104(a) 12/7/2017 C N 118.00 Closed 118.00 118.00 

(1} 

LLC 

Hopedale 75.38~d: 

Mining 9180685 000472691 8/2/2018 10/10/2018 l04(a) 8/2/2018 C N 589.00 Closed 589.00 589.00 mff 

UC 

Hopedale 1UB2<dl 

Mming 9124660 000441477 5/10/2017 7/30/2017 l04(a) 5/10/2017 C N 305.00 Closed 305.00 305.00 

m<~l 

UC 

Hopcda!c 1U..!!Q(!I} 

Mining 9125347 000452778 10/10/2017 12131/2017 104(a) 10/10/2017 C N 116.00 Closed 116.00 116.00 

mh:il 

UC 

Hopedale 

Mining 9125352 000454107 10/25/2017 2/5/2018 104(a) 1012512017 C N ~ 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 9180239 000478987 1Cl23/20l8 1/9/2019 104(a) 10/24/2018 C N ~ 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9127771 000468571 5n12018 8/15/2018 104(a) 51812018 C N ~ 1)8.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9127913 000464527 3/20/2018 6/23/2018 104(a) 3/22/2018 C N ltirul IJ8.00 Closed 1J8.00 118.00 

LLC 

Hopedale 

Mining 7131702 000441477 4/1912017 7130/2017 104(a) 4/19/2017 C N ~ 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 9127904 000462305 3/5/2018 5/26/2018 104(a) 3/5/2018 C y ~ 395.00 Closed 395.00 395.00 

LLC 

Hopedale 

Mining 9127632 000460084 1/18/2018 4/21/2018 l04{a) Jf22/2018 C N ~ 177.00 Closed 177.00 177.00 

LLC 

Hopedale 

Mining 9127606 000458445 12/S/2017 419/2018 104(a) 12/S/2017 C y lliQQ 880.00 Closed 880.00 880.00 

LLC 

Hopedale 

Mining 9183747 000481020 11129/2018 2/11/2019 104(a) 11/29/2018 C N ~ 208.00 Closed 208.00 20&.00 

LLC 

https://ar1web.msha.gov/drs/ASP/MlneActlon.esp 11/17 

EXHIBIT A 
4/17/2019 MSHA - Mine Violations 

Hopcdalc 9127902 000462305 2/28/2018 5/26/2018 l04(a) 3n/20l8 C N ll.!QQ 191.00 Closed 191.00 191.00 

Minitlg 

LLC 

HopcdAlc 

Mining 9125355 000458445 11/6/2017 419/2018 104(a) 1116/2017 C N ~ 177.00 Cosed 177.00 177.00 

LLC 

Hopedale 

MiDinB 9180693 000474992 8/28/2018 11/1412018 104(a) 8/2812018 C N ~ Jl8.00 Closed JJ8.00 118.00 

LLC 

Hopedale 

Mining 9127759 000466484 41912018 7/2112018 104(a) 4/10/2018 C N ~ 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9123132 000434146 2/1/2017 4/30/2017 104(a) 2/1/2017 C N ~ 160.00 Cosed 160.00 160.00 

LLC 

Hopedale 

M'ming 9127577 000478987 10/23/2018 11912019 J04(a) 10/24/2018 C N ~ 118.00 Closed 118.00 118.00 

LLC 

HopcdaJc 

Mining 9127912 000464527 3/19/2018 6/23/2018 104(a) 3/21/2018 C N ~ 177.00 Closed 177.00 177.00 

LLC 

Hopcdalc 

Mining 8040600 000441477 4/25/2017 7/30/2017 104(a) 4/lS/2017 C N ~ 135.00 Closed 135.00 135.00 

LLC 

Hopcdalc 

Mining 91279ll 000464527 3/19/2018 6/23/2018 104(11) 3/21/2018 C N :w29 177.00 Closed 177.00 177.00 

LLC 

Hopedale 

Mining 9123134 000434146 2/7/2017 4/30/2017 104(11) 2/7/2017 C N lli.ill) 160.00 Closed 160.00 160.00 

LLC 

Hopedale 

Mining 9127802 000468571 5/10/2018 8/15/2018 104(a) 5110/2018 C N 1M29 589.00 Closed 589.00 589.00 

LLC 

Hopedale 

Mining 9127758 000464527 4/5/2018 6123/2018 104(a) 419/2018 C N ~ 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9124560 000448610 8/14/2017 11/14/2017 104(a) 8/14/2017 C N ~ 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 9123127 000434146 1/18/2017 4/30/2017 l04(a) 1/18/2017 C N ~ 204.00 Closed 204.00 20..00 

LLC 

Hopedale 

Mining 912m3 000468571 518/2018 8/15/2018 104(8) 519/2018 C N ~ 1,956.00 Closed 1,956.00 1,956.00 

LLC 

Hopedale 

Mining 9180684 000472691 7126/2018 10/10/2018 104(a) 812/2018 C N 75.400 118.00 Closed 1J8.00 118.00 

LLC 

Hopedale 

Mining 9123523 000436253 ln/2017 5/28/2017 l04(a) 3n/20l7 C N ~ 116.00 Closed 116.00 116.00 

LLC 

https://ar1web.msha.gov/drs/ASP/MlneActlon.asp 12/17 

EXHIBIT A 
4/17/2019 MSHA - Mine Violations 

Hopedale 9180236 000478987 10/9/2018 1/9/2019 104(a) 10/9/2018 C N ~ 191.00 Closed 191.00 191.00 

Minfng 

I.LC 

Hopc:da!o 

Mining 9124665 000446268 6113/20J7 10/1/2017 104(a) 6113/20)7 C N ~ 116.00 Closed l16.00 116.00 

LLC 

Hopedale 

Miaiag 9124895 000448610 7/24/2017 ll/14/2017 104(8) 7/26/2017 C N ~ 204.00 Closed 204.00 204.00 

LLC 

Hopeda!c 

Minfna 9127602 000458445 JJ/28/2017 419/2018 104(a) 11/28/2017 C y ~ 429.00 Closed 429.00 429.00 

UC 

Hopcda!c 

Mining 9123521 000436253 3/112017 5/28/2017 104(a) 3/112017 C N ~ 116.00 Closed 116.00 116.00 

UC 

Hopedale 

Mining 9130712 000462305 2127/2018 5/26/2018 l04(a) 3n12018 C N 1..1.!2il 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9123204 000434146 1/23/2017 4/30/2017 104(a) 1/2312017 C N ~ 116.00 Closed 116.00 116.00 

LLC 

Hopcdah: 

Mining 9183742 000481020 11119/2018 2/11/2019 l04(a) 11/19/2018 C N ll&\l 208.00 Closed 208.00 208.00 

LLC 

Hopedale 

Mining 9183740 000478987 1M9/2018 1/9/2019 104{a) 10/29/2018 C N ll.!99 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9124567 000452778 9/20/2017 12/31/2017 104{a) 9/2012017 C N ~ 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 9124892 000448610 7/18/2017 11/14/2017 l04{a) 7/18/2017 C N ~ 188.00 Closed 188.00 188.00 

LLC 

Hopedale 

Mining 9123130 000434146 1/24/2017 4/30/2017 104{a) 1/2412017 C N ~ 116.00 Closed 116.00 116.00 

u.c 

Hopedale 

Mining 9127505 000464527 3/14/2018 612312018 104{a) 3/14/2018 C N 75.400 191.00 Closed 191.00 191.00 

LLC 

Hopcmlc 

Mining 9124551 000448610 7/20/2017 ll/14/2017 104(11) 7/20/2017 C N ~ 188.00 Closed 188.00 188.00 

LLC 

Hopedale 

Mining 9127608 000458445 12/18/2017 4/9/2018 l04(a) 12/18/2017 C N ~ 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9180209 000478987 10/24/2018 1/9/2019 104(a) 10/24/2018 C N 75.400 118.00 Closed 118.00 118.00 

UC 

Hopcda)c 

Mining 912n63 000466484 4/16/2018 7/21/2018 104{a) 4/18/2018 C N 2.MQQ 191.00 Closed 191.00 191.00 

LLC 

https://artweb.msha.gov/drs/ASP/MlneActlon.esp 13/17 

EXHIBIT A 
4/17/2019 MSHA • Mine Violations 

Hopedale 9180721 000474992 8123/2018 11/14/2018 104(a) 8123/2018 C N ~ 118.00 Closed 118.00 118.00 

Mining 

LLC 

Hopedale 

Mining 9127906 000462305 3/7/2018 S/26/2018 104(1) 3/712018 C N ~ 177.00 Closed 177.00 177.00 

LLC 

Hopedale 

Mining 9124666 000446268 6/1312017 10/1/2017 104{B) 6.119/2017 C N ~ 116.00 Closed JJ6.00 116.00 

LLC 

Hopedale 

Minlng 8051169 000474992 8/28/2018 11/14/2018 104(a) 8/28/2018 C N ~ 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9127756 000464527 4/5/2018 6123/2018 104{B) 4/9/2018 C N ~ 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Minina 9183580 000477221 9/19!10l8 12/26/2018 104{8) 9/26/2018 C N :rum 953.00 Closed 953.00 953.00 

LLC 

Hopedale 

MiDfna 9123136 000436253 2/16/2017 S/2812017 104(a) 2/22/2017 C N 75.403 160.00 Closed 160.00 160.00 

LLC 

Hapcdalc 

Mining 9125380 000454107 10/25/2017 2/5/2018 104(1) 10/25/2017 C N ~ 305.00 Closed 305.00 305.00 

u.c 

Hopedale 

Minfna 9125387 000458445 11127/2017 4/912018 104(a) 11/30/2017 C N .ru!!J 225.00 Closed 225.00 22S.00 

LLC 

Hopedale 

Mining 9125384 000458445 llll0/2017 4/9/2018 104(a) 11/20/2017 C N ~ 1.666.00 Closed 1,666.00 1.666.00 

LLC 

Hopedale 

Mimng 9123525 000438946 3/1612017 7/2/2017 104(8) 3/20/2017 C N ~ 188.00 Closed 188.00 188.00 

LLC 

Hopcdalc 

Mining 9125388 000458445 11/2712017 4/9/2018 104{a) 11/30!2017 C N ~ 225.00 Closed 225.00 225.00 

LLC 

Hapedale 

Mining 9125392 000458445 12113/2017 4/9/2018 104{1) 12114/2017 C N ~ 225.00 Closed 225.00 w.oo 

tu.c 

Hopedale 

Mining 9123180 000429254 12/14/2016 3/5/2017 104(a) 12/23/2016 C N ll&2J 114.00 Closed 114.00 114.00 

u.c 

Hopedale 

Mining 9183582 000477221 10/S/2018 12/26/2018 104{a) 1019/2018 C N ~ 191.0<I Closed 191.00 191.00 

LLC 

Hopedale 

Mining 9088814 000432290 12/20/2016 4/212017 104(a) 12/27/2016 C N lldQJ 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 9125399 000462305 3/5/2018 S/2612018 104(1) 3/612018 C N ~ 191.00 Closed 191.00 191.00 

I.LC 

https://ertweb.msha.gov/drs/ASP/MlneActlon.asp 14/17 

EXHIBIT A 
4/17/2019 MSHA • Mine Vlcfatfons 

Hopedale 9123182 000432290 12/21/2016 4/2/2017 104(8) 12/22/2016 C N ~ 453.00 Closed 453.00 453.00 

Mining 

LLC 

Hopedale 

~ 9123181 000429254 12/)4/2016 3/5120)7 l04(a) 12/23/2016 C N ~ ]14.00 Closed 114.00 114.00 

LLC 

Hopedale 

MiniDB 9088812 000429254 12/13/2016 3/S/2017 104(8) 12/14/2016 C N ~ 114.00 Closed 114.00 114.00 

LLC 

HopcdaJc 

Mimag 9123183 000432290 12/21/20)6 4/2/2017 104(a) 12/22/2016 C N ~ 420.00 Closed 420.00 420.00 

u.c 

Hopedale 

Minmg 9123526 000438946 3/16/2017 7/2/2017 104(a) 3/20/2017 C N ~ 188.00 Closed 188.00 188.00 

LLC 

Hopcdab, 

Minill3 9127500 000462305 3/S/2018 5/26/2018 104(a) 3/6/2018 C N ~ 191.00 Closed 191.00 191.00 

LLC 

HopcdaJc 

Mining 9127510 000466484 4/24/2018 7/21/2018 104(a) 4124/2018 C N ~ 1,.539.00 Closed 1,539.00 1,539.00 

LLC 

Hopcdzt!c 

Mining 9125254 000458445 12/18/2017 419/2018 104(8) 12/18/2017 C N ll.lli 118.0ll Closed IJ8.00 118.00 

LLC 

Hopcdalc 

Mining 9127804 000468571 5/10/2018 8/15/2018 104(a) 5/10/2018 C N ~ 118.00 Closccl 118.00 118.00 

LLC 

Hopedale 

Mining 9127653 000462305 2/15/2018 5/26/2018 104(a) 2/15/2018 C N 75.503 118.00 Closed 118.00 118.00 

LLC 

HopcdaJc: 

Milling 9127901 000462305 2/6/2018 S/26/2018 104(8) 2/6/2018 C y ~ 225.00 Closed 225.00 225.00 

I.LC 

Hopedale 

Minfns 9124568 0004S2ns 9/21/2017 12/31/2017 104(8) 9/22/2017 C N ~ 116.00 Closed 116.00 116.00 

LLC 

Hopedale 

Mining 9123325 000460084 1/10/2018 4/21/2018 104(a) 1/10/2018 C N .u...w 118.00 Closed 118.00 118.00 

LLC 

Hapedale 

Mining 9181737 000474992 8/16/2018 11/14/2018 104(8) 8/16/2018 C y ~ 953.00 Closed 953.00 953.00 

LLC 

Hopedale 

Mining 9127915 000464527 3/21/2018 6/23/2018 104(8) 3/22/2018 C y ~ 225.00 Closed 225.00 225.00 

LLC 

Hopedale 

Mining 9125398 00046230S 2/28/2018 S/26/2018 104(a) 3/1/2018 C N ~ 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9090992 000458445 12/5/2017 419/2018 104(11) 1216/2017 C N ~ 118.00 Closed 118.00 118.00 

LLC 

https://arlweb.msha.gov/drs/ASP/MlneActlon.asp 15/17 

EXHIBIT A 
4117/2019 MSHA • Mine Violations 

Hopedale 9127601 000458445 11/27/2017 41912018 104(u) 11128/2017 C N ~ 118.00 Closed 118.00 118.00 

Mining 

LLC 

HopedDlc 

Mining 9181739 000474992 8/30/2018 ll/1412018 104(a) 8/30/2018 C N ,lljQJ 138.00 Closed 138.00 138.00 

LLC 

Hopedale 

Mimng 9127900 000462305 2/612018 5/2612018 104(a) 2/612018 C y ~ 243.00 Cosed 243.00 243.00 

LLC 

Hopedale 

Mining 9181724 000474992 9/512018 11/1412018 104(a) 9/5/2018 C y lll!.! 953.00 Closed 953.00 9.53.00 

LLC 

Hopedale 

Mining 9127914 000464527 3121/2018 612312018 104(a) 3/2212018 C N ll..fil 118.00 Closed 118.00 118.00 

I.LC 

Hopedale 

Mining 9183384 000474992 9/6/2018 11/14/2018 104(a) 9/612018 C N :z.uu 118.00 °""" 118.00 118.00 

I.LC 

Hopedale 

Mining 9124899 000448610 8/1112017 11/1412017 104(a) 8/11/2017 C y ll:lli 1.633.00 Closed 1.633.00 1.633.00 

LLC 

Hopedale 

Mining 9127768 000466484 5/212018 7/2112018 104(a) 5/212018 C N 11.ill 118.0C Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9123125 000432290 1/12/2017 4/212017 l04(a) 1/1212017 C N 1ifil 330.00 Closed 330.00 330.00 

LLC 

Hopcdislc 

Mining 9183749 000481020 11/29/2018 2/1112019 104(a) 11/29/2018 C y ll.lli 4,355.00 Closed 4,355.00 4,355.00 

I.LC 

Hopedale 

Mining 9127654 000462305 2/1512018 S/2612018 l04(a) 2/15/2018 C y 1Ul1 880.00 Closed 880.00 880.00 

LLC 

Hopedale 

Mining 9124562 000450%2 8/30/2017 12/3/2017 l04(a) 8/30/2017 C y ~ 220.00 Cosed 220.00 220.00 

LLC 

Hopedale 

Mining 9127815 000470729 6118/2018 9/12/2018 l04(a) 6118/2018 C y ~ 749.00 Closed 749.00 749.00 

LLC 

Hopedale 

Mining 9180722 000474992 8/23/2018 11/14/2018 104(a) 8/2312018 C y 1iill 953.00 Closed 953.00 953.00 

LLC 

Hopedale 

Mining 9183743 000481020 11/19/2018 2/1112019 104(a) 11/1912018 C y lifil 1.956.00 Closed 1_956.00 1.956.00 

LLC 

Hopedale 

Mining 9123520 000436253 2/27fl017 S/2812017 l04(a) 212712017 C y 75.517 188.00 Closed 188.00 188.00 

LLC 

Hopedale 

Minina 9127767 000466484 51212018 7/21/2018 104(a) 512/2018 C N ~ 118.00 Closed Jl8.00 118.00 

LLC 

https-J/artweb.msha.gOY/drs/ASP/MlneActlon.asp 16117 

EXHIBIT A 
4/1712019 MSHA • Mine Violations 

Hopedale 9127607 000458445 12/1412017 4/9/2018 104(a) 12/19/2017 C N 1.Ull: 118.0C Closed 118.00 118.00 

Mining 1C~llil 

LLC 

Hopedale 

Mining 9125992 000458445 12/512017 4/912018 104(a) 12/5/2017 C N ~ 118.00 Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9127775 000468571 S/912018 8/1512018 J04(a) 5/912018 C N ~) 118.0C Closed 118.00 118.00 

LLC 

Hopedale 

Mining 9127629 000460084 1/17/2018 4/2112018 104(a) J/17/2018 C N ~ 118.00 Closed 118.00 118.00 

LLC 

Hopcda!c 

Mining 9127600 000458445 11/20/2017 4/912018 104(a) 11120/2017 C N ll.W 118.00 Closed 118.00 118.00 

LLC 

,.._ .. -. Mining 9125356 000458445 ll/612017 4/9/2018 l04(a) 11/612017 C N 1UQ1 151.00 Closed 151.00 151.00 

LLC 

iHopodale 

!Mining 9180683 000472691 7/1912018 10/10/2018 104(a) 7/20fl018 C N 1.U21 151.00 Closed 151.00 151.00 

[.LC 

Hopedale 

Mining 7128686 000441477 S/412017 7130/2017 104(a) S/412017 C N ~ 126.00 Closed 126.00 126.00 

LLC 

Hopedale 

Mining 9180691 000474992 8/2112018 11/14/2018 104(a) 8121/2018 C N ~ 191.00 Closed 191.00 191.00 

LLC 

Hopedale 

Mining 9127760 000466484 4/10/2018 7/21/2018 104(•) 4/10/2018 C N 75.904 118.0C Closed 118.00 118.00 

LLC 

Hopedale 

Mining 7120850 000441477 4/2412017 7/30/2017 104(a) 4/24/2017 C N 11.J.ll!l 116.0(l Closed 116.00 116.00 

LLC 

Hopcda!c 

Mining 7140991 000441477 4124/2017 7/30/2017 104(a) 4/2712017 C N 1..Zl!Wrl 116.00 Closed 116.00 116.00 

LLC 

@ Return to DRS Home Pagg 

https://ariweb.msha.gov/drs/ASP/MlneActlon.asp 17/17 

EXHIBIT A 
Appeal Ex. A

U.S. Department of Labor Mine Safety and Health Administration 

604 Cheat Road 

Morgantown, West Virginia 26508 

March 25, 2019 

The Honorable Margaret A. Miller 

Acting Chief Administrative Law Judge 

Federal Mine Safety and Health 

Review Commission 

721 19th Street, Suite 443 

Denver, CO 80202-2536 

Re: SECRETARY OF LABOR (MSHA) v. HOPEDALE MINING LLC 

Docket No.: LAKE 2019-0149 

Assessment Control No.: 481020 

Mine: Hopedale Mine 

Mine ID: 33-00968 

Dear Judge Miller: 

Attached for filing is the Secretary's Motion to Approve Settlement in the above-referenced case. 

The Operator has agreed to pay Three Thousand Three Hundred and Thirty-Nine Dollars ($3,339.00) 

of the Eighteen Thousand and Ninety-Three Dollar ($18,093.00) proposed penalty. Representative 

for the Respondent, Alan S. Vancuren has reviewed this Motion and has consented to the granting of 

the Motion and entry of the proposed Order approving settlement. 

Thank you for your attention to this matter. 

Sincerely, 

~~] Conference and Litigation Representative 

Enclosures 

cc: Alan S. Vancuren, Safety Director 

Office of Assessments 

Exhibit D 
ACTING CHIEF JUDGE MILLER 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges 

721 19th Street, Suite 443 

Denver, CO 80202-2536 

Office: (303) 844-1616/Fax: (303) 844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner, 

v. 

HOPEDALE MINING LLC, 

Respondent. 

CIVIL PENAL TY PROCEEDING 

Docket No. LAKE 2019-0149 

A.C. No. 33-00968-481020 

Mine: Hopedale Mine 

MOTION FOR DECISION AND ORDER APPROVING SETTLEMENT 

Pursuant to Section 1 lO(k) of the Federal Mine Safety and Health Act of 1977 ("Mine 

Act") and Commission Procedural Rule 31, the Secretary of Labor moves the administrative law 

judge to approve the settlement reached by the parties and to order Respondent to pay civil 

penalties. In support of this motion, the Secretary states: 

1. The Mine Safety and Health Administration ("MSHA") proposed civil penalties for the 

citations at issue in accordance with the statutory penalty criteria in Section 11 O(i) of the Mine 

Act, 30 U.S.C. § 820(i), and MSHA's civil penalty regulations at 30 C.F.R. Part 100. 

2. Representatives for the Secretary and Respondent have discussed the alleged violations 

and MSHA's proposed penalties, and seek to settle the contested citations and penalties in the 

above-captioned docket as follows: 

1 
MSHA's 

Citation/ Proposed Settlement 

Order Penaltv Amount Other modifications to citation/order 

8055975 $1,031.00 $462.00 Modify Negligence from "Moderate" to "Low" 

8055976 $12,321.00 $1,666.00 Modify Gravity: "Highly Likely" to "Reasonably 

Likely" and Negligence from "High" to "Moderate" 

8055977 · $3,710.00 $749.00 Modify Gravity: "Highly Likely" to "Reasonably 

Likely" and Negligence from "Moderate" to "Low" 

8055978 $1,031.00 $462.00 Modify Negligence from "Moderate" to "Low" 

Total $18,093.00 $3,339.00 

3. In reaching this settlement, the Secretary has evaluated the value of the compromise, the 

likelihood of obtaining a better settlement, and the prospects of coming out better or worse after a 

trial. In deciding that such a compromise is appropriate, the Secretary has not given weight to the 

costs of going to trial as compared to the possible monetary results that would flow from 

securing a higher penalty total. He has, however, considered the fact that he is maximizing his 

prosecutorial impact in settling this case on appropriate terms and in litigating other cases in 

which settlement is not appropriate. The Secretary believes that maximizing his prosecutorial 

impact in such a manner serves a valid enforcement purpose. Even if the Secretary were to 

· substantially prevail at trial, and to obtain a monetary judgment similar to or even exceeding the 

amount of the settlement, it would not necessarily be a better outcome from the enforcement 

perspective than the settlement, in which all alleged violations are resolved and violations that 

are accepted can be used as a basis for future enforcement actions. A resolution of this matter in 

which all violations are resolved is of significant value to the Secretary and advances the 

purposes of the Act. 

4. The representatives of the Secretary and Respondent have discussed the alleged 

violation(s) and the statutory criteria under Section 110 of the Federal Mine Safety Act of 1977, 

30 U.S.C. §§ 801 et seq. in reaching this settlement. 

2 
5. 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 and the entry of the proposed Order Approving 

Settlement. 

6. To assist the Commission in evaluating the appropriateness of the settlement penalties 

under Section 11 0(i), the Secretary presents the following information in support of the penalties 

agreed to by the parties: 

a. 104(a) Citation 8055975 was issued for an alleged violation of §75.370(a)(l). 

The Secretary has proposed a civil penalty of $1,031.00 for this violation. Gravity 

was evaluated as: Reasonably Likely, Permanently Disabling, 2 Persons Affected. 

Consequently, the violation was designated as S&S. Negligence was evaluated as 

moderate. Respondent asserted the section supervisor's air reading, which was 

taken just prior to the inspector showed over 3,200 cfm of air behind the line 

. curtain. The inspector's contemporaneous notes confirm the foreman stated he 

had over 3,000 cfm prior to roofbolters installing roof bolts. In consideration of 

the above, the Secretary agrees to a reduction in negligence and a corresponding 

reduction in the penalty to $462.00 pursuant to Part 100. 

b. 104(a) Citation 8055976 was issued for an alleged violation of §75.370(a)(l). 

The Secretary has proposed a civil penalty of $12,321.00 for this violation. 

Gravity was evaluated as: Highly Likely, Permanently Disabling, 5 Persons 

Affected. Consequently, the violation was designated as S&S. Negligence was 

evaluated as high. Respondent asserted the condition should not have been 

evaluated as highly likely to result in an over-exposure of respirable dust, and was 

3 
not a result of high negligence. Respondent provided results of Continuous 

Personal Dust Monitoring (CPDM) Samples being conducted on the shuttle car 

operators on the section at the time the violation was issued; which were below 

the 1.5 mg standard. The Secretary affirms the Inspector's contemporaneous 

notes reflect management was unaware of the cited condition. Based on the 

results of the CPDM Samples and the short duration of exposure to this condition 

it would be reasonably likely; not highly likely to result in a permanently disabling 

injury. In consideration of the above, the Secretary agrees to a reduction in 

gravity and negligence and a corresponding reduction in the penalty to $1,666.00 

pursuant to Part 100. 

c. 104(a) Citation 8055977 was issued for an alleged violation of §75.370(a)(l). 

The Secretary has proposed a civil penalty of $3,710.00 for this violation. Gravity 

was evaluated as: Highly Likely, Permanently Disabling, 5 Persons Affected. 

Consequently, the violation was designated as S&S. Negligence was evaluated as 

moderate. Respondent asserted the condition should not have been evaluated as 

highly likely to result in a respirable dust over-exposure, and was not a result of 

moderate negligence. Respondent provided results of Continuous Personal Dust 

Monitoring (CPDM) Samples being conducted on the shuttle car operators on the 

section at the time the violation was issued; which were below the 1.5 mg 

standard. The Secretary affirms the Inspector's contemporaneous notes reflect 

management was unaware of the cited condition and the respirable dust 

parameters were in compliance at the start of the shift. Based on the results of the 

CPDM Samples and the short duration of exposure to this condition it would be 

4 
reasonably likely; not highly likely to result in a permanently disabling injury. In 

consideration of the above, the Secretary agrees to a reduction in gravity and 

negligence and a corresponding reduction in the penalty to $749.00 pursuant to 

Part 100. 

d, 104(a) Citation 8055978 was issued for an alleged violation of §75.370(a)(l). 

The Secretary has proposed a civil penalty of $1,031.00 for this violation. Gravity 

was evaluated as: Reasonably Likely, Permanently Disabling, 2 Persons Affected. 

Consequently, the violation was designated as S&S. Negligence was evaluated as 

moderate. Respondent asserted the condition was not a result of moderate 

negligence. The Inspector's contemporaneous notes reflect the roof bolter 

parameters were compliant at the start of the shift. In consideration of the above, 

the Secretary agrees to a reduction in negligence and a corresponding reduction in 

the penalty to $462.00 pursuant to Part 100. 

7. A proposed Order Approving Settlement setting forth the factual bases for this motion is 

attached and incorporated herein by reference. Based upon the review of the facts and the 

assessment procedures of30 C.F.R. Part 100, the Secretary believes that a penalty of 

Three Thousand Three Hundred and Thirty-Nine Dollars ($3,339.00) for the citations 

(incorporated by reference) is reasonable and that payment of this amount will serve to affect the 

intent and purpose of the Act. Except for proceedings under the Act, nothing contained herein 

shall be deemed to constitute an admission of a violation of the Act or regulations. Further, 

except for proceedings under the Act, nothing contained herein is intended to constitute an 

admission of civil liability under any local, state or federal statute or any principle of common 

law. 

5 
8. Each party agrees to bear its own attorney fees, costs, and other expenses incurred by 

such party in connection with any stage of the above-referenced proceeding including, but not 

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

amended. 

Accordingly, the Secretary respectfully requests that the attached proposed Order be 

issued. 

Mailing Address: 

Jeffrey C. Maxwell 

U.S. Department of Labor 

Mine Safety and Health 

Administration 

604 Cheat Road 

Morgantown, WV 26508 

(304) 225-6835 

Respectfully Submitted, 

~~' Conference and Litigation Representative 

UNITED STATES DEPARTMENT OF LABOR 

Mine Safety and Health Administration 

6 
CERTIFICATE OF SERVICE 

I hereby certify that on March 25, 2019 a copy of the Secretary of Labor's Settlement Motion to 

Dismiss and Proposed Order, were electronically served upon the following: 

The Honorable Margaret A. Miller 

Acting Chief Administrative Law Judge 

Federal Mine Safety and Health 

Review Commission 

721 19th Street, Suite 443 

Denver, CO 80202-2536 

Alan S. VanCuren 

Safety Director 

Hopedale Mining LLC 

P.O. Box 415 

Hopedale, OH 43976 

SVanCuren@rhinolp.com 

Whitney Kegley 

wkegley@rhinolp.com 

Cathy Frazier 

cfrazier@rhinolp.com 

~~ Conference and Litigation 

Representative 

maxwell.jeffrey@dol.gov 
Appeal Ex. B

UNITED STATES OF AMERICA 

FEDERAL MINE SAFETY AND HE.AIJI'H REVIEW COMl\.HSSION 

721 HJ'l'H STREE'l', SUITE 443 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitloner/ComplainanUContestant 

V. 

HOPEDALE MINING LLC, 

Respondent 

TO: John Willlam Dye 

DENVER, COLORADO 80202-2500 

SUBPOENA 

: Docket No. LAKE 2019-0149 

' ' 

' ' 

YOU ARE DIRECTED to appear at the place, date, and time specified below to testify at a hearing in the 

above proceeding. 

PLACE OF HEARING 1 DATE AND TIME 

' Federal Mine Safety & Health Review Commission Courtroom l April 241 2019, 9;00 a.m. 

875 Greentree Rd., 7 Parkway Center, Suite 290, Pittsburgh, PA 15220 

□ YOU ARE DIRECTED to appear at the place, date, and time specified below to testify at the taking of a 

deposition in the above proceeding. 

' 

PLACE OF DEPOSITION : DATE AND TIME 

YOU ARE DIRECTED to bring the following items with you: 

Please bring all notes, photographs, and documents associated with the 12/4/2018 inspection at 

the Hopedale mine and the citations at issue In this docket. 

This subpoena Is Issued upon the application of (indicate if attorney/representative for party): 

' PERSON REQUESTING SUBPOENA l ADDRESS, TELEPHONE AND FAX NUMBERS 

ISSUED BY: 

April 10, 2019 

Date 

www.fmshrc.gov 

(202) 434-9900 Fax: (202) 434-9906 

email: info@fmshrc.gov 
PROOF OF SERVICE 

SERVED: !J 1 Irr J 1 -1 

DATE 

SERVED ON (Print Name): -,; . . / 

✓ O NM WI ?-t I lf-111 l> Y/.:; 

SERVED BY (Print Name): 

Sc~ ,..,---W, V&#NtiN"' 

MANNER OF SERVICE: 

/-I-AND IJCLIV~I) 

TITLE: 

DECLARATION OF SERVER 

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the 

Proof of Service is true and correct. (If service was by Registered or Certified Mail, attach return receipt.) 

Executed On: S~PV~ 

Date Signature of Server 

Address of Server: (l r S-c:f-J!,5g//r.ee:e @_) Sm 2 "?al r'?-;;¢ /A: lo.z.z o 

TITLE 29, CODE OF FEDERAL REGULATIONS 

CHAPTER XXVII - FEDERAL MINE SAFETY AND HEAL TH 

REVIEW COMMISSION 

PART 2700, PROCEDURAL RULES 

§ 2700.60 Subpoenas 

(a) Compulsory attendance of witnesses and production of 

documents. The Commission and its Judges are authorized to 

issue subpoenas, on their own motion or on the oral or wril!en 

application of a party, requiring the attendance of witnesses and the 

production of documents and physical evidence. A subpoena may 

be served by any person who Is at least 18 years of age. A 

subpoena may also be served by registered or certified mall, return 

receipt requested, but, in such case, any risk of delivery Is on the 

serving party. A copy of the subpoena bearing a certificate of 

service shall be filed with the Commission or the Judge. 

(b) Fees payable to witnesses. Subpoenaed witnesses shall 

be paid the same fees and mileage as are paid in the dlstrlct courts 

of the Unlted States. The witness fees and mileage shall be paid by 

the party at whose request the witness appears, or by the 

Commission if a witness is subpoenaed on the motion of the 

Commission or a Judge. This paragraph does not apply to 

Government employees who are called as witnesses by the 

Government. 

(c) Motions to revoke or modify subpoenas. Any person served 

with a subpoena may move within 5 [business] days of service or at 

the hearing, whichever is sooner, to revoke or modify the subpoena. 

The Commission or the Judge, as appropriate, shall revoke or 

modify the subpoena If it seeks lnformallon outside the proper 

scope of discovery as set forth in § 2700.56(b}; or if ii does not 

describe with sufficient particularity the evidence required to be 

produced; or If for any other reason It Is found to be invalid or 

unreasonable. The Commission or !he Judge shall set forth a 

concise statement of the grounds for such ruling. 

[Any motion to revoke or modify a subpoena: must be in writing; 

must identify the case by name and docket number: must be signed 

by the filing person: and shall include the filing person's address 

and phone number. 

The motion shall be flied by facsimile transmittal, and a copy shall 

be served by facsimile on the person upon whose application the 

subpoena was Issued. Commission Procedural Rules 5, 6, 7, and 

10.] 

(d} Availabi/f/y of Transcript. Persons compelled to submit 

evidence at a public proceeding are entitled to obtain, on payment 

of prescribed costs, a transcript of that part of the proceeding that 

sets forth their testimony or refers to their production of evidence. 

(e) Fa/lure to Comply. Upon the failure of any person to comply 

with an order to testify or with a subpoena issued by the 

Commission or the Judge, the Judge or the Commission's General 

Counsel, at the request of the Judge or at the direction of the 

Commission, may undertake to initiate proceedings in the 

appropriate district court of the United States for the enforcement of 

the subpoena. 

TENDER OF FEES AND MILEAGE 

Service of a subpoena directing a person's attendance at a 

hearing or deposition shall be accompanied by tendering to that 

person the fees or one day's attendance and the mileage allowed 

by law, except that, when a subpoena is Issued at the request of the 

United States or an officer or agency thereof, fees and mileage 

need not be tendered. Fed.R.Clv.P.45{b). 

PROTECTION OF PERSONS SUBJECT TO SUBPOENAS 

A party or an attorney responsible for the issuance and service of 

a subpoena shall take reasonable steps to avoid lmposlng undue 

burden or expense on a person subject to that subpoena. A party 

or attorney who breaches this duty may be subject to an appropriate 

sanction. Fed.R.Civ.P.45(c){1). 

2 
Appeal Ex. C

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

Office of Administrative Law Judges 

72 l I 9th Street, Suite 443 

Denver, CO 80202-2536 

Office: (303) 844-16 l 6/Fax: (303) 844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION, (MSHA), 

Petitioner, 

v. 

HOPEDALE MINING LLC, 

Respondent. 

CIVIL PENAL TY PROCEEDING 

Docket No. LAKE 2019-0149 

A.C. No. 33-00968-481020 

Mine: Hopedale Mine 

AMENDED MOTION FOR DECISION AND ORDER APPROVING SETTLEMENT 

Pursuant to Section 1 l0(k) of the Federal Mine Safety and Health Act of 1977 ("Mine 

Act") and Commission Procedural Rule 31, the Secretary of Labor moves the administrative law 

judge to approve the settlement reached by the parties and to order Respondent to pay civil 

penalties. In support of this motion, the Secretary states: 

1. The Mine Safety and Health Administration ("MSHA") proposed civil penalties for the 

citations at issue in accordance with the statutory penalty criteria in Section 11 0(i) of the Mine 

Act, 30 U.S.C. § 820(i), and MSHA's civil penalty regulations at 30 C.F.R. Part 100. 

2. The parties hereby resubmit their proposed settlement agreement, with the same 

modifications to the citations and the same proposed penalty reductions previously submitted. 

In addition, the parties hereby submit additional information to support the modifications to the 

citations. The parties rely on the requirements of settlement language as set out in the recent 

decision from the FMSHRC in American Coal Co., LAKE 2011-13, FMSHRC August 2, 2018. 

Exhibit E 
ACTING CHIEF JUDGE MILLER 

The parties assert that the settlement motion includes a description of the "fact on which the 

parties have agreed to disagree." American Coal, page 9. Further, the settlement motion 

demonstrates "the proposed penalty reduction is fair, reasonable, appropriate under the facts, 

and protects the public interest." Id. 

3. Representatives for the Secretary and Respondent have discussed the alleged violations 

and MSHA's proposed penalties, and seek to settle the contested citations and penalties in the 

above-captioned docket as follows: 

MSHA's 

Citation/ Proposed Settlement 

Order Penaltv Amount Other modifications to citation/order 

8055975 $1,031.00 $462.00 Modify Negligence from "Moderate" to "Low" 

8055976 $12,321.00 $1,666.00 Modify Gravity: "Highly Likely" to "Reasonably 

Likely" and Negligence from "High" to "Moderate" 

8055977 $3,710.00 $749.00 Modify Gravity: "Highly Likely" to "Reasonably 

Likely" and Negligence from "Moderate" to "Low" 

8055978 $1,031.00 $462.00 Modify Negligence from "Moderate" to "Low" 

Total $18,093.00 $3,339.00 
4. In reaching this settlement, the Secretary has evaluated the value of the compromise, the 

likelihood of obtaining a better settlement, and the prospects of coming out better or worse after a 

trial. In deciding that such a compromise is appropriate, the Secretary has not given weight to the 

costs of going to trial as compared to the possible monetary results that would flow from 

securing a higher penalty total. He has, however, considered the fact that he is maximizing his 

prosecutorial impact in settling this case on appropriate terms and in litigating other cases in 

which settlement is not appropriate. The Secretary believes that maximizing his prosecutorial 

impact in such a manner serves a valid enforcement purpose. Even if the Secretary were to 

substantially prevail at trial, and to obtain a monetary judgment similar to or even exceeding the 

amount of the settlement, it would not necessarily be a better outcome from the enforcement 

perspective than the settlement, in which all alleged violations are resolved and violations that 

are accepted can be used as a basis for future enforcement actions. A resolution of this matter in 

which all violations are resolved is of significant value to the Secretary and advances the 

purposes of the Act. 

5. The representatives of the Secretary and Respondent have discussed the alleged violations 

and the statutory criteria under Section 110 of the Federal Mine Safety Act of 1977, 30 U.S.C. 

§§ 801 et seq. in reaching this settlement. 

6. 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 and the entry of the proposed Order Approving 

Settlement. 

2 
7. To assist the Commission in evaluating the appropriateness of the settlement penalties 

under Section I !0(i), the Secretary presents the following information in support of the 

penalties agreed to by the parties: 

a. !04(a) Citation 8055975 was issued for an alleged violation of §75.370(a)(l). 

The Secretary has proposed a civil penalty of $1,031.00 for this violation. Gravity 

was evaluated as: Reasonably Likely, Permanently Disabling, 2 Persons Affected. 

Consequently, the violation was designated as S&S. Negligence was evaluated as 

moderate. Respondent asserted the section supervisor's air reading, which was 

taken just prior to the inspector's arrival, showed over 3,200 cfin of air behind the 

line curtain. Respondent argued the air reading taken by the inspector (2,792 cfm) 

is 93% of what is required by the plan (3,000). Respondent further argued this 

difference is not easily detected. The inspector's contemporaneous notes confirm 

the foreman stated he had over 3,000 cfm prior to roofbolters installing roof bolts. 

In consideration of the above, the Secretary agrees to a reduction in negligence to 

low and a corresponding reduction in the penalty to $462.00 pursuant to Part I 00. 

The citation remains designated as S&S. 

b. 104(a) Citation 8055976 was issued for an alleged violation of §75.370(a)(l). 

The Secretary has proposed a civil penalty of$12,321.00 for this violation. 

Gravity was evaluated as: Highly Likely, Permanently Disabling, 5 Persons 

Affected. Consequently, the violation was designated as S&S. Negligence was 

evaluated as high. Respondent asserted the condition should not have been 

evaluated as highly likely to result in an over-exposure of respirable dust, and was 

not a result of high negligence. Respondent provided results of Continuous 

3 
Personal Dust Monitoring (CPDM) Samples being conducted on the shuttle car 

operators on the section at the time the violation was issued; which were below 

the 1.5 mg standard. The Secretary agrees the section foreman was at the 

continuous miner as it cut through from E to F, but was unaware the ventilation 

curtain had not been adjusted per the requirements of the plan prior to cutting 

through. Based on the results of the CPDM Samples and the short duration of 

exposure to this condition it would be reasonably likely not highly likely to result 

in a permanently disabling injury. In consideration of the above, the Secretary 

agrees to a reduction in gravity and negligence to moderate and a corresponding 

reduction in the penalty to $1,666.00 pursuant to Part 100. The citation remains 

designated as S&S. 

c. 104(a) Citation 8055977 was issued for an alleged violation of §75.370(a)(l). 

The Secretary has proposed a civil penalty of $3,710.00 for this violation. Gravity 

was evaluated as: Highly Likely, Permanently Disabling, 5 Persons Affected. 

Consequently, the violation was designated as S&S. Negligence was evaluated as 

moderate. Respondent asserted the condition should not have been evaluated as 

highly likely to result in a respirable dust over-exposure, and was not a result of 

moderate negligence. Respondent provided results of Continuous Personal Dust 

Monitoring (CPDM) Samples being conducted on the shuttle car operators on the 

section at the time the violation was issued which were below the 1.5 mg 

standard. Respondent further argued the location of the plugged sprays made it 

difficult for the miner operator to recognize the sprays were plugged and dust was 

not observed "rolling" over the miner operator or shuttle car operators. The 

4 
Secretary agrees the Inspector's contemporaneous notes reflect the respirable dust 

parameters were in compliance at the start of the shift and the sprays were 

checked after the miner completed the third cut of the shift, when cutting through 

from E to F. Based on the results of the CPDM Samples and the short duration of 

exposure to this condition it would be reasonably likely not highly likely to result 

in a permanently disabling injury. In consideration of the above, the Secretary 

agrees to a reduction in gravity and negligence to low and a corresponding 

reduction in the penalty to $749.00 pursuant to Part 100. The citation remains 

designated as S&S. 

d. 104(a) Citation 8055978 was issued for an alleged violation of §75.370(a)(l). 

The Secretary has proposed a civil penalty of $1,031.00 for this violation. Gravity 

was evaluated as: Reasonably Likely, Permanently Disabling, 2 Persons Affected. 

Consequently, the violation was designated as S&S. Negligence was evaluated as 

moderate. Respondent asserted the condition was not a result of moderate 

negligence. Respondent argued the parameters were compliant at the start of the 

shift and the difference in 10 inches Hg and the 12 inches Hg required by the plan 

was not easily detected by the roof bolter operator. The Inspector's 

contemporaneous notes reflect the roof bolter parameters were compliant at the 

start of the shift. In consideration of the above, the Secretary agrees to a reduction 

in negligence to low and a corresponding reduction in the penalty to $462.00 

pursuant to Part I 00. The citation remains designated as S&S. 

8. A propo·sed Order Approving Settlement setting forth the factual bases for this motion is 

attached and incorporated herein by reference. Based upon the review of the facts and the 

5 
assessment procedures of30 C,F.R. Part 100, the Secretary believes that a penalty of$3,339.00 

for the citations (incorporated by reference) is reasonable and that payment of this amount will 

serve to affect the intent and purpose of the Act. Except for proceedings under the Act, nothing 

contained herein shall be deemed to constitute an admission of a violation of the Act or 

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

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

principle of common law. 

9. Each party agrees to bear its own attorney fees, costs, and other expenses incurred by 

such party in connection with any stage of the above-referenced proceeding including, but not 

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

amended. 

Accordingly, the Secretary respectfully requests that the attached proposed Order be 

issued. 

6 
P.O. ADDRESS: 

Office of the Solicitor 

230 South Dearborn Street 

8th Floor 

Chicago, IL 60604 

Telephone: 312-353-4994 

Fax: 312-353-5698 

Respectfully Submitted, 

KATES. O'SCANNLAIN 

Solicitor of Labor 

CHRISTINE Z. HERI 

Regional Solicitor 

Counsel 

s~~u~ EDWARD V. HARTMAN 

Senior Trial Attorney 

Attorneys for R. ALEXANDER A COST A, 

Secretary of Labor, United 

States Department of Labor, 

Respondent 

7 
CERTIFICATE OF SERVICE 

I hereby certify that on i.l / t; , 2019 a copy of the Secretary of Labor's Settlement Motion to 

Dismiss and Proposed Order, were electronically served upon the following: 

The Honorable Margaret A. Miller 

Acting Chief Administrative Law Judge 

Federal Mine Safety and Health 

Review Commission 

721 19th Street, Suite 443 

Denver, CO 80202-2536 

Alan S. Vancuren 

Safety Director 

Hopedale Mining LLC 

P.O.Box415 

Hopedale, OH 43976 

SV anCuren@rhinolp.com 

Whitney Kegley 

wkegley@rhinolp.com 

Cathy Frazier 

cfrazier@rhinolp.com 

~~Ny 

Attorney 

United States Department of Labor 

One of the Attorneys for Respondent 
Appeal Ex. D

Hon. Margaret A. Miller 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

R. ALEXANDER ACOSTA, Secretary of 

Labor, United States Department 

of Labor, 

Petitioner, 

v. 

HOPEDALE MINING, LLC, 

Respondent. 

CIVIL PENAL TY PROCEEDING 

Docket No.: LAKE 2019-149 

A.C. No.: 33-00968-481020 

Mine: Hopedale Mine 

JOINT STIPULATIONS 

The parties hereby submit the following joint stipulations in the above-referenced matter: 

1. The Federal Mine Safety and Health Review Commission has jurisdiction over these 

proceedings. 

2. Respondent's operations affect interstate commerce. 

3. At all times relevant to the instant proceedings, Respondent was an operator as defined 

in Section 3(d) of the Act and operated the Hopedale Mine, located in or around Harrison County, 

Ohio. 

J-1 
4. Respondent was cited for 178 violations in the 15-month period ending December 4, 

2018. During calendar year 2018, only four Section 75.370(a)(l) violations were issued to the mine 

prior to the citations at issue in this docket. 

5. The subject citations were properly served by a duly authorized representative of the 

Secretary of Labor upon an agent of Respondent on the date indicated therein. 

6. The payment of $3,339.00 will not affect Respondent's ability to continue in business. 

7. With respect to Citation No. 8055975, the parties agree: 

a. 104(a) Citation 8055975 is a violation of 30 C.F.R. § 75.370(a)(l). 

b. 30 C.F.R. § 75.370(a)(l) is a "mandatory health or safety standard" as that term 

is defined in Section 3(1) of the Mine Act, 30 U.S.C. § 802(1). 

c. The number of persons affected is 2, which is the number of miners operating the 

Co. No. 3 roof bolter on the section who could have been exposed to respirable dust during the shift. 

d. The hazard contributed to, overexposure to respirable coal dust and silica, would 

be reasonably likely result in permanently disabling injuries. 

e. The section supervisor's air reading, which was taken just prior to the inspection, 

showed over 3,200 cfm of air behind the line curtain - a volume in excess of the ventilation plan's 

minimum requirement. 

f. The air reading taken by the inspector (2,792 cfm) is 93% of what is required 

by the plan (3,000 cfm). 

J-1 
g. The inspector's contemporaneous notes confirm the foreman stated he had 

measured over 3,000 cfm prior to roofbolters installing roof bolts. 

h. Based upon ,r,r 7(e)-(g), the parties agree the appropriate negligence level is 

HLow." 

1. The reduction in negligence to "Low" reduces the proposed penalty pursuant to 

30 C.F.R. § I 00.3(g)- Table XIV, Penalty Conversion Table. 

j. Using Part 100 penalty tables as a guide, the parties agree a penalty of $462.00 is 

appropriate under§ I I 0(i). 

k. Hopdale Mining, LLC, withdraws its challenge to the S&S gravity 

determination. 

8. With respect to Citation 8055976, the parties agree: 

a. 104(a) Citation 8055976 is a violation of §75.370(a)(l). 

b. 30 C.F.R. § 75.370(a)(l) is a "mandatory health or safety standard" as that term 

is defined in Section 3(1) of the Mine Act, 30 U.S.C. § 802(!). 

c. The number of persons affected is 5, which is the number of miners working in 

the section who could have been exposed to respirable dust during the shift. 

d. The hazard contributed to, overexposure to respirable coal dust and silica, would 

be reasonably likely result in permanently disabling injuries. 

e. Continuous Personal Dust Monitoring (CPDM) Samples being conducted on the 

shuttle car operators on the section at the time the violation was issued were below the I .5 mg/m3 

respirable dust standard. 

J-1 
f. The section foreman was at the continuous miner as it cut through the E to F 

Crosscut, but was unaware the ventilation curtain had not been adjusted per the requirements of the 

plan prior to cutting through. 

g. The miners were exposed to the violative condition for a short period of time. 

h. Based upon 118(e)-(g), the parties agree the appropriate negligence level is 

"Moderate," 

i. Based upon 11 8( e )-(g), the parties agree the likelihood of an injury is 

"Reasonably Likely." 

j. The reduction in negligence to "Moderate" and the reduction to "Reasonably 

Likely" reduces the proposed penalty to $1,666.00 pursuant to 30 C.F.R. § 100.3(g)-Table XIV, 

Penalty Conversion Table. 

k. Using Part 100 penalty tables as a guide, the parties agree a penalty of $1,666.00 

is appropriate under§ 11 0(i). 

I. Hopdale Mining, LLC, has withdrawn its challenge to the S&S gravity 

determination. 

9. With respect to Citation 8055977, the parties agree: 

a. 104(a) Citation 8055977 is a violation of §75.370(a)(l). 

b. 30 C.F.R. § 75.370(a)(l) is a "mandatory health or safety standard" as that term 

is defined in Section 3(1) of the Mine Act, 30 U.S.C. § 802(1). 

c. The number of persons affected is 5, which is the number of miners working in 

the section who could have been exposed to respirable dust during the shift. 

J-1 
d. The hazard contributed to, overexposure to respirable coal dust and silica, would 

be reasonably likely result in permanently disabling injuries. 

e. Continuous Personal Dust Monitoring (CPDM) Samples being conducted on the 

shuttle car operators on the section at the time the violation was issued were below the 1.5 mg/m3 

respirable dust standard. 

f. Because of the location of the plugged water sprays, it would be difficult for the 

continuous miner operator to recognize the water sprays were plugged. Moreover, the rolling of dust is 

a reliable visual sign that water sprays may be ineffectively controlling dust, and dust was not observed 

"rolling" over the miner operator or shuttle car operators. 

g. The Inspector's contemporaneous notes reflect the respirable dust parameters 

were in compliance at the start of the shift and the water sprays were checked after the continuous 

miner completed the third cut of the shift, when cutting through E to F Crosscut. 

h. Based upon ,r,r 9( e )-(g), the parties agree the appropriate negligence level is 

"Low." 

i. Based upon ,r,r 9( e )-(g), the parties agree the likelihood of the hazard to result in 

an injury is "Reasonably Likely." 

j. The reduction in negligence to "Moderate" and the reduction to "Reasonably 

Likely" reduces the proposed penalty to $749.00 pursuant to 30 C.F.R. § l 00.3(g) - Table XIV, Penalty 

Conversion Table. 

k. Using Part 100 penalty tables as a guide, the parties agree a penalty of $749.00 is 

appropriate under§ 11 0(i). 

I. Hopdale Mining, LLC, has withdrawn its challenge to the S&S gravity 

determination. 

J-1 
10. With respect to Citation 8055978, the parties agree: 

a. 104(a) Citation 8055978 is a violation of30 C.F.R. § 75.370(a)(l). 

b. 30 C.F.R. § 75.370(a)(l) is a "mandatory health or safety standard" as that term 

is defined in Section 3(1) of the Mine Act, 30 U.S.C. § 802(1). 

c. The number of persons affected is 2, which is the number of miners operating the 

Co. No. 3 roof bolter machine on the unit who could have been exposed to respirable dust during the 

shift. 

d. The hazard contributed to, overexposure to respirable coal dust and silica, would 

be reasonably likely result in permanently disabling injuries. 

e. At the start of the shift, the roof bolting vacuum parameters were in compliance. 

As the shift progressed, the difference in IO inches of mercury (Hg) observed by the inspector and the 

12 inches Hg required by the approved ventilation plan was not easily detected by the roof bolter 

operator. 

f. Based upon ,r IO(e), the parties agree the appropriate negligence level is "Low." 

g. The reduction in negligence to "Low" reduces the proposed penalty to $462.00 

pursuant to 30 C.F.R. § 100.3(g)-Table XIV, Penalty Conversion Table. 

h. Using Part I 00 penalty tables as a guide, the parties agree a penalty of $462.00 is 

appropriate under§ 1 IO(i). 

i. Hopdale Mining, LLC, has withdrawn its challenge to the S&S gravity 

determination. 

J-1 
11. Each party agrees to bear its own attorney fees, costs, and other expenses incurred by 

such party in connection with any stage of the above-referenced proceeding including, but not limited 

to, attorney fees which may be available under the Equal Access to Justice Act, as amended. 

Dated: April 16, 2019 

P.O. Address: 

U.S. Department of Labor 

Office of the Solicitor 

8th Floor 

230 S. Dearborn St. 

Chicago, IL 60604 

Telephone No.: (312) 353-1143 

Facsimile No.: (312) 353-5698 

E-mail Address: hartman.edward.v(a)dol,g_ov 

Respectfully submitted, 

KATES. O'SCANNLAIN 

Solicitor of Labor 

CHRISTINE Z. HERI 

Regional Solicitor 

Isl Edward V. Hartman 

Edward V. Hartman 

Senior Trial Attorney 

Attorneys for R. ALEXANDER ACOSTA, 

Secretary of Labor, United States 

Department of Labor, Petitioner 

Isl Michael T. Cimino 

Michael T. Cimino, Esq. 

JACKSON KELLY, PLLC 

500 Lee Street East 

Suite 1600 

Charleston, WV 25301-3202 

Telephone No.: (304) 340-1299 

Facsimile No.: (304) 340-1050 

mcimino@jacksonkelly.com 

J-1 
1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

: 

R. ALEXANDER ACOSTA, Secretary of : CIVIL PENALTY PROCEEDING

Labor, United States Department :

of Labor, :

 :

Petitioner, : Docket No.: LAKE 2019-149

 v. : A.C. No.: 33-00968-481020

:

HOPEDALE MINING, LLC, :

:

:

Respondent. : Mine: Hopedale Mine

: Judge Margaret A. Miller

Secretary’s Motion For Reconsideration of Denial of Settlement Agreements, or, 

alternatively, Motion to Revoke Subpoena, or,

alternatively, Motion to Certify For Interlocutory Review and for

Stay Pending Interlocutory Review 

The parties have submitted two settlement motions, both of which the judge denied. In 

the context of these settlement endeavors, the judge issued and served a subpoena ad

testificandum and duces tecum to the MSHA inspector, directing the inspector to appear at the 

trial, at the behest of the court (not the parties), to testify and to produce MSHA’s inspection file 

related to the four § 104(a) citations at issue in this case. In denying the settlement agreements, 

the judge abused her discretion, and the Secretary respectfully requests reconsideration of those 

denials, and moves for an order approving the proposed settlement. Alternatively, the Secretary 

respectfully moves for an order revoking the subpoena. The subpoena is unreasonable, and in 

issuing and serving the subpoena, the judge abused her discretion. Alternatively, the Secretary 

moves for an order certifying these issues for interlocutory review, and for a stay of the case 

pending interlocutory review.
2

I. Motion for Reconsideration of Denial of Settlement, And Motion to Approve Settlement

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 987 (Aug. 2018) (citing American Coal Company, 38 

FMSHRC 1972, 1976 (Aug. 2016). In applying this legal standard, the judge must “accord due 

consideration to the entirety of the proposed settlement package, including both its monetary and 

nonmonetary aspects.” Id. at 989 (citing Madison Branch Mgmt, 17 FMSHRC 859, 867-68 

(June 1995)). The judge must consider any fact that is relevant to whether a settlement is fair,

reasonable, appropriate under the facts, and protects the public interest, even if it falls outside 

§ 110(i). Id. at 989. Facts may come from any party, individually or collectively. Id. at 990. 

The facts required under FMSHRC Rule 31 may include a description of an issue on which the 

parties have agreed to disagree. Id. at 990. The Commission does not require factual 

concessions from the parties in settlement. Id. In the settlement context, the judge may not 

assign probative value to one fact over another fact. Id. at 991. 

In considering the public interest, the judge should bear in mind the flexibility of the 

public interest, and that the court’s function is not to determine whether the settlement is the one 

that will “best serve society,” but only to confirm that the settlement is “within the reaches” of 

the public interest. Armstrong Coal Company, Inc., 36 FMSHRC 1097, 1103 (May 2014). The 

judge must provide a principled reason for approval or rejection of a settlement motion. Knox 

County Stone Co., 3 FMSHRC 2478, 2480 (1981). “In reviewing information supporting a 

reduced penalty in settlement, a Judge ‘need not make factual findings with respect to each of the 

section 110(i) factors as a Judge would in the assessment of a penalty after a hearing.’ ” 

American Coal, 40 FMSHRC at 991. A judge’s decision approving a settlement need only set 
3

forth reasons for the approval and be supported by the record. Id. (distinguishing the legal 

standard for approving a settlement based on information submitted by the parties from the 

higher legal standard requiring judicial findings on each § 110(i) factor following an evidentiary 

hearing).

The judge abused her discretion in denying both settlement agreements. The judge 

denied the Secretary’s first settlement agreement without even citing the settlement standard 

articulated in American Coal, 40 FMSHRC 983 (Aug. 2018). This alone is error. American

Coal, 40 FMSHRC at 988 (“. . . the Judge did not refer to the standard we articulated for 

evaluating penalty reductions in settlement. . . . Neither is there any indication that the Judge 

attempted to apply that standard”). In addition, the judge failed to advise the parties with any 

concrete guidance about what might have been required upon resubmission. The judge’s denial 

is replete with speculation that it “looks like” this operator has a “significant history” of ignoring 

the ventilation requirements, “given everything I see in the file.” The judge fails to describe the 

court’s “file,” or what the court’s “file” might contain other than the Secretary’s petition and the 

operator’s answer. This speculation is not a sufficient reason for denying a settlement, and 

leaves the parties guessing as to what the judge is actually seeking.1

The judge’s decision denying the Secretary’s second settlement motion in this case is 

bereft of the analysis required under American Coal. The judge’s denial of the second settlement 

agreement is an abuse of discretion for four reasons. First, the judge’s reliance on Section 110(i) 

 1 This is not the first time this judge has failed to adequately advise the parties regarding bases 

necessary to approve settlement. In Northshore Mining, the judge similarly provided terse and 

unilluminating denials. See Exhibit A (Secretary’s Second Amended Motion for Decision 

Approving Settlement in Northshore Mining, Docket No. LAKE 2018-177, filed August 23, 

2018). 
4

as the legal standard for reviewing settlements is simply wrong.2 In American Coal, “the Judge 

erred in restricting the factual submissions to facts relating to only the section 110(i) criteria.” 40 

FMSHRC at 989. The judge’s rationale in this regard is troubling because she only cites the 

Commission’s 2016 American Coal decision, but does not cite the Commission’s 2018 American

Coal decision, which fully articulates the Commission’s legal standard for evaluating proposed 

penalty reductions. 

Second, the judge’s outright dismissal of the Secretary’s proffered enforcement value of 

the settlement does not comport with American Coal.

3 In American Coal, the Commission 

validated the Secretary’s interest in the enforcement value of any given settlement. American 

Coal, 40 FMSHRC at 989 (“The Secretary makes a valid point that the fact that the proposed 

settlement preserves all of the citations as written could assist the Secretary in future 

enforcement efforts against this operator by ensuring that the paper record reflects the 

Secretary’s views regarding gravity and negligence stated in the citations”). 

Third, in emphasizing the operator’s general history of violations, the judge assigned

probative value to one fact over another fact – that is, emphasizing the operator’s general history 

of ventilation violations over the facts of the specific violations at issue in this case. This is 

particularly troubling in the context of the ventilation standard (§ 75.370(a)(1)), where there are 

 2 Order Denying Amended Motion for Settlement at 2, n. 1 (“Instead, I rely on the Commission 

direction to address Sections 110(i) and 110(k) of the Act. Am. Coal Co., 38 FMSHRC 1972, 

1981-1982 (Aug. 2016)”), and at 3 (“I conclude that the proposed settlement is not appropriate 

under the criteria set forth in Section 110(i) of the Act”).

 

3 Order Denying Amended Motion for Settlement at 2, n. 1 (“In reviewing this proposed 

settlement, I do not consider the Secretary’s statements in paragraph 4, and particularly the 

statements regarding prosecutorial impact”).

 
5

many different provisions of a ventilation plan that could have been violated, because the judge 

has no evidence on which to conclude that the instant citations are factually related, in any way, 

to the general history to which she refers. Indeed, the Secretary declined to assess any points due 

to the repeated nature of the instant violations,4 suggesting that the instant violations relate to 

different sections of the operator’s ventilation plan. 

Fourth, the judge’s hyperbole in describing the parties’ proposed settlement 

misrepresents the relatively nominal settlement terms in this case. For example, in her first 

settlement denial, the judge stated that “I cannot sign off on such a huge reduction in penalty.”5 

In her second settlement denial, the judge stated that the parties’ proposals “do not support the 

drastic modifications to negligence, gravity, and penalty that have been proposed in the amended 

settlement motion.”6 The modifications in this case can hardly be described as “huge” or 

“drastic” – the negligence of three of the four violations were modified by one level of 

negligence, all four violations were sustained as significant and substantial, and the penalties 

were recalculated based on the penalty tables in 30 C.F.R. § 100.3.7 The judge’s denials of the 

parties’ proposed settlements constitute an abuse of discretion. 

 4 See 30 C.F.R. § 100.3(c)(2). 

5 Exhibit B (Email dated March 25, 2019, from ALJ Margaret Miller to CLR Jeff Maxwell)

(emphasis added).

6 Order Denying Amended Motion for Settlement at 3 (emphasis added). 

7 The judge has demonstrated her unwarranted aversion to revising penalties based on the regular 

assessment tables. See Exhibit C, pages 15-18 (Transcript of Pretrial Conference in Northshore 

Mining Company, Docket Nos. LAKE 2018-147 and LAKE 2018-177, October 16, 2018). The 

Secretary’s use of the Part 100 regular assessment tables in settlement is a prima facie indication 

of a proposed penalty reduction’s fairness, reasonableness, and adequacy under the facts, and 

protects the public interest. The tables in § 100.3 were promulgated pursuant to notice and 

comment rulemaking, are published in the Code of Federal Regulations, and constitute an 
6

The proposed settlement in this case is eminently fair, reasonable, adequate under the 

facts and falls comfortably “within the reaches” of the public interest. See generally American 

Coal, 40 FMSHRC 987 (Aug. 2018). Accordingly, the judge should reconsider her denials and 

approve the settlement. 

II. Motion to Revoke Subpoena

Commission Rule 60(c) provides that a judge “shall revoke or modify the subpoena if . . . 

for any . . . reason it is found to be invalid or unreasonable.” 29 C.F.R. § 2700.60(c). The 

Court’s subpoena in this case should be revoked because it is unreasonable and unnecessary, and 

therefore constitutes an abuse of discretion. 

A. Relevant Facts and Timeline

On March 25, 2019, the Secretary submitted a settlement motion to resolve all violations 

in the present matter. Exhibit D. The case involves four citations alleging violations of Section 

104(a) of the Mine Act, with all penalties calculated using the regular assessment formula

outlined in 30 CFR § 100.3. In the motion, the Secretary proposed to settle the violations by 

retaining the “significant and substantial” designations, while modifying various aspects of the 

citations, and recalculating the penalty, based on those modifications, using the regular 

assessment formula. In the motion, the Secretary also provided a specific reason for each

 

objective and predictable method of calculating settlement penalties. At least one other judge 

concluded it was “appropriate to defer to the judgment of the parties” in arriving at a modified 

penalty based on the § 100.3 tables. Vindex Energy Corporation, 34 FMSHRC 223, 224 (Jan. 

2012) (ALJ). 
7

proposed modification and penalty reduction. The settlement summary is as follows:

Citation Initial

Negligence

Initial 

Gravity

Initial 

Penalty

Negligence 

changed to

Gravity 

Changed to 

Remains 

S&S?

Revised 

Penalty

8055975 Moderate S&S $ 1,031 Low None Yes $ 462

8055976 High S&S $ 12,321 Moderate Highly 

Likely to 

Reasonably 

Likely

Yes $ 1,666

8055977 Moderate S&S $ 3,710 Low Highly 

Likely to 

Reasonably 

Likely

Yes $ 749

8055978 Moderate S&S $ 1,031 Low None Yes $ 462

On March 25, 2019, the judge denied the settlement motion via email. Exhibit B. The 

judge’s rationale for denying the settlement reads, in its entirety:

I appreciate that you have worked hard to settle this case, but I 

cannot approve the settlement you have submitted. These are all 

serious ventilation citations and it looks like this operator has a 

significant history of ignoring the ventilation requirements. 

Ventilation and exposure to coal dust is very important and I 

cannot sign off on such a huge reduction in penalty given 

everything I see in the file. If you would like to renegotiate, let me 

know, if not, I will set i[t] for hearing. Thank you

On March 29, 2019, the judge set the trial for April 24, 2019, in Steubenville, Ohio. 

On April 5, 2019, the Secretary submitted an amended settlement motion in this case. 

Exhibit E. In this second settlement motion, the Secretary specifically cited to the Commission’s 

decision in The American Coal Company (American Coal), 40 FMSHRC 983 (Aug. 2018). In 

this second motion, the Secretary proposed the same settlement terms, and provided additional 

explanation for the proposed settlement terms, arguing that the proposed terms meet the 

Commission’s legal standard that a proposed penalty reduction be fair, reasonable, appropriate 

under the facts, and protects the public interest.

On April 9, 2019, the judge changed the location of the trial to Pittsburg, Pennsylvania. 
8

On April 10, 2019, the judge signed (issued) a subpoena directing the MSHA inspector to 

appear at the trial, and directing the inspector to “bring all notes, photographs, and documents 

associated with the 12/4/2018 inspection at the Hopedale mine and the citations at issue in this 

docket.” Exhibit F, page 1.

On April 12, 2019, the parties submitted a set of stipulations to the judge, advising the 

judge that the parties intended to submit the case on stipulations without calling any witnesses.

Exhibit G.8

On April 17, 2019, at 11:45 a.m., the judge caused the inspector to be personally served 

with the subpoena. Exhibit F, page 2 (subpoena); Exhibit H (log from MSHA office that shows 

the time the subpoena was served).

On April 17, 2019, at 5:06 p.m., via email, the judge served the parties with the order 

denying the second settlement motion. Exhibit I.

B. Argument

Commission Rule 60(c) provides that a judge “shall revoke or modify the subpoena if . . .

for any . . . reason it is found to be invalid or unreasonable.” 29 C.F.R. § 2700.60(c). The 

Court’s subpoena in this case should be revoked because it is unreasonable and unnecessary, and 

therefore constitutes an abuse of discretion. 

1. The Judge’s Subpoena Is Unreasonable

The subpoena is unreasonable and an abuse of discretion because it was issued and 

served in the context of the parties’ settlement motions and is an effort to directly and improperly 

examine the inspector and MSHA’s inspection file while this very issue is pending appeal in the 

 8 The parties intend to submit a revised set of stipulations to the judge in the event the judge 

denies the Secretary’s motion for reconsideration of her denials of the parties’ proposed 

settlements.
9

Solar Sources litigation. The subpoena is also unreasonable and an abuse of discretion because it 

seeks unqualified access to the inspector’s testimony and MSHA’s file without regarding to 

privileges that may apply. The subpoena, therefore, should be revoked. 

First, the judge’s subpoena is an effort to directly and improperly examine the inspector 

and MSHA’s inspection file. The propriety of such ALJ demands is currently on appeal to the 

Commission. See Solar Sources Mining, LLC, Docket No. LAKE 2017-52 (fully briefed and 

pending at the Commission, with oral argument tentatively scheduled for May 20, 2019). It 

appears from the timeline of events that the judge never intended to approve the settlement 

without first examining the inspector and MSHA’s file. Without notifying the Secretary’s 

counsel, the judge issued the subpoena on April 10, 2019, seven days before issuing any order 

denying the second settlement motion (April 17, 2019), and served the subpoena (at 11:45 a.m. 

on April 19, 2019) five hours before serving the parties with the order denying the second 

settlement motion (at 5:06 p.m. on April 17, 2019). This is unreasonable and an abuse of 

discretion, and the subpoena should be revoked.

Second, the subpoena seeks unqualified access to the investigation file without regard to 

the relevance of any particular document in MSHA’s file, without regard to any potential 

privileges that may apply, and without regard to any appropriate objection counsel may assert at 

any hearing. Quite simply, the subpoena amounts to a judicial fishing expedition.9 To the extent 

that the judge intends to examine the inspector concerning his knowledge of the proposed 

 9 This is not the first time that this judge has engaged in similar activity. Recently, in Northshore 

Mining, the judge made inappropriate inquiries into the details of the parties’ settlement 

discussions. See Exhibit C at 13 (“I haven’t heard anything from the Secretary after [the 

operator’s additional information] was provided.”) (Transcript of Northshore Mining, dated 

October 16, 2018). 
10

settlement, such a course is inconsistent with the spirit of Federal Rule of Evidence, Rule 408. 

The subpoena is unreasonable and an abuse of discretion, and should be revoked.

2. The Judge’s Subpoena is Unnecessary

The Inspector’s testimony and investigation file are unnecessary for an evidentiary 

hearing in this case because the parties will stipulate to all necessary facts. Stipulations are 

favored. They are contemplated by the FMSHRC Rules of Procedure, Rule 2700.53; have been 

accepted in lieu of trial testimony, Aggregate Products, Inc., 18 FMSHRC 794 (1996) (ALJ 

Manning); and are commonly required by FMSHRC ALJs in prehearing statements for the 

purpose of narrowing issues and facts for trial. Stipulated facts carry great weight, in part, 

because there is no need for credibility determinations of a live witness. There is no basis to 

question the facts, as proposed by the parties’ stipulations, and those stipulated facts allow for a 

judicial ruling. The judge does not need additional information to issue a ruling with respect to 

the citations at issue. Rather, the stipulations provide sufficient factual information to allow her 

to evaluate the evidence, apply applicable precedent, and issue a ruling.10 While the judge 

laments that the parties’ stipulations “contain no mention of the operator’s significant history of 

similar violations for failure to adhere to ventilation plan requirements,”11 the parties’ 

 10 The Secretary does not challenge the Commission’s authority to issue subpoenas pursuant to 

Section 113(e) of the Mine Act, 30 U.S.C. § 823(e). Rather, the Secretary is arguing that, in the 

context of this case, the judge is abusing her discretion by compelling testimony and documents 

from MSHA in the context of a settlement agreement, in contravention of the Commission’s 

decision in American Coal, and while the precise issue of ALJ demands for inspector notes and 

photos is pending before the Commission in Solar Sources.

11 Order Denying Amended Motion for Settlement, at 2. It is unclear that Exhibit A referenced as 

attached to the order is anything beyond Exhibit A attached to the Petition. If so, the citation 

refers to 10 ventilation violations at this mine in the past two years. There is no information on 

whether those prior violations are even related to the same ventilation plan provision cited here 

or were significant in their own right. MSHA already considered the operator’s “history” in 

proposing the penalty. No other information is required. 
11

stipulations do not preclude the judge from making her own findings based on the stipulations 

presented. The judge is an adjudicator, not a prosecutor. The Court’s subpoena in this case 

should be revoked because it is unreasonable and unnecessary, and therefore constitutes an abuse 

of discretion. 

III. Motion to Certify for Interlocutory Review

Pursuant to Commission Rule 76(a)(1), 29 C.F.R. § 2700.76(a)(1), the Secretary moves 

that the judge certify the issue of her March 25, 2019 decision denying settlement, her April 17, 

2019 decision denying settlement, and the propriety of her April 17, 2019 subpoena for review 

by the Commission. Because the hearing in this matter is scheduled for April 24, 2019, the 

Secretary respectfully requests the judge rule on this motion as soon as possible and stay the 

proceedings to allow review before the Commission. 

The Secretary requests certification of the following questions for interlocutory review:

1. Whether the judge’s March 25, 2019 denial of the settlement constitutes

an abuse of discretion.

2. Whether the judge’s April 17, 2019 denial of the settlement constitutes an 

abuse of discretion.

3. Whether the judge’s April 17, 2019 subpoena to the MSHA inspector 

constitutes an abuse of discretion, or is otherwise unreasonable, as argued in Solar Sources.

Under Commission Rule 76(a)(1), a judge addressing a motion to certify for interlocutory 

review must determine whether the ruling of which review is sought “involves a controlling 

question of law” and whether “immediate review will materially advance the final disposition of 

the proceeding.” 29 C.F.R. § 2700.76(a)(1)(i). 

A question of law is a question that involves an “abstract legal issue” or an issue of “pure 
12

law” rather than “a question of fact or matter for the discretion of the trial court.” McFarlin v. 

Conseco Servs., LLC, 381 F.3d 1251, 1257-58 (11th Cir. 2004); Malbrough v. Crown Equip. 

Corp., 392 F.3d 135, 136-37 (5th Cir. 2004). Questions regarding the interpretation of a statute 

or regulation are questions of law. Ahrenholz v. Bd. of Trs. of the Univ. of Illinois, 219 F.3d 674, 

676 (7th Cir. 2000). The first two questions of which the Secretary seeks certification for 

interlocutory review are paradigmatic questions of “pure law,” as they involve the question of 

whether the judge correctly applied the correct legal standard when denying a proposed 

settlement agreements. The third question involves the judge’s prehearing evidentiary 

requirement for inspector testimony, notes and photographs either to evaluate a settlement or for 

trial purposes.

A question of law is “controlling” if reversal on interlocutory appeal “might save time for 

the [trial] court, and time and expense for the litigants.” Johnson v. Burken, 930 F.2d 1202, 1206 

(7th Cir. 1991) (quoting 16 Charles A. Wright, Arthur R. Miller, Edward H. Cooper & Eugene 

Gressman, Federal Practice and Procedure § 3930 (1977)). In the above-captioned case, 

reversal on interlocutory appeal could end the underlying proceedings “well before a full hearing 

on the merits,” thereby rendering the first two questions of pure law “controlling.” See Black 

Butte Coal Co., 25 FMSHRC 457, 458 (2003) (granting interlocutory review). All questions 

satisfy the Commission’s first requirement for interlocutory review, that they be “controlling 

questions of law.” 

Because resolution of the first two questions may obviate the need for a hearing on the 

merits and the need for the judge to issue a decision following a hearing, such resolution may 

“materially advance the final disposition of the proceedings,” thus satisfying the second 

requirement for interlocutory review. See Arenholz, 219 F.3d at 677 (resolution of a controlling 
13

question of law could head off protracted litigation “because it was indeed a controlling issue”) 

(emphasis in original). The fact that an interlocutory appeal could potentially delay the final 

disposition of the proceedings does not distinguish this case from any other case in which a party 

seeks interlocutory review. That is, the outcome on interlocutory review is never a foregone 

conclusion; the possibility that the decision on interlocutory review would go against the 

petitioner, thus putting the parties back at square one, is always a possibility. See, e.g., Arenholz, 

219 F.3d at 675 (the “mere[ ] filing of a . . . petition [for interlocutory review] tends to delay the 

litigation in the district court”). 

Commission precedent also squarely supports granting interlocutory review in this case. 

The first two questions of which the Secretary seeks certification for interlocutory review in the 

above-captioned case are analogous to — and indistinguishable from — the question certified in 

American Coal Company, 40 FMSHRC 987 (Aug. 2018). The third question the Secretary seeks 

certification for interlocutory review is analogous to, and indistinguishable from, one of the 

questions certified in Solar Sources. 

IV. Conclusion

In denying the settlement agreements, the judge abused her discretion, and the Secretary 

respectfully requests reconsideration of those denials, and moves for an order approving the 

proposed settlement. Alternatively, the Secretary respectfully moves for an order revoking the 

subpoena. The subpoena is unreasonable, and in issuing and serving the subpoena, the judge 

abused her discretion. Alternatively, the Secretary moves for an order certifying the issues for 

interlocutory review, and for a stay of the case pending interlocutory review.
14

Dated: April 22, 2019

Respectfully submitted,

KATE S. O’SCANNLAIN

Solicitor of Labor

CHRISTINE Z. HERI

Regional Solicitor

P.O. Address: /s/ Edward V. Hartman

U.S. Department of Labor Edward V. Hartman

Office of the Solicitor Senior Trial Attorney

 8th Floor

230 S. Dearborn St. Attorneys for R. ALEXANDER ACOSTA,

Chicago, IL 60604 Secretary of Labor, United States

Telephone No.: (312) 353-1143 Department of Labor, Petitioner

Facsimile No.: (312) 353-5698

E-mail Address: hartman.edward.v@dol.gov