January 2021
TABLE OF CONTENTS

COMMISSION DECISIONS
01-21-21

NORTHSHORE MINING COMPANY LAKE 2017-0224

Page 1

COMMISSION ORDERS
01-05-21

U.S. SILICA

WEVA 2020-0270

Page 56

01-12-21

STEWART SERVICES

CENT 2020-0007

Page 58

01-12-21

GCC DACOTAH, INC.

CENT 2020-0155-M

Page 61

01-12-21

CENTRAL SAND CO., INC.

CENT 2020-0178-M

Page 64

01-12-21

NYRSTAR TENNESSEE MINES,
STRAWBERRY PLAINS, LLC

SE 2020-0250-M

Page 67

01-12-21

W.W. CLYDE & CO.

WEST 2020-0141-M

Page 70

01-12-21

SPARTAN MINING CO., LLC

WEVA 2020-0473

Page 73

01-19-21

LUDWIG EXPLOSIVES, INC.

LAKE 2020-0033

Page 76

01-19-21

KC TRANSPORT, INC

WEVA 2019-0622

Page 79

01-22-21

NYRSTAR TENNESSEE MINES,
STRAWBERRY PLAINS, LLC

SE 2020-0251-M

Page 82

i

01-22-21

PEABODY SOUTHEAST MINING,
LLC

SE 2021-0024-M

Page 85

01-22-21

LIMESTONE DUST CORP.

VA 2020-0057-M

Page 88

01-22-21

COAL-MAC, LLC

WEVA 2021-0025-M

Page 91

1-25-21

DECKER COAL CO.

WEST 2021-0015

Page 94

ADMINISTRATIVE LAW JUDGE ORDERS
01-13-21

JONES BROTHERS INC.

SE 2016-0246

ii

Page 98

Review was denied in the following case during the month of January 2021
Pete Tartaglia, Jr. v. Freeport-McMoran Bagdad, Inc., Docket No. WEST 2019-0382 DM (Judge
Simonton, December 2, 2020)

iii

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710

January 21, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. LAKE 2017-0248
LAKE 2017-0224
LAKE 2018-0146
LAKE 2018-0141

v.

NORTHSHORE MINING COMPANY,
ROGER PETERSON, employed by
NORTHSHORE MIINING COMPANY, and
MATTHEW ZIMMER, employed by
NORTHSHORE MINING COMPANY
BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
DECISION
BY: Rajkovich, Chairman; and Althen, Commissioner
These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”) from Cross Petitions for Discretionary
Review filed by the parties. Northshore asks that we find that the Administrative Law Judge
(“Judge”) erred in determining that a citation and order were unwarrantable failures and
constituted reckless disregard.1 41 FMSHRC 50 (Feb. 2019) (ALJ). Messrs. Peterson and
Zimmer ask that we find the Judge erred in assessing penalties against them pursuant to section
110(c) of the Mine Act, 30 U.S.C. § 815(c).2 The Secretary asks that we find the Judge erred in

1

Northshore also petitioned for Commission review of whether the order was a violation.
We declined to undertake that review.
2

Section 110(c) provides “[w]henever a corporate operator violates a mandatory health
or safety standard . . . any director, officer, or agent of such corporation who knowingly
authorized, ordered, or carried out such violation, failure, or refusal shall be subject to the same
civil penalties [as the corporate operator].” 30 U.S.C. § 820(c).

43 FMSHRC Page 1

finding that the order did not constitute a flagrant violation under section 110(b)(2) of the Mine
Act, 30 U.S.C. § 820(b)(2).3
The citation, order, and section 110(c) penalty assessments arise from the dislocation of a
conveyor walkway ramp at a processing plant owned and operated by Northshore. The Order
(Order No. 8897220) alleges that the walkway ramp was “not of substantial construction nor . . .
maintained in good condition,” in violation of 30 C.F.R. § 56.110024 and was a flagrant
violation. S. Ex. 5. The Citation (Citation No. 8897219) alleges that the ramp was “not
barricaded or posted to alert miners to the compromised condition of the floors,” allowing miners
to access the ramp, in violation of 30 C.F.R. § 56.20011.5 S. Ex. Finally, the Secretary undertook
separate proceedings under section 110(c) of the Mine Act against Messrs. Peterson and Zimmer.
As set forth below, we affirm the findings of reckless disregard and an unwarrantable
failure for both violations. Substantial evidence does not support the Judge’s assessment of
individual penalties under section 110(c), and we reverse those findings. We affirm the Judge’s
deletion of the flagrant designation for the violation of section 56.11002.
I.
Factual and Procedural Background
A. Factual Background
1. Background of the Mine and the Events Preceding the Accident
Northshore operates a large iron ore mine in Minnesota including a production plant that
processes iron ore pellets, known as taconite. The production plant houses a conveyor gallery,
which contains two parallel conveyor belts: the 62 conveyor and the 162 conveyor. The
conveyors are 400 feet long. Tr. 150. They slope at an upward angle and transport taconite from
various facilities either up to storage bins or back to the production yard.

3

Section 110(b)(2) of the Mine Act defines a flagrant violation as “a reckless or
repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health
or safety standard that substantially and proximately caused, or reasonably could have been
expected to cause, death or serious bodily injury.” 30 U.S.C. § 820(b)(2).
4

Section 56.11002 provides that “[c]rossovers, elevated walkways, elevated ramps, and
stairways shall be of substantial construction provided with handrails, and maintained in good
condition. Where necessary, toeboards shall be provided.” 30 C.F.R. § 56.11002.
5

Section 56.20011 provides that “[a]reas where health or safety hazards exist that are not
immediately obvious to employees shall be barricaded, or warning signs shall be posted at all
approaches. Warning signs shall be readily visible, legible, and display the nature of the hazard
and any protective action required.” 30 C.F.R. § 56.20011.

43 FMSHRC Page 2

A center walkway between the two conveyor belts serves as the primary travelway in the
conveyor gallery. It is constructed of two separate layers. The top layer is comprised of concrete
reinforced with steel mesh, and the bottom layer consists of reinforced perlite6 panels. Tr. 31617, 365; S. Ex. 12. Steel plates were added under the center walkway in 2010 for additional
reinforcement.
Along the outer side of the two conveyor belts are two additional walkways in the
gallery: the east outer walkway and the west outer walkway. The dislocation at issue occurred at
the east outer walkway. Tr. 52-53, 58-59. Both outer walkways are approximately 30 inches
wide, much narrower than the center walkway. They are four inches thick. They rise along the
full length of the gallery, parallel to the center walkway and conveyor belts to a height of
approximately 72 feet. They are constructed in similar fashion as the center walkway (reinforced
concrete over reinforced perlite panels) but do not have added underlying steel plates.
Unlike the center walkway, the outer walkways were not normally used as travelways.
They would only be accessed when a belt support roller, known as an “idler,” needed to be
changed or if cleaning the outer walkways was necessary. The rollers were approximately 40
inches wide and weighed about 100 pounds.7
Daniel Scamehorn has been the supervisor in charge of providing engineering services
for all areas of the mine since 2011. In 2013, one of Scamehorn’s subordinate engineers
submitted a work order concerning the need for repairs in the 62/162 gallery, including the outer
walkways. The work order stated that: “Lightweight concrete [perlite] panels on underside of
62/162 belt gallery are falling. . . . Center walkway was repaired with steel plate; outside
walkways and below conveyor need to be repaired.” S. Ex. 18. It stated the “[b]est procedure is
to demo [the panels]” and “put a plate on under side.” Id. Repairs, however, were not made at
that time. Instead, repairs to the 62/162 gallery’s outer walkways were put on what Scamehorn
described as the equivalent of a “to-do list.” Tr. 339.
2. The KOA Report
Scamehorn contracted with Krech & Ojard (“KOA”), an engineering firm, for a thorough
review and second opinion on the condition of the gallery, including an examination of the outer

6

Perlite is “one of the natural volcanic aluminosilicate glasses (rhyolitic rocks) which
formed by the rapid cooling of viscous lava or magma.” Reka, Arianit A., et al., Chemical,
mineralogical and structural features of native and expanded perlite from Macedonia, Journal of
the Croatian Geological Survey and the Croatian Geological Society, 2019 | 72/3 | 215-221
(2019) at 215. The perlite at the plant is a “portland cement mixture but it has perlite aggregates
in it as opposed to general concrete.” Tr. 241.
7

It was necessary to clean the outer walkways periodically because taconite would spill
over from the conveyors and accumulate on the outer walkways. Miners would use hoses to
wash taconite down the outer walkways. Miners therefore needed to work on the outer walkways
in order to do a “thorough cleaning.” Tr. 435.

43 FMSHRC Page 3

walkways. Tr. 323-24; 41 FMSHRC at 54. Patrick Leow, an engineer with the firm, went to the
mine in March 2015 to examine the gallery.
In June 2015, KOA completed a report setting out its observations and conclusions. The
report found that KOA had not seen holes in the outer walkways, but it did “[o]bserve[. . .]
damage . . . [that] included spalled concrete, delaminated concrete, debonded reinforcement and
corroded reinforcement over large areas of the walkway slab underside.”8 S. Ex. 12, at 1. The
report also noted that the topping slab was “in poor condition and i[n] need of replacement due to
the large surface cracking and heaving . . . .” Id. The report concluded that “the deteriorated
perlite slabs are compromised and provide little to no structural support” and that “[t]he heaving
and cracked concrete topping slab is also compromised providing little to no structural support in
the walkways as well as presenting an uneven walking surface.” Id. at 2
The report indicated that the outer walkways lacking steel plate reinforcing “may not
contain adequate structural support for the use of these walkway areas.” S. Ex. 12, at 2; Tr.
144. The report concluded that, while the reinforced portions of the center walkway could
withstand some limited “minor” use, the outer walkways “cannot be found to be structurally
adequate for use.” S. Ex. 12, at 2. The report recommended that Northshore “prohibit” the
transportation of heavy equipment along the center walkway and “restrict” access to the outer
walkways “as they are not safe for personnel to be using until a repair has been completed.”
S. Ex. 12, at 2.
Scamehorn shared the report with other management personnel, including Zimmer and
Peterson. Zimmer was a Section Manager responsible for scheduling repairs, planning repairs,
and monitoring equipment to “predict failure . . . before the failure actually occurs.” Tr. 380-83.
Peterson was responsible for maintenance of the conveyor. Tr. 418-20. Scamehorn did not close
the outer walkways to foot traffic but did instruct Zimmer and Peterson to “restrict access as
noted.” Tr. 327.
Scamehorn testified that he initially was uncertain about what Leow meant by the term
“restrict.” Tr. 326-29. He testified to a follow-up discussion with Leow, during which Leow said
the report’s observations about the condition of the concrete of the outer walkways pertained
only to localized spots and did not suggest a potential failure of the overall walkway.
Furthermore, Leow testified that he had used the term “restrict” to indicate that there was no
outright prohibition on travel along the outer walkways, so long as travel was minimal and
limited to “authorized personnel” and that further preventative safety measures were taken.
Tr. 370-71.
Scamehorn testified that, based upon his understanding of the report and his subsequent
discussion with Leow, Northshore instituted a requirement that employees wear fall protection
when accessing the outer walkways. They did not erect any barricades or post any warning signs
about the condition of the walkways.

8

Spalled concrete means the surface of the concrete contains cracks or is chipping. It is
commonly seen in concrete driveways. Delamination is a splitting into layers.

43 FMSHRC Page 4

The requirement of fall protection was conveyed to Northshore’s workforce through
safety meetings and trainings. According to Zimmer, Peterson, and a maintenance supervisor
Erik Ollila, management did not receive any complaints from the workforce regarding the need
to wear fall protection. Tr. 452.
Operations at the mine slowed between November 2015 and March 2016. According to
Ollila, shortly after operations fully resumed, miners informed Northshore that perlite from the
underside of an outer walkway was falling from the bottom of the conveyor gallery. In response,
Northshore brought in jersey barriers to barricade the area below the walkways where the
material was falling.
3. The Accident and MSHA’s Investigation
On September 6 and 7, 2016, Evander King and two other contract miners, received
orders from Northshore to clean the east outer walkway. The walkway was covered with 6 to 12
inches of taconite pellets and mud. Their job was to wash taconite pellets down the walkway in
order to remove it. As they washed the material down the walkway, it began to amass into a
larger amount of material.
Dennis Lehtinen, an hourly day-crew operator, gave the work instructions to the cleanup
crew. Lehtinen had been instructed by John Gornick, the Electrical Supervisor and the liaison to
contract employees, to tell the crew to wear the fall protection. Lehtinen testified that he went to
the 62/162 conveyor gallery to make sure they were wearing the fall protection correctly. He
stated that he went to the top of the conveyor gallery and observed that the crew members were
tied off at an appropriate place. According to King, Lehtinen basically instructed the crew
members generally on how to put the safety harnesses on and how to tie off with the lanyard
from the harness. Lehtinen testified that he effectively instructed the crew to tie off the entire
time, by taking them through the process. According to Lehtinen, he instructed them to affix
lanyards in sequence as each descended the walkway, and he told them to tie off to structural
steel supports. Tr. 485-87.
King testified that he heard Zimmer and Gornick decide that the crew should use fall
protection. King asked them why it was necessary for the enclosed walkway. Peterson replied
that fall protection was needed in case the miners slipped on the pellets or if a piece of their
clothing got caught in the conveyor. 41 FMSHRC at 52.
King testified that Lehtinen did not instruct the contract crew specifically on how or
where to tie off as they went down the walkway and that it was not possible to be tied off 100%
of the time on the outer east walkway. He said that, due to the location of anchor points, miners
would “unclip, take off the strap with the D-rings, move down, put the strap back on, and then tie
the lanyard to the D-ring and reclip it.” Tr. 54-55.
The crew was unable to finish the cleanup before the end of its shift on September 6,
2016 and resumed its work the following day. King testified that he was hosing down the
taconite pellets at a height of approximately 50 feet when “the entire structure began to shake.”

43 FMSHRC Page 5

Tr. 58-59. “[A]ll of a sudden sheets of thick, caked mud” and other “buildup around the structure
began falling.” Tr. 58.
As instructed, King was wearing fall protection. He saw a hole covered by wire mesh in
the floor immediately in front of him. He waited briefly to make sure the event was over,
unclipped himself from his lanyard, and ran back up the ramp.
King testified that, immediately after the event, maintenance technician Matthew Bailey
ran up to the transfer tower and asked the crew what happened. King told Bailey that “something
just gave way in there.” Tr. 60. Bailey asked, “You were on this side?” Id. King responded,
“yes.” Id. Bailey said, “You never should have been in there.” Id. Bailey said to King that the
conveyor should have been shut down and, “we’ve been telling them [upper management] that
that has been in terrible condition for years now.” Id. King testified that Bailey repeated this
statement as he drove the crew to the pelletizer break room.
Later that day, in the break room, King told Senior Maintenance Technician Steven Floen
what had happened. Floen became “very angry” and “he said that he had been telling those
people upstairs about this problem for a long time, years he said even.” Tr. 61. King testified that
Floen said, “they [upper management] just don’t seem to care.” Id.
King testified that when he returned to work on September 8, 2016, Gornick “said he was
glad that nothing terrible had happened but that they had known the potential of a collapse or of a
failure and they had been hoping to take the weight of the pellets off to make sure the ramp
would last a little bit longer before they had to replace it.” Tr. 66.
The following day, King submitted a hazard complaint to MSHA about the 62/162
gallery’s outer walkways. The complaint stated that “miners were assigned to a work area
without being informed of known hazards.” S. Ex. 2. MSHA Inspector Terrance Norman
conducted the investigation to follow up on the complaint. Norman also consulted with Michael
Superfesky, an MSHA civil engineer.
Superfesky examined the plant. He confined his inspection of the walkways to views
from beneath the walkway and did not examine the walkway from above. In testifying regarding
the perlite, he opined that wire mesh is “essential” to construction because the tensile strength of
concrete is “very poor” on its own. Tr. 242. Once the mesh debonds from the perlite, the loadcarrying capacity of the walkway is “highly compromise[d]” and “you don’t want to walk on it.”
Tr. 243. Superfesky’s testimony, however, shows he did not realize that the concrete above the
perlite panels was reinforced with steel mesh. Tr. 261.
Superfesky concluded that the mesh in the lower layer of perlite had debonded and that
the outer east walkway was structurally deficient for foot traffic at the time of the accident.
Superfesky also inspected the outer west walkway and noted debonding and spalling on that
walkway, as well.
Superfesky testified that fall protection does not prevent serious injury when the hazard is
a structural deficiency. He asserted that the force on the body when falling with protection is

43 FMSHRC Page 6

severe, the miner might be hit with debris from the collapse, and if not rescued quickly,
suspension trauma might cut off circulation resulting in loss of limb. His testimony in this
respect was general and did not include analysis of any likelihood of injuries, possible, probable,
or expected at the Northshore plant.
Mine management conducted its own investigation. According to Michael Osmundson,
an expert metallurgist, and David Franseen, an expert KOA engineer, the failure of a diagonal
steel cross member beam caused the dislocation of the walkway. The beam failed at a series of
rivet holes positioned above the walkway due to the weight of taconite being washed down the
walkway. As a result of the steel failure, the steel structure rotated and removed support from the
outer edge of the portion of the walkway that failed. The steel structure supporting the east
walkway had dropped about 2 feet at the point of failure causing a segment of the floor to
dislocate. Tr. 522, 526, 528, 530; Resp. Ex. M3; Resp. Ex. M5; Resp. Ex. O.
A subsequent analysis of the failed beam by metallurgist Osmundson demonstrated, and
Superfesky agreed, that a crack had existed at the point of failure on the diagonal steel beam.
Osmundson testified that the crack had developed at a connection point near the roof of the
gallery structure and was covered by a gusset plate, obscuring the crack from view. Tr. 501-02;
Resp. Ex. K. During cross-examination, MSHA’s Superfesky agreed that the immediate cause of
the dislocation was the failure in the steel beam but asserted that if the walkway had been in
better condition it would not have dislocated. Tr. 287-288. It was noted that after the incident, the
walkway remained intact even with only one side supported by steel. In repairing the walkway,
the concrete came out in long unbroken segments and was difficult to break. Tr. 399, 533.
4. MSHA’s Issuance of the Citation and Order
Following MSHA’s investigation, the agency issued the order alleging the “reckless
disregard,” “unwarrantable failure,” and “reckless” flagrant violation of section 56.11002
alleging Northshore’s failed to maintain the walkway in “good condition.” S. Ex. 5, at 5-6.
MSHA also issued the citation alleging a “reckless disregard” and “unwarrantable failure”
violation of section 56.20011 for the failure to barricade or warn miners away from the damaged
walkways. S. Ex. 6. MSHA proposed penalties of $130,000 and $69,400 respectively.
MSHA also issued proposed penalty assessments against Zimmer and Peterson. The
assessments alleged that they had knowingly failed to maintain the walkways in good condition
and proposed penalties of $4,300 and $4,500 respectively. These assessments were based upon a
later investigation and interviews conducted by MSHA Investigator James Hautamaki, from
November, 2016 to January, 2017.
Northshore, Zimmer and Peterson filed notices of contest. The matters were assigned to
the Judge, who consolidated the dockets for a single hearing.
B. The Judge’s Decision
In upholding the citation and order, the Judge found them to be S&S and the result of an
unwarrantable failure and reckless disregard. 41 FMSHRC at 61, 63, 66. The Judge found

43 FMSHRC Page 7

Zimmer and Peterson personally liable under section 110(c) for knowingly failing to maintain
the walkways in good condition. Finally, the Judge found the violation of section 56.11002 was
not a flagrant violation. Id. at 68-69.
1. The Charge of Individual Penalty Assessments to Zimmer and Peterson
The Judge noted that Zimmer and Peterson had worked at the mine for 13 years and 25
years, respectively, and had managerial roles since at least 2015. The Judge found that Zimmer
and Peterson used the requirement of fall protection to avoid fixing the actual problem: the
hazardous walkway. She concluded that they “failed to act on the basis of the walkway
information to protect worker safety and health.” Id. at 76.
The Judge also relied on the fact that Zimmer and Peterson received copies of the KOA
report, along with the email from Scamehorn suggesting that they “restrict” access. According to
the Judge, they should have known that the conveyor walkways must be maintained in good
condition or, alternatively, restricted from access appropriately. As such, the Judge found that
Zimmer and Peterson engaged in a knowing violation of section 56.11002, and assessed a
penalty of $4,000 against each of them.
2. The Charged Violation of 30 C.F.R. § 56.20011
In concluding that Northshore’s failure to barricade the walkway “was the result of
reckless disregard,” the Judge found that that Northshore “knew of the problem with the east
walkway but took no steps to limit access,” thereby demonstrating “an indifference to a known
violation.” Id. at 71.
The Judge also upheld the unwarrantable failure designation. The Judge’s analysis was
similar to that concerning section 56.11002 set forth in detail below.
3. The Charged Violation of 30 C.F.R. § 56.11002
a. Reckless Disregard
In analyzing negligence, the Judge found that the walkway “continued to deteriorate”
after the KOA report and concluded that the operator’s failure to maintain the walkway in good
condition was the result of reckless disregard. Id. at 62. The Judge found that “mine management
knew of the condition of the area yet demonstrated indifference to the violation, thereby placing
the contract miners in a hazardous position.” Id. at 63.
b. Unwarrantable Failure
The Judge found aggravating circumstances for each of the seven factors used to evaluate
unwarrantable failure violations. Id. at 63-66, citing IO Coal Co., 31 FMSHRC 1346, 1352 (Dec.
2009). Although the Judge acknowledged the testimony of the KOA expert who was present
throughout the dismantling of the structure (Id. at 59), the Judge credited Superfesky’s testimony
that the condition of the walkway was the primary reason for the failure. The Judge also credited

43 FMSHRC Page 8

Inspector Norman’s testimony regarding statements made by miners during his investigation,
namely that miners had complained about the walkway being in a deteriorating condition. The
Judge rejected Leow’s explanation that his use of the term “restrict” in the KOA report did not
suggest a complete prohibition of use of the walkways. Id. at 59.
c. Flagrant Charge
The Judge found all of the criteria for a flagrant violation existed except Northshore’s
conduct was not “reckless” within the meaning of section 110(b)(2). Id. at 68-69. The Judge
cited The American Coal Co., 38 FMSHRC 2062, 2069-70 (Aug. 2016), for the proposition that
“based on the heightened penalties available under the flagrant provision, the violations should
be distinguishable from those addressed under the S&S and unwarrantable failure provisions of
the Act. . . . Thus, the ‘reckless failure’ component of a flagrant violation requires a higher
negligence showing than that required under the unwarrantable failure analysis.” 41 FMSHRC at
68.
The Judge opined that to sustain a flagrant violation, the Secretary must prove a
heightened degree of recklessness in which the operator consciously disregards an expectation of
serious injury. The Judge found that Northshore believed, albeit wrongly, that fall protection
would “solve the problem” with the walkways until repairs were completed. Id. The Judge found
that the operator “could have repaired the walkway, but the mine chose to use fall protection as a
solution,” but that “[g]iven that decision, there is no evidence to suggest a conscious or
deliberate indifference to the risks on the part of the mine.” Id.
Thus, the Judge found that Northshore’s conduct was insufficient to meet the
recklessness necessary for a flagrant violation. Id. at 68-69. Upon dismissing the flagrant
violation, the Judge assessed a penalty of $60,000 for Order No. 8897220. Id. at 77.
II.
Disposition
A. Substantial Evidence Does Not Support the Judge’s Findings of Individual
Liability of Zimmer and Peterson under Section 110(c).
Section 110(c) provides that:
Whenever a corporate operator violates a mandatory health or
safety standard[,] . . . any director, officer, or agent of such
corporation who knowingly authorized, ordered, or carried out
such violation . . . shall be subject to the same civil penalties, fines,
and imprisonment that may be imposed upon a person under
subsections (a) and (d).

43 FMSHRC Page 9

30 U.S.C. § 820(c).
An agent violates section 110(c) through a knowing violation “when an individual ‘in a
position to protect employee safety and health fails to act on the basis of information that gives
him knowledge or reason to know of the existence of a violative condition.’ Kenny Richardson, 3
FMSHRC at 16. Section 110(c) liability is predicated on aggravated conduct constituting more
than ordinary negligence. BethEnergy, 14 FMSHRC at 1245.” McCoy Elkhorn Coal Corp., 36
FMSHRC 1987, 2003 (Aug. 2014) (Young, M. and Althen, W. concurring and dissenting).
Importantly here, a violation of section 110(c) requires that the agent must be “in a
position” to remedy the condition at issue, in order for section 110(c) liabilities to attach. See,
e.g., Maple Creek Mining, Inc., 27 FMSHRC 555, 567-70 (Aug. 2005) (one foreman was liable
for water accumulation but two were not because they did not have authority to take remedial
action); see also Lafarge Constr. Materials, 20 FMSHRC 1140, 1148 (Oct. 1998), citing Kenny
Richardson, 3 FMSHRC 8, 16 (Jan. 1981).
Applying this standard, substantial evidence does not support the Judge’s findings that
Zimmer and Peterson were “in a position” to take action to repair the walkway. The Judge found
that “Zimmer testified that it was part of his job to plan and coordinate the maintenance and
repair work that would take place in the 62/162 gallery, and ensure that his group worked
safely.” 41 FMSHRC at 74. However, the Judge failed to distinguish the scope of Zimmer’s
repair duties regarding the walkway structures as opposed to the conveyors. Nor did the Judge
distinguish how much involvement, if any, Zimmer had on how to prioritize, as opposed to
implement, repairs.
In fact, the record contradicts the Judge’s findings. Specifically, the evidence shows that
the duty of arranging for repairs of the walkways fell strictly within the purview of the
Engineering Department, which was overseen by Scamehorn – not by Zimmer or Peterson. Tr.
314, 339, 358, 370, 371. Scamehorn testified about his evaluation process of determining which
projects should be prioritized. Tr. 353-55. Importantly, according to his testimony, the
Engineering Department, and not Zimmer, decided whether to initiate repairs of the walkways,
and how to prioritize the repairs – as opposed to any other department. Id.
Moreover, the record demonstrates that, prior to June 1, 2015, Zimmer was in charge of
maintaining the pellet plant and equipment at the mine. Tr. 381. This is an important distinction.
Additionally, Jason Betzler, a Northshore maintenance planner, testified that work orders
sent to the Engineering Department under Scamehorn would address the maintenance of the
buildings, grounds, “or anything that required engineering or structure. . . .” Tr. 304 (emphasis
added). By contrast, Zimmer was involved only in the “maintenance of the conveyors inside” the
structures, as opposed to the maintenance of the walkway structures themselves. Tr. 384-85.
(emphasis added).
Regarding Zimmer’s work after June 1, 2015, he oversaw day-to-day planning,
scheduling, and reliability functions. Tr. 382. Zimmer testified that the planning and scheduling
were essentially “administrative” functions. Tr. 382-83. Zimmer supervised the planners who

43 FMSHRC Page 10

planned out the work, determined what was needed for the job, what parts needed to be bought,
how the work would get done, and how many technicians are required to do the job. Tr. 383. He
also supervised the schedulers who organized the work orders in the backlog to repair a piece of
equipment at a given point in time.9 Tr. 382-83.
In other words, the record demonstrates that Zimmer primarily oversaw the
implementation of repair efforts once they were initiated, but did not have the discretion to
decide whether to initiate such repairs in the first place or how to prioritize them. In fact, Zimmer
took “direction” from the Engineering Department. Tr. 386. As such, substantial evidence does
not support the Judge’s finding that Zimmer was “in a position” to be responsible for
maintenance of the walkway or other building structures or grounds. He was not in a position to
order any remedy to structural problems with the walkway.
Similar facts pertain to Peterson. He was responsible for overseeing the running of
equipment. Tr. 418. Any maintenance duties he had at the facility were similar to those of
Zimmer. Thus, Petersen testified that he was in charge of maintaining and repairing equipment.
Tr. 418. As with Zimmer, Peterson did not have control over a project when it was assigned to
the engineering department. Tr. 420-21.
The Judge found that “Peterson was largely responsible for reviewing work orders,
prioritizing and directing maintenance work, and, when necessary, informing miners of any
changes in safety policies or procedures.” 41 FMSHRC at 74. However, as noted above,
Peterson’s maintenance and work order duties appeared to only relate to equipment, and not to
the building structures, such as the walkway. Repair of the walkway, by contrast, fell within the
purview of the Engineering Department.
The fact that neither Zimmer nor Peterson was in a position to initiate or prioritize repairs
of the walkway is unsurprising when viewed in light of the significance of the repairs that were
required. Unlike the typical section 110(c) scenario involving a foreman observing and ignoring
an easy-to-fix hazard, such as a stuck belt roller, the operator here bore the responsibility to take
care of and repair the entire gallery walkway. Such remedial efforts would have taken extensive
time, effort, and expense, as shown by the KOA report. See S. Ex.12. Northshore estimated the
total cost of all walkway repairs to be $300,000 prior to the dislocation. There is no evidence in
the record to indicate that either Zimmer or Peterson were in a position to authorize such a large
expenditure.
Based upon the foregoing discussion, we find Zimmer and Peterson were not in a
position to initiate, create, or prioritize a plan to repair the outer walkways. Accordingly, we
reverse and vacate the Judge’s section 110(c) findings.

9

Zimmer also supervised the monitoring of the pellet plant equipment. Tr. 383.

43 FMSHRC Page 11

B. Substantial Evidence Supports the Judge’s Finding that the Operator’s
Violation of 30 C.F.R. § 56.20011 Resulted from its Reckless Disregard and
Unwarrantable Failure.
Northshore accepts that it was aware of the hazards on the walkway and that, nonetheless,
the walkway was not barricaded. The requirement in section 56.20011 is site-specific. It goes to
the issue of what should be done on the site – not what is happening at a meeting off the site. The
KOA report specifically recommended restricting access on the outer walkways precisely
because the walkway was “not safe” to work on. S. Ex. 12, at 2.
Despite knowing the walkway should be barricaded, Northshore left the site without a
barricade for more than a year. During that period, the walkway was open to anyone, and
although some might recognize the surface conditions, others might not have appreciated the
hazard of walking on the walkway especially due to the buildup of mud and taconite. Nothing
was done to bar entry.
Finally, despite obtaining review before the Commission, Northshore offered the
Commission no argument for reversal thereby effectively waiving its request for review. Having
not been presented with a viable reason for Northshore’s failure to comply with the mandatory
standard, we find none. Accordingly, the Commission affirms the findings of reckless disregard
and unwarrantable failure for Citation No. 8897219.
C. The Judge Properly Found That Northshore’s Violation of Section 56.11002 was
Not Flagrant.
We affirm deletion of the “flagrant” designation for the violation of section 56.11002.
1. Background of “Flagrant” in Section 110(b)(2)
In response to sequential tragedies at the Sago, Alma, and Darby mines in 2006,
Congress enacted the MINER Act. Among other changes to the Mine Act, Congress inserted an
enhanced penalty for a new type of violation – a flagrant violation. The definition of a “flagrant”
violation is succinct but complex. A flagrant violation is “a reckless or repeated failure to make
reasonable efforts to eliminate a known violation of a mandatory health or safety standard that
substantially and proximately caused, or reasonably could have been expected to cause, death or
serious bodily injury.” 30 U.S.C. § 110(b)(2).
Of course, as with all assessments, the Secretary bears the burden of proving all
necessary elements of a violation. Therefore, the Secretary has an obligation to prove each
element of a flagrant violation by a preponderance of the evidence.
The legislative history of the MINER Act makes it clear that Congress and the President
intended flagrant violations to target the elimination of particularly severe violations of the mine
safety and health standards. The flagrant penalty targets “bad actors”’ who fail to take their
safety responsibilities seriously by providing an increased maximum penalty for flagrant
violators. 152 Cong. Rec. S4619 (daily ed. May 16, 2006) (statement of Sen. Michael Enzi); see
also 152 Cong. Rec. E1071 (daily ed. June 8, 2006) (statement of Rep. Jerry F. Costello)

43 FMSHRC Page 12

(supporting “stiffer penalties for flagrant violations of the law”). Upon signing the MINER Act
into law, President George W. Bush stated: “[T]o ensure compliance with the law, the MINER
Act will increase the maximum penalty for flagrant violations of mine safety regulations nearly
four-fold.” Presidential Statement on Signing the Mine Improvement and New Emergency
Response Act of 2006, 2006 U.S.C.C.A.N. S27 (June 15, 2006).
Further, the Commission has observed that the Mine Act’s overarching enforcement
scheme promotes mining operators’ compliance with its requirements by providing
“‘increasingly severe sanctions for increasingly serious violations or operator behavior.”’ Emery
Mining Corp, 9 FMSHRC 1997, 2000 (Dec. 1987), quoting Cement Div., Nat’l Gypsum Co., 3
FMSHRC 822, 828 (Apr. 1981). Inclusion of the flagrant provision in the MINER Act added
another, expressly severe sanction for especially wrongful misconduct. A four-fold increase in
potential penalties demonstrates that the denomination of “flagrant” applies to the most serious
violations of the Mine Act in the final step of civil penalties.
Recognizing this legislative history and consistent with the progressive scheme of
deterrence, in American Coal, 38 FMSHRC at 2069-70, a unanimous Commission found the
flagrant provision created a type of conduct not previously addressed in the Mine Act. We found
that a flagrant violation must constitute conduct of a violation other than the existing types of
violations stating:
[I]t is reasonable to expect that flagrant violations be of a type that
was not addressed in the original Mine Act. Otherwise, Congress
could have simply increased the maximum amount at which a
penalty can be assessed and avoided creating a new statutory
classification of violation.
Id..
The Commission recognized that the Mine Act already dealt with unwarrantable
failures – that is, conduct involving aggravated conduct constituting more than ordinary
negligence. Emery Mining, 9 FMSHRC at 1997. Additionally, through the treatment of
“significant and substantial” violations, the Mine Act dealt more harshly with violations that
create a cause and effect resulting in a reasonable likelihood of a reasonably serious injury.
Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984); Peabody Midwest Mining, LLC, 42 FMSHRC 379
(June 2020). If Congress wished simply to enhance penalties for these types of violations, it
could have done so through penalty increases standing alone. Instead, it increased penalties fourfold for violations in which an operator demonstrated an extremely high level of negligence
approaching willfulness in failing to eliminate a known violation that proximately and
substantially caused death or serious bodily injury or created a reasonable expectation of
proximately and substantially causing death or serious bodily injury. The flagrant violation,
therefore, is a wholly new category of violation.

43 FMSHRC Page 13

As enacted, the Mine Act did not contain the word “reckless.” The MINER Act inserted
the term “reckless” in two provisions. The first is the new flagrant section at 110(b)(2). The
second is in section 116(a).10
The purpose of section 116(a) is to provide protection against liability for persons
carrying out activities responding to mine accident rescue or recovery operations. However, the
section explicitly exempts any action “that is alleged to result in the property damages or injury
(or death) was the result of gross negligence, reckless conduct, or illegal conduct.” 30 U.S.C. §
826(a) (emphasis added).11
In the MINER Act, therefore, Congress identified three levels of misconduct – gross
neglect, reckless conduct, and illegal conduct. Congress classified recklessness as misconduct
beyond gross negligence and bordering upon illegal conduct. This not only confirms that
recklessness is substantially higher than ordinary negligence, but that the term “reckless” for
MINER Act purposes stretches into the fringe, or actually reaches willfulness when applied to a
flagrant analysis.
Congress’ use of the term “flagrant” gives flavor and context to section 110(b)(2).12 In
American Coal, 38 FMSHRC at 2069-70, we found that a “flagrant” violation falls far outside
the bounds of “ordinary” negligence. Congress enacted a distinct category of “flagrant”
violations for violations of which the operator has actual knowledge but recklessly fails to
eliminate the violation despite a reasonable expectation that it will be a substantial and proximate
cause of death or serious bodily injury. The violation is a conspicuously offensive violation that
flouts the Mine Act. In short, the acid test for flagrant violations is whether the conduct flouts the
salutary purposes of the Mine Act by disregarding the safety of the miners.
10

Section 116(a) states the following:

No person shall bring an action against any covered individual or his or her regular employer for
property damage or an injury (or death) sustained as a result of carrying out activities relating to
mine accident rescue or recovery operations. This subsection shall not apply where the action
that is alleged to result in the property damages or injury (or death) was the result of gross
negligence, reckless conduct, or illegal conduct or, where the regular employer (as such term is
used in this Act) is the operator of the mine at which the rescue activity takes place. Nothing in
this section shall be construed to preempt State workers’ compensation laws.
30 U.S.C. § 826(a).
11

Section 116 is the only section of the Mine Act that contains the term “gross
negligence.”
12

Webster’s Unabridged Dictionary describes the etymology and definition of flagrant as
“flagrans, -antis, p. pr. of flagrate, to burn. https://www.merriamwebster.com/dictionary/flagrant?src=search-dict-box. This definition accords with the common
dictionary definitions. Merriam-Webster’s Dictionary defines flagrant as “1: conspicuously
offensive flagrant errors especially so obviously inconsistent with what is right or proper as to
appear to be a flouting of law or morality.” Id.

43 FMSHRC Page 14

Finally, section 110(b) contains prerequisites for a finding of flagrancy that go
substantially beyond the attributes of an unwarrantable failure or a significant and substantial
violation. Particularly, the operator must fail to eliminate a “known” violation. The violation
must cause or reasonably be expected to substantially and proximately cause death or serious
bodily injury. The express statutory requirement for a reasonable “expectation” of “serious
bodily injury” substantially exceeds the “reasonably likely” standard utilized at step three of
Mathies, Newtown Energy, Inc., and Peabody Midwest Mining, LLC. That “expectation”
standard also far exceeds the fourth step of the same S&S test (that requires a reasonable
likelihood of a “reasonably serious injury.”). Id. A flagrant violation is not a significant and
substantial violation or unwarrantable failure writ large; it is a uniquely unconscionable failure. It
is clearly a uniquely wrongful violation.
2. The Plain Meaning of the Flagrant Section
In increasing the maximum penalties, Congress dealt with two of the six penalty
factors expressed in the Mine Act – negligence and gravity. With regard to a flagrant
charge, these two factors must be viewed from the extreme extent in that the required
level of negligence approaches illegal or willful acts and the level of gravity must be
death or a reasonable expectation of death or serious bodily injury. It is essential to break
down the meaning of each phrase in section 110(b)(2).
a. “Reckless”
The term “reckless” has been defined in numerous reference sources.13 The Restatement
(Third) of Torts captures the best applicability of that term to a flagrant charge by stating “[a]
person acts recklessly in engaging in conduct if”:
(a) the person knows of the risk of harm created by the conduct or
knows facts that make the risk obvious to another in the person’s
situation, and

13

The New Oxford American Dictionary defines “reckless” as acting “without thinking
or caring about the consequences of an action.” The New Oxford American Dictionary 1414 (2d
ed. 2005). Black’s Law Dictionary defines “reckless” as conduct “[c]haracterized by the creation
of a substantial and unjustifiable risk of harm to others and by a conscious (and sometimes
deliberate) disregard for or indifference to that risk; heedless; rash. Reckless conduct is much
more than mere negligence: it is a gross deviation from what a reasonable person would do.”
Black’s Law Dictionary (11th ed. 2019). And as a modifier to “flagrant,” the gross deviation
must be “intolerable, glaringly obvious, or notorious.” Id. The Cambridge Dictionary defines it
as “doing something dangerous and not worrying about the results.” Cambridge Dictionary,
https://dictionary.cambridge.org/us/dictionary/english/reckless (last visited Jan. 12, 2021).
Indeed, the website dictionary.law.com defines reckless disregard as “gross negligence without
concern for danger to others.” Legal Dictionary, dictionary.law.com (last accessed Jan. 12,
2021).

43 FMSHRC Page 15

(b) the precaution that would eliminate or reduce the risk involves
burdens that are so slight relative to the magnitude of the risk as to
render the person’s failure to adopt the precaution a demonstration
of the person’s indifference to the risk.14
Restatement (Third) of Torts § 2 (Am. Law Inst. 2010).
An operator is “reckless” for the purposes of a “flagrant” violation when it consciously or
deliberately disregards an unjustifiable risk of harm arising from its failure to make reasonable
efforts to eliminate a known violation of a mandatory health or safety standard. Applying the
Restatement (Third) of Torts § 2 to a flagrant charge, the risk of harm is “unjustifiable” if the
burdens of reducing that risk are so slight relative to the risk resulting from the operator’s failure
to eliminate the violation.
The Judge below used the definition of “recklessness” set out by a fellow Administrative
Law Judge in Stillhouse Mining, LLC, 33 FMSHRC 778 (Mar. 2011) (ALJ). There, the Judge
stated recklessness is when an operator “consciously or deliberately disregards an unjustifiable,
reasonably likely risk of death or serious bodily injury.” Id. at 804. We recognize the key part of
this definition is the requirement for a “conscious or deliberate disregard.” However, contrary to
the Judge’s use of the term “reasonably likely,” a flagrant violation applies only to creation of a
reasonable expectation of death or a serious body injury just as the statute clearly states.
30 U.S.C. § 820(b)(2).
The proper standard for a “flagrant” charge is that there must be a conscious or deliberate
disregard for the safety of the miners through a failure to eliminate a violation, of which the
operator has actual knowledge, that proximately and substantially caused death or serious bodily
injury, or is reasonably expected to proximately and substantially cause death or serious bodily
injury.
b. “Known violation”
Use of the term “known” in the context of the four-fold increase in penalties in section
110(b)(2) is consistent only with “actual knowledge.”15 As demonstrated in the discussion of the
background of section 110(b)(2), the provision was aimed at an especially bad actor – that is, an
operator who failed to take steps to eliminate a violation even though he or she knew the
14

The Third Restatement’s comments on the definition of “reckless” state that “Section 2
. . . sets forth a standard for recklessness that is somewhat more restrictive than that included in
the previous § 500 [the applicable Second Restatement section].”
15

Black’s Law Dictionary defines “knowledge” as “[a]n awareness or understanding of a
fact or circumstance; a state of mind in which a person has no substantial doubt about the
existence of a fact.” Black’s Law Dictionary (11th ed. 2019). Black’s then describes the well
understood distinctions between “actual knowledge” (“direct and clear knowledge”) and
“constructive knowledge” (“[k]nowledge that one using reasonable care or diligence should
have”). Id.

43 FMSHRC Page 16

violation existed and would expect it to kill or cause serious bodily injury. Without doubt,
Congress intended to impose those penalties upon an operator who had actual knowledge of such
a violation but deliberately and consciously failed to act – essentially a conscienceless violator.
This intent is consistent with a requirement of actual knowledge. Consequently, a violation is
“known” by the operator when the operator is, in fact, aware of the violation.
c. “Reasonably could have been expected to cause death or serious bodily
injury”
Just as Congress undoubtedly was aware of the factors for unwarrantable failures and
significant and substantial violations in the Mine Act, Congress was surely aware that the
Commission adopted a “reasonably likely” test for S&S violations. Therefore, Congress’ use
of the term “expected” rather than “likely” or even “reasonably likely” is highly significant.16
In considering whether the Secretary has proven a “reasonable expectation” of death or a
“reasonable expectation” of a serious bodily injury, the Judge must first consider whether it is
reasonably “expected” that an identified hazard will occur. If so, the Judge must then determine
whether occurrence of the hazard would be “expected” to cause death or serious bodily injury.
Such evaluation must be made in light of steps, if any, that the operator took to eliminate the
hazard.
An operator’s duty under the Mine Act is to eliminate violations. Actions an operator must take
to eliminate the violation, itself, might not be the same as steps taken to eliminate the hazard
which might lead to death or serious bodily injury. In evaluating the “expectation” element of an
alleged flagrant violation, the Judge must consider the totality of the circumstances related to the
“expectation” of death or serious bodily injury including measures taken to eliminate potential
injuries. While steps taken to abate the likelihood of injury do not satisfy the duty to eliminate
the violation, they are considerations for whether a violation is flagrant. For example, barricading
the ground below the walkway did not eliminate the violation. However, by barring entry to the
area below the walkway, it did eliminate any reasonable expectation that miners would be hit by
perlite falling from above that area.
Section 3(j) of the Mine Act defines an imminent danger as “the existence of any
condition or practice in a coal or other mine which could reasonably be expected to cause death
or serious physical harm before such condition or practice can be abated.” 30 U.S.C. § 802(j).
16

Merriam-Webster defines “expect” to mean “to consider probable or certain.”
Merriam-Webster, https://www.merriam-webster.com/dictionary/expect (last accessed Jan. 12,
2021). The Cambridge Dictionary defines “expect” as “to think or believe something
will happen.” Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/
expect (last accessed Jan. 12, 2021). The Macmillan dictionary also defines the term as
“to think that something will happen.” Macmillan Dictionary, https://www.macmillandictionary.
com/us/dictionary/american/expect (last accessed Jan. 12, 2021). Finally, in accord with the
other dictionaries, Black’s Law Dictionary defines “expectation” as “1. The act of looking
forward; anticipation. 2. A basis on which something is expected to happen.” Black’s Law
Dictionary (11th ed. 2019).

43 FMSHRC Page 17

Notably, therefore, the definition of an imminent danger is identical to the definition of the
physical elements of a flagrant violation except for the use of the word “bodily” in place of
“physical.” Given the identical language, and putting aside the temporal issues involved in an
imminent danger, the expectancy and harm elements of a flagrant violation essentially may be
considered the repeated or reckless failure to eliminate a known violation that is an imminent
danger.
In summary, a reasonable expectation of death or serious bodily injury is not satisfied by
a reasonable possibility or even a reasonable likelihood (as that term is construed in the Mine
Act) that a death or serious bodily injury will happen. Hazards created by the known violation
must be reasonably expected to occur and, in turn, must create a reasonable expectation of death
or serious bodily.
3. The Judge Properly Found the Violation Was Not “Reckless” Within the
Meaning of section 110(b)(2).
Relying upon the Commission decision in American Coal , the Judge identified the
following elements of a flagrant violation:
(1) there was a condition that constituted a violation of a
mandatory health or safety standard[;] (2) the violation was
“known” by the operator; (3) the violation either (a) substantially
caused death or serious bodily injury, or (b) reasonably could have
been expected to cause death or serious bodily injury; (4) there was
a failure on the part of the operator to make reasonable efforts to
eliminate the violation; and (5) that failure was either “reckless” or
“repeated.”
41 FMSHRC at 67, citing 38 FMSHRC at 2066-67.17
Consistent with the proper definition of “reckless” as set forth supra, the Judge explored
whether Northshore consciously or deliberately disregarded an expected risk of death or serious
bodily injury. Based upon this analysis, the Judge ruled:
Respondent could have repaired the walkway but the mine chose to
use fall protection as a solution. Given that decision, there is no
evidence to suggest a conscious or deliberate indifference to the
risks on the part of the mine. Instead, the evidence indicates that
the mine was limited at best in its evaluation of the risks. In other
words, rather than ignoring the problem, the mine did not fully
consider the appropriate steps to take to mitigate the risk posed by
the condition of the walkways. . . . Therefore, I find that the
violation of section 56.11002 cited in Order No. 8897220 is not
17

Preferably, the Judge would have inserted the statutory term “and proximately” after
“substantially.”

43 FMSHRC Page 18

flagrant within the meaning of section 110(b)(2) of the Act.
41 FMSHRC at 68-69 (emphasis added).
Substantial evidence supports the Judge’s finding. The record indicates that the operator
implemented the fall protection measures in an attempt to eliminate the safety hazard of miners
falling on the walkways. Tr. 331-33, 427. While fall protection is not the maintenance of the
walkways, it is relevant to determining whether “conscious or deliberate indifference” existed to
a safety issue in a flagrant analysis.
Here, the operator had reached out to the engineering company, KOA, to learn about the
condition of the walkway. S. Ex. 12. It did not ignore the condition of the walkway reported
internally and in the KOA report. If an operator is acting with “conscious or deliberate
indifference” to an issue, it does not spend time and money hiring someone to tell it about the
problem, discussing the issues with the consultants, and taking safety measures in an effort to
mitigate the hazard.
Moreover, once the operator received the KOA report from Leow, it did not attempt to
bury or hide the evidence in the report. Such an act would be in line with the “conscious or
deliberate indifference” of a “bad actor” that Congress intended to address with this statute.
Rather, Engineering Manager Scamehorn shared the report with the other section managers at the
mine, i.e., Zimmer and Peterson. Tr. 327. Scamehorn then followed up with Leow to get
clarification on some of the report’s recommendations. Tr. 326-30. The report recommended
prohibiting the use of heavy equipment on the center walkway, and there is no evidence that the
operator had failed to adhere to this. S. Ex. 12. The report also recommended restricting access to
the outer walkways and there is no evidence rebutting the operator’s testimony that it did, in fact,
tell miners to avoid using the outer walkways and to use fall protection when they were required
to perform work on the outer walkway.18 Id.
The operator conducted numerous safety meetings with its miners in which the condition
of the walkways was discussed. Tr. 109, 118, 123, 208, 428. In doing belt maintenance, typically
replacing rollers, the miners did not traverse the outer walkway. They climbed over the stopped
conveyor and, then while wearing fall protection, did the necessary work at a stationary
position.19
All of these facts in the record were reviewed by the Judge, and they support the finding
that the operator did not “consciously or deliberately disregard” the risk of death or serious
bodily injury posed by miners falling through the walkway floor, nor did it deliberately shirk
18

As noted supra, crew members were instructed on how to put the safety harnesses on
and how to tie off with the lanyard from the harness. The crew was instructed to tie off the entire
time, and to affix lanyards in sequence as each miner descended the walkway. Tr. 485, 486-87.
19

The evidence does not suggest that any expert witness would find the weight of one
miner would have caused the steel structure to break, thereby creating the horizontal movement
causing a portion of the walkway to dislocate.

43 FMSHRC Page 19

responsibility to work to eliminate the hazard. 41 FMSHRC at 68. Such actions did not vitiate
the violation but they did show a substantial concern for safety. Essentially, the Judge found that
Northshore did not “flout” the Mine Act. Substantial evidence supports the Judge’s conclusion
that the Secretary failed to demonstrate “recklessness” for purposes of proving a “flagrant”
violation, under section 110(b)(2).
4. Substantial Evidence Does Not Support the Finding that the Violation
Was Reasonably Expected to Cause Death or Serious Bodily Injury.
The Judge described three types of hazards: (1) falling near a moving conveyor, (2)
material falling to the ground below and causing uncertain footing, and (3) the danger of the
walkway giving away. 41 FMSHRC at 61. Separately, the Judge found the condition of the
walkway was the primary cause of the dislocation, and Superfesky testified that a fall, even with
the use of fall protection, created a risk of a loss of a limb or other serious injury. Tr. 262.
For purposes of the flagrant violation, therefore, the first relevant question is whether the
violation was reasonably expected to result in any of the hazards described by the Judge. Here,
the most serious hazard suggested by the Secretary was the possibility of a miner falling through
a hole in the walkway. 41 FMSHRC at 62.
Although the Judge found hazards included slipping, tripping, and falling on the walkway, the
danger of falling through a hole in the walkway is by far the most serious. A fundamental issue
in the flagrant analysis in this case, therefore, must be whether Northshore should have
reasonably expected that the violation would result in a hole in the walkway through which a
miner would be reasonably expected to fall. We must also consider whether the violation created
an expectation of the other identified hazards of slipping, tripping, and falling within the
walkway structure.
If either of those questions is answered affirmatively, the Judge needed to resolve
separately whether the occurrence of the hazard would be reasonably expected to result in death
or serious bodily injury. Also, recognizing Northshore required the use of fall protection, there is
the additional issue of whether that requirement for fall protection would mitigate a reasonable
expectation of serious bodily injury.
a. There is no substantial evidence proving the surface condition of the
walkway caused, or was reasonably expected to cause, the failure of the
diagonal beam and dislocation of the gallery walkway or any hazardous
event such as falling through a hole.
The Judge accepted Superfesky’s testimony that the surface condition of the walkway
was the primary reason for the dislocation of the walkway. 41 FMSHRC at 58. However, no
substantial analysis or consideration was given to the dislocation cause or whether it was

43 FMSHRC Page 20

expected, as required by the statute. To the contrary, there is substantial evidence that there was
no expectation of dislocation based upon the observable surface condition of the walkway.20
Superfesky erred in many important respects. He did not take any samples of the material or
conduct any scientific analysis of the cause of the steel beam failure and the resultant dislocation
of the walkway. He spent his entire physical investigation below the walkway, never examining
the scene of the dislocation from above. His testimony suggests he erroneously thought the
perlite panels were the primary support for the walkway(s) and his testimony regarding
debonding applied to the perlite panels rather than the reinforced concrete layer.
Tr. 261, 144. In fact, the evidence shows that the perlite panels were primarily only forms for
placement of the concrete walkway. Tr. 399, 532-34, 549.
Superfesky did not know the concrete was reinforced with a steel mesh and he did not know the
wire mesh was attached to the steel. Tr. 288-89. Very significantly, wire mesh covered the
opening near where King was standing at the time of the beam failure. Tr. 280-81,
S. Ex. 7 at 23 (picture 921).
Superfesky did not calculate the force of the event when the diagonal beam failed. Tr. 299. The
fracture of the beam resulted from the unusual weight of the large volume of taconite pellets
being progressively washed down the walkway. Tr. 530-532. Thus, spalled or cracked concrete
or delamination did not initiate the beam failure and the resultant dislocation of the walkway.
Most importantly, Superfesky agreed with Northshore’s experts that the immediate cause of the
dislocation was the break from the unknown crack covered by the gusset plate that was part of
the steel structure rather than the walkway. Tr. 284-289. Having conceded that the break in the
steel structure initiated the dislocation, Superfesky simply asserted, without any persuasive
explanation, that if the walkway had been in good condition, it would not have dislocated.
Basically, he accepted that the breaking of the rivets would have applied a great torsion upon the
walkway that was heavily laden with taconite and mud, and that the rotation resulting from the
broken beam would have moved the walkway.
Superfesky continued to assert, without any support, that the movement would have been
insufficient to cause the dislocation. He did not explain why or how the concrete slab would have
stayed intact if a failure of the walkway concrete slab caused the dislocation. Indeed, he was not
even aware that large portions of the slab remained intact. The sustained strength of the slab
undercuts a notion that the walkway itself caused the dislocation. Tr. 399, 532-33. Superfesky’s
testimony, therefore, remains unsupported, unexplained, and does not support a finding that
Northshore should have expected a dislocation of the walkway.

20

Obviously, wholly unexpected accidents can cause fatalities and serious bodily
injuries. Standing alone, therefore, the occurrence of an event does not compel a conclusion that
the event was reasonably expected by observation. See Asarco, Inc., 14 FMSHRC 941, 946 (June
1992) (“Neither the presence of loose materials, nor the fact that the roof fell, by themselves,
indicate that the area was not properly examined.”)

43 FMSHRC Page 21

On the other hand, Northshore’s experts, metallurgist Osmundson, who worked with an
outside laboratory testing the steel, and civil engineer Franseen, provided detailed testimony and
test evidence of the causes of the dislocation. They testified without challenge that due to the
weight of the taconite pellets, the steel structure holding the steel support failed and applied very
significant torsion force to the structure including the walkway. Tr. 505, 528-32. The walkway
simply could not withstand that tremendous force and, consequently, rivets snapped causing an
outward movement of the walkway. Tr. 283-84, 535.
Based upon his experience and testing of the steel support of the structure, Osmundson
testified that “steel is what holds everything up” (Tr. 498) and that the condition of the walkway
had nothing to do with the collapse. Tr. 505-506. The reports by Northshore’s expert civil
engineer and metallurgist demonstrate that the walkway did not fail but, in fact, remained
substantially intact despite the force of the deflection of the steel superstructure.21
In summary, all of the expert testimony demonstrates that substantial evidence does not
support the contention that the condition of the walkway caused the dislocation. The Secretary
did not present any evidence that Northshore should have expected a dislocation, in any event.
Thus, the Secretary’s case, premised upon his conjecture of the dislocation, fails at the first stage
of analysis. The Secretary did not prove that the walkway was reasonably expected to dislocate.
b. The evidence does not show that the condition of the walkway, taking into
account fall protection, was reasonably expected to cause reasonably
serious bodily injuries to miners.
The failure of Superfesky’s testimony to support an expectation of a dislocation, or
failure of the walkway due to its condition, does not mean that there was no expectation of the
hazards of a slip, trip, or fall. Given the condition of the walkway as described in the KOA
report, there is ample evidence that persons walking on the walkway reasonably could be
expected to slip, trip, or fall. Therefore, the facts demonstrate the Secretary proved a reasonable
expectation of the occurrence of a slipping hazard by the condition of the walkway. Indeed,
Northshore must agree with this premise lest it would not have instituted fall protection.
We must turn, therefore, to the second step of analysis: Whether such hazards in the
context of the totality of the circumstances created a reasonable expectation of serious bodily
injury. An expectation that the miners would slip or trip while not wearing fall protection
responds to the element of showing a reasonable expectation of the occurrence of the hazard due
to the condition of the walkway. It does not resolve the next step, however, namely, of whether a
reasonable expectation exists that a slip, trip, or fall on the walkway would result in death or a
serious bodily injury.
In using the term serious bodily injuries, Congress selected terminology that appears
frequently in federal law. Appearing often in the criminal code at Title 18 as well as elsewhere
21

Franseen testified that the weight of the pellets was evidence of the strength of the
walkway. The walkway sustained the weight of the taconite on it. In turn, it was that weight on
the walkway holding the taconite that caused the failure of the steel beam while the concrete
walkway remained largely intact. Tr. 536, 539.

43 FMSHRC Page 22

in throughout the Code, the term “serious bodily injury” is typically defined as an injury:
i) involving extreme physical pain; (ii) involving substantial risk of death; (iii) involving
protracted loss or impairment of the function of a bodily member, organ, or mental faculty; or
(iv) requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.
See 18 USC 1365(h)(2); 42 USC 1397j; 42 USC 5928. However, the same or similar definition
appears elsewhere in the Code. 42 U.S.C. § 1397j; 42 U.S.C. § 6928(f)(6).
With regard for the expectation of slipping or falling, the Judge principally relied upon
evidence that the contract employees did not always use the fall protection but would unhook to
move from station to station along the walkway and to return up the walkway. Testimony
supports that finding. Tr. 51, 54-55, 57, 109-10, 116-117, 119-21, 194-96. We must accept,
therefore, that Northshore should have reasonably expected that miners would not uniformly use
the fall protection. Given that presumption, the final question is whether Northshore should have
reasonably expected a miner would slip without wearing fall protection and suffer serious bodily
injuries.
No witness presented any testimony on the likely nature of fall injuries under these conditions.
Superfesky testified that very serious injuries such as the loss of a limb may result from use of
fall protection; however, that testimony was given in the context of a fall from or through the
walkway. Tr. 262-63. As noted supra, wire mesh covered the opening near where King was
standing at the time of the beam failure. Tr. 280-81; S. Ex. 7 at 23 (picture 921). Moreover, King
testified that he was wearing fall protection when he saw the hole immediately in front of him
with wire mesh intact in the floor. Tr. 59. As such, the Secretary’s proffered evidence is not
given in terms of an expectation but rather, implicitly, in terms of possibilities. Given MSHA’s
reliance upon fall protection throughout the mandatory standards, it would be difficult to find
that MSHA “expects” a miner using fall protection to lose his life or a limb.
Again, crucial to this analysis is an evidentiary finding of the expectation of death or serious
bodily injury. The Judge does not find or suggest this type of consequence from a fall on the
surface of the walkway. Moreover, the Judge did not find that a miner wearing fall protection
would suffer a serious bodily injury from slipping or tripping on the walkway. Accordingly,
there is virtually no evidence as to the type or severity of expected injuries from falling onto the
taconite pellets and mud in the walkway.
The Judge accepted MSHA’s testimony that use of fall protection could result in the loss of a
limb. However, that testimony occurs in the context of fall through a hole and, in any event, is
not framed in any terms as being a likely result of use of fall protection. If such injuries were
“expected” to result from use of fall protection, it would cast a pall on MSHA’s ubiquitous
allowance of fall protection throughout the mandatory safety standards. As with the issue of the
reasonable expectation of a dislocation of the walkway, the Judge merely assumed any injury
resulting from occurrence of the hazard of slipping or falling in the walkway would be death or
serious bodily injury.
We do not diminish the hazard of slipping or falling on a rough, uneven walkway.
Further, as seen below, we do not condone Northshore’s failure to repair the walkway for over a
year. However, the Secretary must prove each and every element of a violation. When the

43 FMSHRC Page 23

Secretary seeks to enforce a flagrant violation, it cannot be by conjecture. The Secretary must
prove by a preponderance of the evidence that the posited hazard is expected to occur and that
the occurrence of such hazard is expected to cause serious bodily injury. Here, it appears the
Secretary essentially relied upon the occurrence of dislocation as homemade res ipsa loquitur for
the expectation of hazards and the expectation of serious bodily injury. The failure to produce
evidence of the types of injuries expected to result from a slip or fall on the walkway must result
in a dismissal of the flagrant charge.
In summary, Congress’ use of the terms “reasonably expected” and “serious bodily
injury” indicate Congress clearly and plainly required an expectation for the occurrence of a
hazard and an expectation that the occurrence would result in death or serious bodily injury. The
Secretary did not present evidence of such an expectation and the Judge found, on the basis of
substantial evidence, that the operator did not disregard an expectation that a slip on the walkway
would cause death or a serious bodily injury. Thus, the Judge found, on the basis of substantial
evidence, that the Secretary failed to provide sufficient evidence to prove proof that this case met
the “reasonably expected to cause” requirement for a flagrant violation.
5. The Dissent Misconstrues the “Flagrant” Analysis
Arguing against the Judge’s substantial evidence-based finding that the operator’s actions did
not meet the standard of recklessness for a flagrant violation, our dissenting colleague sets up a
classic straw man by asserting that we have made “intention” an element of a flagrant violation.
That is not our holding. We have accepted the Judge’s analysis that the Secretary did not show
the operator believed there was reasonable expectation of death or serious bodily injury from
continuing work while wearing safety lines. Thus, the Judge found the operator did not
consciously – that is, recklessly – disregard a danger of an expectation of death or serious bodily
injury. That standard is, of course, significantly higher than the negligence standard of
reasonable likelihood for non-flagrant penalties. Consequently, our finding in this case aligns
fully with the graduated enforcement scheme of the Mine Act as established by Congress.22
We accept the Judge’s conclusion as supported by substantial evidence. As noted, our
colleague, however, goes on, at slip op. at 40-42, and elsewhere, to claim that our interpretation
construes the flagrant provision to apply only to deliberate attempts to cause death or serious
bodily injury. That is certainly neither our holding nor suggested by our holding. Our holding is
that the Judge cited substantial evidence to support the conclusion that the operator did not
consciously disregard a reasonable expectation that miners wearing safety belts would be killed
or suffer serious bodily injury – the plain statutory requirement for a flagrant violation.
Indeed, rather than examining the elements of a flagrant violation in terms of section
110(b)(2), our dissenting colleague plucks the term “reckless disregard” from cases where
22

Moreover, the maximum penalty for a flagrant violation is indexed to account for
inflation. As of this year, the maximum flagrant penalty is nearly $271,000. 85 Fed. Reg. 2292,
2299 (Jan. 15, 2020) (annual amendment of 30 C.F.R. § 100.5(e)). Thus, as far as the monetary
penalty that can be imposed, flagrant violations are now subject to a higher maximum monetary
penalty than can be imposed upon first time criminal offenders under section 110(d) of the Mine
Act, 30 U.S.C. §820(d), and it will be increasingly higher in each future year.

43 FMSHRC Page 24

defendants are charged for criminal violations of the Act under section 110(d), 30 U.S.C. §
820(d), addressing the commission of “willful” acts. Slip op. at 39-40. Our colleague argues that
our interpretation of the flagrant provision will result in a higher evidentiary standard for flagrant
violations than for criminal violations. Id. That is clearly incorrect. A plain reading of section
110(d) demonstrates that it is clearly a criminal statute aimed at punishment rather than
deterrence and, therefore, requires proof beyond a reasonable doubt. That criminal provision of
the Mine Act is completely different from section 110(b)(2) which requires only proof by a
preponderance of the evidence. Thus, the evidentiary standard for a criminal violation far
exceeds that for a section 110(b)(2) flagrant violation.
Inclusion of reckless disregard within the scope of willfulness in criminal statutes aimed at
persistent violations of federal law and repeated warning does not suggest the obverse – that
“reckless” in a civil penalty statute requires an intent or willfulness to harm – and we do not
make such a finding. As we hold, the term “reckless” in section 110(b) goes to an expectation of
death or serious bodily injury and a conscious disregard of that expectation. The Judge’s
finding is supported by the evidence and must be affirmed.
D. Substantial Evidence Supports the Judge’s Finding that the Operator’s Violation
of 30 C.F.R. § 56.11002 Resulted From an Unwarrantable Failure and Reckless
Disregard.
1. The Record Supports the Judge’s Finding of Unwarrantable Failure.
Again, we reiterate that the Mine Act’s overarching enforcement scheme provides
“increasingly severe sanctions for increasingly serious violations or operator behavior” as noted
in Emery Mining, 9 FMSHRC at 2000, and Cement Div., Nat'l Gypsum Co., 3 FMSHRC at 828.
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d). The Commission has explained that unwarrantable failure is “aggravated conduct
constituting more than ordinary negligence. [It] is characterized by such conduct as reckless
disregard, intentional misconduct, indifference, or a serious lack of reasonable care.”
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2007) (“Consol”) (citing Emery, 9
FMSHRC at 2002) (internal quotations omitted). It is a separate and distinct charge from the
flagrant provision in the Mine Act which expressly levies the most severe sanctions for
especially wrongful misconduct.
In determining whether a violation is an unwarrantable failure, the Commission has
instructed its Judges to consider all of the relevant facts and circumstances in the case and to
determine whether there are any aggravating or mitigating factors. Id. Aggravating factors to be
considered include the length of time that the violation has existed, the extent of the violative
condition, whether the operator has been placed on notice that greater efforts were necessary for
compliance, the operator’s efforts in abating the violative condition, whether the violation was
obvious or posed a high degree of danger, and the operator’s knowledge of the existence of the
violation. IO Coal, 31 FMSHRC at 1350-51; see also Consol, 22 FMSHRC at 353.
Substantial evidence supports the Judge’s finding that the clear weight of such analysis,
here, demonstrates an unwarrantable failure:

43 FMSHRC Page 25

•

The violation had existed “at least from the time in June 2015 when the KOA report had
been completed” until “the time of the accident in September 2016.” 41 FMSHRC at 64;
Tr. 364-65; S. Ex. 12.

•

The physical extent of the violation “included the entire 300 feet on the east outer
walkway, as well as the west outer walkway.” 41 FMSHRC at 64; Tr. 239.

•

The KOA report clearly notified Northshore of the insufficiencies of the walkway long
before the dislocation. Thus, Northshore “was put on notice of the defective walkway
through . . . KOA engineering report in June 2015.” 41 FMSHRC at 64-65; Tr. 61, 33637; 364-65; S. Exs. 12, 18.

•

The evidence does not reveal any attempt by the operator to repair the surface of the
walkway. Rather than dealing with the unsatisfactory condition of the walkway, the
operator dealt with danger. The Judge found “no effort was made to address the
deteriorating walkway itself” because “use of fall protection . . . does not correct the
condition.” 41 FMSHRC at 65; Tr. 147, 149-50.

•

Regarding whether the violation posed a high degree of danger, the Judge found the
violation created the hazard of “falling through the walkway,” which is a “serious safety
hazard and thus a high degree of danger.” 41 FMSHRC at 65; Tr. 202. As noted supra,
there is no substantial evidence supporting a conclusion that the condition of the walkway
caused the event on the day of dislocation or that there was a danger of falling through
the walkway due to the existence of the wire mesh. The danger of falling in a narrow
walkway while walking on taconite, on the other hand, cannot be discounted.

•

The deficiencies in the walkway were obvious. Also, the expert consultants provided a
written report explaining the deficiencies. 41 FMSHRC at 66; Tr. 61, 336-37; S. Ex. 12.

•

Finally, regarding the operator’s knowledge of the violation, once again, “the engineering
report made it clear that the walkway was not safe for use.” 41 FMSHRC at 66; Tr. 36465, S. Ex. 12.

Based upon this analysis, substantial evidence supports the Judge’s finding of an
unwarrantable failure.

43 FMSHRC Page 26

2. The Record Supports the Judge’s Finding of Reckless Disregard.
First, we must again draw a distinction between the analysis for “reckless disregard” and
the distinct analysis noted supra regarding “reckless failure” as it applies to a flagrant charge.
They are two distinct analyses.
Conscious or deliberate action or inaction that consciously disregards or shows no
concern for danger is a uniform element of reckless disregard.23 After notice and comment
rulemaking, MSHA defined “reckless disregard” as occurring when an “operator display[s]
conduct which exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d).
Notably, therefore, the Secretary’s definition of reckless disregard, for which we show respect
but not total obeisance, is similar to stating that an operator engages in reckless disregard when it
consciously disregards the danger of its actions.
Most importantly, we have applied the conscious disregard of serious danger as the
touchstone of the phrase “reckless disregard” in our cases. We stressed the importance of an
operator’s intentional disregard as the key element of “reckless disregard.” We have found
reckless disregard exists in “situations where an operator knows or has reason to know of facts
which create a high degree of risk of physical harm, and deliberately proceeds to act, or fails to
act, in conscious disregard of, or indifference to, that risk.” Lehigh Anthracite Coal, LLC, 40
FMSHRC 273, 280 (Apr. 2018).
It is clear that the outer walkway was not maintained in accordance with the requirement
of section 56.11002 that “elevated walkways . . . shall be of substantial construction . . . and
maintained in good condition.” 30 C.F.R. § 56.11002. Of particular importance in this case,
Northshore permitted the violation and, hence, hazards to exist for an extended period of time.
Northshore received the KOA report in June 2015. That report identified many problems
with the surface of the walkway and stated that the walkways were “not safe for personnel to be
using until a repair has been completed.” S. Ex. 12 at 2. Nonetheless, although taking actions to
mitigate danger, Northshore did not take any action to abate the violation prior to the accident in
September 2016. Therefore, even as we accept the Judge’s finding that the Northshore exercised
a degree of care, did not ignore the violative conditions of the walkway, and sought to provide
protection, such conduct does not mitigate allowing a violation of a mandatory of which
Northshore was specifically aware to continue unabated for fifteen months.
We reject Northshore’s argument that the Judge erred by relying solely on the KOA
report “despite its ambiguity” and Leow’s “clarifying” statements made at hearing. Resp. Br. at
16-17. Northshore claims that its actions “must be viewed in light of what they were told by . . .
23

Black’s Law Dictionary defines “reckless disregard” as, “1. Conscious indifference to
the consequences of an act. . . . 3. The intentional commission of a harmful act or failure to do a
required act when the actor knows or has reason to know of facts that would lead a reasonable
person to realize that the actor's conduct both creates an unreasonable risk of harm to someone
and involves a high degree of probability that substantial harm will result.” Black’s Law
Dictionary (11th ed. 2019).

43 FMSHRC Page 27

Leow,” namely, that a recommendation for “restricted” access was not an outright prohibition on
access, and that the Judge erred by discrediting Leow’s testimony. Id. We disagree. The issue is
whether substantial evidence supports the Judge’s conclusion that the KOA report put the
operator on notice that the outer walkways were unsafe and therefore a serious violation of a
mandatory safety standard.
We find that it does. The report plainly concluded that the walkways “are not safe for
personnel to be using until a repair has been completed.” S. Ex. 12 at 2 (emphasis added).24
While Northshore deemed fall protection adequate protection against the hazards it believed
arose from the condition of the walkway, it did not address the underlying violation. Therefore,
Northshore disregarded the existence of the violation to the extent that it failed to deal with the
violation in a remotely timely manner.
Thus, in this case, we accept the Judge’s finding of reckless disregard with respect to not
abating the violation.25 Northshore’s failure to deal with the walkway violation for fifteen
months permits the Judge’s finding of reckless disregard of the underlying violation to stand
affirmed.

24

We further hold that it was within the Judge’s purview to credit the report and not
credit Leow’s contradictory testimony. “A [J]udge’s credibility determinations are entitled to
great weight and may not be overturned lightly.” Consolidation Coal Co., 20 FMSHRC 315, 319
(Apr. 1998). Leow’s testimony conflicts with his report’s conclusions that the walkway was not
structurally sound or safe for use. S. Ex. 12, at 2. The Judge was there to observe the witness –
we were not. The Judge’s credibility determination against Leow was reasonable given the clear
tension between the plain language of the report and Leow’s testimony. See, e.g., Morgan v.
Arch of Illinois, 21 FMSHRC 1381, 1391 (Dec. 1999) (“Before a [J]udge credits any testimony,
[s]he must reconcile all record evidence that is inconsistent with that conclusion.”).
25

In considering the flagrant charge, however, the Judge stated, “[g]iven that decision [to
use fall protection], there is no evidence to suggest a conscious or deliberate indifference to the
risks on the part of the mine.” 41 FMSHRC at 68. This statement made in regard to the flagrant
analysis would seem at odds with a finding of “reckless disregard” from a negligence standpoint.
However, the additional factors found by the Judge, noted supra, support our affirmance of the
Judge’s finding of negligence with respect to the violation.

43 FMSHRC Page 28

IV.
Conclusion
For the reasons stated above, we affirm the Judge’s findings of “reckless disregard” and
unwarrantable failure for the violations of 30 C.F.R. § 56.11002 and 30 C.F.R. § 56.20011. We
also affirm the Judge’s findings that the violation was not flagrant in violation of section
110(b)(2). We reverse the Judge’s assessments of the individual penalties against Zimmer and
Peterson under section 110(c) of the Act and vacate the assessments.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

43 FMSHRC Page 29

Commissioner Traynor, concurring in part and dissenting in part:
I.
Introduction
When Northshore Mining Company managers became aware that a conveyor walkway
50 feet off the ground had deteriorated, they ordered an engineering report to assess the situation.
They then proceeded to ignore the report’s recommendations and continued to assign miners to
work on the walkway. Subsequently, when a miner was working on the walkway it collapsed,
and he was hit with falling debris. The miner suffered injuries but survived.
I join the majority in affirming the Judge’s conclusion that both violations1 were due to
negligence that amounted to a “reckless disregard” and that Northshore’s actions were an
“unwarrantable failure” to comply with the safety standard.2 I dissent from my colleague’s
conclusion that Northshore’s failure to maintain the walkway in good condition in violation of
section 56.11002 was not “flagrant” within the meaning of section 110(b)(2).
More specifically, as I will explain, I dissent from my colleagues’ interpretation of the
“reckless flagrant” provision in section 110(b)(2) as applied in this case. Specifically, the
Secretary sought review of the Judge’s interpretation of the term “reckless” in section 110(b)(2).
My colleagues would require the Secretary to produce evidence of the mental state that
motivated the operator’s failure to take reasonable steps to maintain the walkway in safe
condition – specifically, evidence that the operator’s failure to eliminate the violation was done
with a “conscious” or “deliberate” expectation of death or bodily injury, rather than simply a
“reckless” disregard for such danger. My colleagues thus ignore the plain meaning of section
110(b)(2); Congress could not have intended that the increased civil penalties for flagrant
violations3 are only available in cases involving conduct so bad it would amount to homicide.

1

The operator was charged with a violation of 30 C.F.R. § 56.11002, which provides that
“[c]rossovers, elevated walkways, elevated ramps, and stairways shall be of substantial
construction provided with handrails, and maintained in good condition. . . . .” It was also
charged with violating 30 C.F.R. § 56.20011 for failing to barricade the walkway or post
warning signs.
2

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30
U.S.C.§ 814(d). The Commission has explained that unwarrantable failure is “aggravated
conduct constituting more than ordinary negligence. [It] is characterized by conduct described as
‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable
care.’” Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) (citing Emery Mining Corp.,
9 FMSHRC 1997, 2001-04 (Dec. 1987)) (citations omitted).
3

Currently the maximum penalty for a non-flagrant violation is $73,901, 30 U.S.C. §
820(a)(1), compared to a maximum of $270,972, 30 U.S.C. § 820(b)(2). 85 Fed Reg. 2292 (Jan.
15, 2020).

43 FMSHRC Page 30

Even if the language of section 110 establishing flagrant violations were not clearly
directed at the “reckless” (not intentional) failure to eliminate dangerous violations, the
Secretary’s reasonable interpretation of ambiguous statutory language is entitled to deference. I
would thus reverse the Judge on this issue, concluding that the Secretary establishes a “reckless
flagrant” violation with proof the operator acted with reckless disregard for the danger caused by
its failure to eliminate dangerous violations.
I also dissent from my colleagues’ determination that the operator’s agents were not
individually liable under section 110(c), as I find that the individual supervisors knowingly
carried out the violation.
II.
The Judge’s Ruling That the Violation was Not Flagrant Should be Reversed.
The flagrant provision of the Mine Act was added in 2006, after fatal accidents at three
mines. S. Rep. No. 109-365, at 2 (2006). Section 8(a) of the Mine Improvement and New
Emergency Response (“MINER”) Act amended the penalty section of the Mine Act to create a
“flagrant” violation designation and to provide for the assessment of an enhanced penalty to
deter repeated or reckless failures to eliminate known dangerous violations. Pub. L. No. 109-236,
120 Stat. 498, 500 (2006). In the MINER Act, Congress defined a flagrant violation as:
a reckless or repeated failure to make reasonable efforts to
eliminate a known violation of a mandatory health or safety
standard that substantially and proximately caused, or reasonably
could have been expected to cause, death or serious bodily injury.
30 U.S.C. § 820(b)(2) (emphases supplied).
We have had occasion to interpret and apply the MINER Act’s flagrant provision in a
number of cases issued subsequent to the passage of the MINER Act. In our most recent decision
resolving such a case, we held that:
for a flagrant violation, it must be established that: (1) there was a
condition that constituted a violation of a mandatory health or
safety standard, (2) the violation was “known” by the operator; (3)
the violation either (a) substantially caused death or serious bodily
injury, or (b) reasonably could have been expected to cause death
or serious bodily injury; (4) there was a failure on the part of the
operator to make reasonable efforts to eliminate the violation; and
(5) that failure was either “reckless” or “repeated.”
Am. Coal Co., 38 FMSHRC 2062, 2066-67 (Aug. 2016). That case involved a “repeated
flagrant” allegation – that is, one involving an operator’s “repeated” failure to make reasonable
efforts to eliminate the violation. Here, as a matter of first impression, we are not dealing with

43 FMSHRC Page 31

the allegation of a repeated failure. Rather, we are reviewing the Judge’s application of our
American Coal test in the context of the Secretary’s allegation that such failure was “reckless.”
In the decision on review, “[t]he Judge found all of the [American Coal] criteria for a flagrant
violation existed except Northshore’s conduct was not ‘reckless’ within the meaning of Section
110(b)(2).” Slip op. at 9. The Secretary’s Petition for Discretionary Review listed four
assignments of error for appeal, including that:
(1) The ALJ erred by requiring a higher negligence showing to establish the “reckless
failure” component of a flagrant violation than is required to establish reckless
disregard and unwarrantable failure.
(2) In evaluating the operator’s conduct under a “conscious[] or deliberate[]
disregard” standard, the ALJ impermissibly imposed a scienter requirement for
reckless flagrant violations.
(3) The ALJ erred by determining that the operator’s fall protection policy mitigated
a reckless failure to eliminate the walkway violation.
(4) Even applying the erroneous legal standard the ALJ used, substantial evidence
does not support the ALJ’s finding that the violation was not a “reckless” flagrant.
S. PDR at 1-2. The operator’s Petition for Discretionary Review did not reference the Judge’s
reckless flagrant decision at all. See generally Resp. PDR. Thus, the Judge’s rulings as to
elements (1) to (4) of our American Coal test – including the operator’s knowledge and whether
the violation reasonably could have been expected to cause death or serious bodily injury – are
not at issue on this appeal.4 The precise legal question at issue on appeal concerns only element
(5) and whether a determination that a “reckless flagrant” violation is the product of a “reckless .
. . failure to make reasonable efforts to eliminate a known violation” requires proof of an intent
to cause harm, not simply reckless conduct. 30 U.S.C. § 820(b)(2).
A. Whether the term “reckless” in the Mine Act’s flagrant provision
requires proof of intentional conduct or simply reckless conduct?
Our task in this case is to determine whether the text, structure, purpose and history of
the “reckless flagrant” provision answers the specific question of statutory interpretation at issue:
whether to prove a “reckless flagrant” violation, the Secretary must provide proof that the
operator’s failure to eliminate a known violation was done with conscious or deliberate disregard
for an expectation of death or bodily injury, not merely reckless disregard for such danger.

4

The discussion of these elements in the majority’s opinion, slip op. at 15-25 , are merely
dicta and any decisions purportedly reached on these issues are ultra viries and without
precedential value. Sunbelt Rentals, Inc., 42 FMSHRC 16, 22 (Jan. 2020) (affirming that “if [a
PDR is] granted, review [by the Commissioners] shall be limited to the questions raised by the
petition.” 30 U.S.C. § 823(d)(2)(A)(iii)).

43 FMSHRC Page 32

In considering the question of statutory construction, our first inquiry is “whether
Congress has directly spoken to the precise question at issue.” Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582,
584 (Apr. 1996). If a statute is clear and unambiguous, effect must be given to its language.
See Chevron, 467 U.S. at 842-43; accord Local Union 1261, UMWA, 917 F.2d 42, 44 (D.C. Cir.
1990). In ascertaining the meaning of the statute, courts determine whether Congress had an
intention on the specific question at issue (“Chevron I” analysis). Chevron, 467 U.S. at 842-43;
Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal Emp’t Project v. Dole, 889 F.2d
1127, 1131 (D.C. Cir. 1989). When undertaking the Chevron I analysis, we must not be too
quick to find ambiguity, but must thoroughly “examine the [statute’s] text, structure, purpose,
and legislative history to determine if the Congress has expressed its intent unambiguously.” U.S.
Sugar Corp. v. EPA, 830 F.3d 579, 605 (D.C. Cir. 2016) (per curiam), cert. denied, ___ U.S.___,
137 S. Ct. 2296 (2017). “[I]n interpreting a statute, a court ‘must not be guided by a single
sentence or member of a sentence, but look to the provisions of the whole law, and to its object
and policy.’” Czyzewski v. Jevic Holding Corp., ___ U.S.___, 137 S. Ct. 973, 985 (2017).
If after a thorough Chevron I analysis we find the statute is truly ambiguous or silent on
the precise question at issue, deference is accorded to the interpretation of the agency charged
with administering the provision in question (in this case, the Secretary of Labor), provided that
the interpretation is reasonable (Chevron II analysis). See Chevron, 461 U.S. at 843-44; Energy
West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994). As the D.C. Circuit has stated:
In the statutory scheme of the Mine Act, “the Secretary's litigating
position before [the Commission] is as much an exercise of
delegated lawmaking powers as is the Secretary’s promulgation of
a . . . health and safety standard,” and so is also deserving of
deference. Excel Mining, 334 F.3d [1,] 6 [(D.C. Cir. 2003)
(alterations in original) (quoting RAG Cumberland Res. LP v. Fed.
Mine Safety & Health Review Comm’n, 272 F.3d 590, 596 n. 9
(D.C. Cir. 2001)); cf. Martin v. Occupational Safety & Health
Review Comm’n, 499 U.S. 144, 156–57, 111 S.Ct. 1171, 113
L.Ed.2d 117 (1991) (explaining that the OSH Act’s analogous
allocation of responsibilities requires according Chevron deference
to the Secretary's litigating positions).
Am. Coal Co. v. FMSHRC, 796 F.3d 18, 24 (D.C. Cir. 2015); see also Pattison Sand Co. v.
FMSHRC, 688 F.3d 507, 512 (8th Cir. 2012) (in considering the Secretary’s litigation
interpretation of section 103(k) of the Mine Act, Court states that the Secretary’s interpretations
before the Commission are entitled to Chevron deference if reasonable).
As explained below, an examination of the text, structure, purpose, and legislative history
of the flagrant provision provides a clear and unambiguous answer to the precise question of
whether, as the majority contends, establishing a “reckless flagrant” violation requires proof that
an operator’s failure to eliminate a known safety violation was done with a deliberate purpose or
conscious understanding that such failure is expected to cause serious injury or death; or,
whether as the Secretary contends, Congress’s use of the word “reckless” plainly indicates the

43 FMSHRC Page 33

statute is directed toward penalizing the reckless failure to eliminate known dangerous
violations, even where no proof of the operator’s conscious expectation of serious injury or death
is available.
Thus, I would resolve the case at the first step – Chevron I. Even if I were to find the
statutory language is ambiguous with respect to this question, which it is not, I would defer to the
Secretary’s reasonable interpretation of the language (Chevron II). I would find the Secretary’s
interpretation – the “reckless flagrant” category does not require the Secretary to prove the
operator’s failure to eliminate a known violation was done with a conscious expectation of death
or serious injury, only that it was objectively reckless – to be eminently and obviously reasonable
and therefore entitled to deference.
1. Chevron I Analysis – The Mine Act clearly requires proof of
“reckless” failure to eliminate a known dangerous violation, not
proof of a deliberate or conscious expectation of serious injury or
death.
The Chevron I analysis of the “reckless flagrant” provision to answer the specific
question of whether it requires evidence of intentional conduct begins with the “text, structure,
purpose, and legislative history to determine if the Congress has expressed its intent
unambiguously.” U.S. Sugar Corp., 830 F.3d at 605. The text, structure, purpose, and legislative
history of the Mine Act provision at section 110(b)(2) indicates that proof of negligent conduct
rising to the level of recklessness is necessary to deem a violation a “reckless flagrant,” but not
proof that such failure was the product of the operator’s conscious understanding or deliberate
purpose that such failure is expected to cause serious injury or death.
a. Chevron I – Text
In the text of the “reckless flagrant” provision, we find a clear indication of Congress’s
intent: its choice of the word “reckless” in the statutory text to refer to a “reckless . . . failure,” 30
U.S.C. § 820(b)(2), rather than any of the other adjectives commonly used to require proof of
intent, i.e., conscious, deliberate, knowing, intentional, etc.5

5

The statutory text very clearly does not accommodate what the majority claims is its
own “plain meaning” interpretation – one they maintain is so unambiguously clear that they need
not defer to the Secretary’s reasonable interpretation of a “reckless” failure. The majority
demands proof of “a conscious or deliberate disregard for the safety of the miners through a
failure to eliminate the violation, of which the operator has actual knowledge, that proximately
and substantially caused death or serious bodily injury, or is reasonably expected to proximately
and substantially cause death or serious bodily injury.” Slip op. at 16. Yet, nowhere in the text of
the statute are words referencing a “conscious or deliberate” expectation of serious injury or
death from a failure to meet safety obligations. Nor are there words indicating a violation is only
flagrant if was actually rather than constructively known.

43 FMSHRC Page 34

The majority overlooks a key distinction between the type of intentional conduct
described by words such as “conscious” or “deliberate” and the type of unintentional, though
highly negligent conduct described as “reckless.” Simply put, there is a fundamental difference
between conduct that is intentional and reckless wrongdoing. An intentional wrong is designed to
inflict harm. See Restatement (Second) of Torts § 8A (1965) (finding “intent” where “the actor
desires to cause consequences of his act, or that he believes that the consequences are
substantially certain to result from it.”). A reckless wrong is not. “While an act to be reckless
must be intended by the actor, the actor does not intend to cause the harm which results from it.”
Id., § 500 cmt. f, at 590. In reaching a contrary conclusion – that a “reckless failure” involves a
conscious or deliberate (intentional) expectation of serious harm to miners – the majority is
confused.
The majority blurs the distinction between recklessness and intentional wrongdoing by
overlooking the difference between the mens rea for failing to eliminate a violation and the mens
rea for causing harm with that failure. The majority claims that a “reckless failure” to take
reasonable steps to eliminate a dangerous violation demands proof that the person who so fails
has the deliberate purpose or conscious understanding that such failure is expected to cause
serious injury or death, as compared with proof that an objectively reasonable miner understands
that there is a risk it might do so (the proper standard for recklessness). In the language of mens
rea, the majority is saying that a “reckless flagrant” is really an intentional violation.
When an operator fails to eliminate a violation with a “deliberate” purpose “conscious”
that such failure is expected to cause serious injury or death, he intentionally produces a result.
When a person acts consciously or deliberately – that is, with an expectation that certain
consequences will result – the law imputes to that person the intent to cause those consequences.
As the expectation of such consequences becomes objectively less likely, “the actor’s conduct
loses the character of intent, and becomes mere recklessness.” Restatement (Second) of Torts §
8A cmt. b, at 15. And the distinction between intentional and reckless conduct is key for defining
a “reckless failure” in the context of a flagrant violation. When an operator fails to take steps to
eliminate a known violation with a conscious understanding of an expectation of serious injury
or death, he intends to cause harm. In the case of reckless wrongdoing, however, the injury the
actor has caused (or could be expected to cause) is a byproduct of a failure to take steps to
eliminate a known violation that a reasonable miner could reasonably expect to cause serious
bodily injury or death.
At the time Congress passed the MINER Act in June of 2006, the Restatement (Second)
of Torts, at Section 502 (emphases supplied), defined “reckless disregard of safety” as follows:
“an actor’s conduct is in reckless disregard of the safety of another if he does an act or
intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to
know of facts which would lead a reasonable man to realize, not only that his conduct creates an
unreasonable risk of physical harm to another, but also that such risk is substantially greater than
that which is necessary to make his conduct negligent.”6 At Section 500, the comments to the
6

Then, as now, “reckless” was commonly understood as “without thinking or caring
about the consequences of an action.” The New Oxford American Dictionary 1414 (Erin
(continued…)

43 FMSHRC Page 35

Second Restatement state “recklessness” occurs when an “actor has such knowledge, or reason to
know, of the facts, but does not realize or appreciate the high degree of risk involved, although a
reasonable man in his position would do so.” Restatement (Second) of Torts § 500 cmt. a
(emphasis supplied). Under both formulations, the actor is reckless if a reasonable person would
realize the risk of harm, and not, as the majority contends, only where there is proof the actor had
a “conscious” or “deliberate” expectation of harm.7
At the time Congress passed the MINER Act, the Commission – consistent with the
Restatement of Torts – had interpreted the term “reckless” to apply to situations where the actor
did not intend to cause the harm which could result from the act. See, e.g., Spartan Mining Co.,
30 FMSHRC 699, 719-23 (Aug. 2008) (where mine fan stopped and foreman directed miners to
attempt to repair damaged cable rather than withdraw from working section, Judge properly
characterized foreman’s action as reckless disregard); RAG Cumberland Res. LP, 23 FMSHRC
1241, 1261 (Nov. 2001) (ALJ) (finding recklessness in operator's “failure to suspend production
despite its knowledge of” elevated methane.). This is the MINER Act definition of “reckless”
that informed Congress’s choice to use that word in the flagrant provision, rather than words
such as “intentionally,” “consciously,” or “deliberately.” But the majority asserts, without
authority or good reason, that Congress did not intend this widely accepted use of the term
“reckless” and rather intended a strangely unique definition of “reckless” that covers only
conduct undertaken with a conscious or deliberate expectation of serious injury. In support of
their unusual notion, the majority cites no source of authority – no restatement, no statute, no
case – in which the term “reckless” is interpreted to encompass an exclusively intentional (e.g.
conscious or deliberate) expectation of harm.
We have held – consistent with the definition in both the Second and Third Restatement
of Torts – that recklessness will be found where “the level of negligence did not involve a
6

(…continued)
McKean ed., 2d ed. 2005). As a legal term, “reckless” had been described as conduct-[c]haracterized by the creation of a substantial and unjustifiable risk of harm to others and by a
conscious (and sometimes deliberate) disregard for or indifference to that risk; heedless; rash . . .
Reckless conduct is much more than mere negligence: it is a gross deviation from what a
reasonable person would do.” Black’s Law Dictionary 1298 (8th ed. 2004) (emphases supplied).
7

A portion of the Restatement (Third) of Torts was released in 2010 and supplemented in
2012, well after passage of the MINER Act. Restatement Third of Torts: Liability for Physical
and Emotional Harm (2010/2012). Accordingly, it cannot be used to understand the plain
meaning of a law enacted in 2006. Still, the majority cites Chapter 1, Section 2 of the Third
Restatement in an effort to support its “conscious and deliberate” interpretation (slip op. at 1516), but even the Third Restatement is clearly incompatible with it. That definition begins by
establishing that, “[a] person acts recklessly in engaging conduct if the person knows of the risk
of harm created by the conduct or knows facts that make the risk obvious to another in the
person’s situation . . . . .” (emphasis supplied). Thus an operator may be reckless under this
definition even if it lacks anything approaching a “deliberate” or “conscious” expectation of
serious injury or death, so long as the risk of serious injury or death would be obvious to a
reasonably prudent miner in the operator’s circumstances.

43 FMSHRC Page 36

conscious intention to cause harm to a miner, [but] it did involve a conscious choice to take
actions with knowledge of facts that would disclose to a reasonable foreman an unjustifiably
high risk of potentially fatal injury to a miner.” Lehigh Anthracite Coal, LLC, 40 FMSHRC 273,
283 (Apr. 2018).
b. Chevron I – Structure
My colleagues reference the Commission’s statement in American Coal that “it is
reasonable to expect that flagrant violations be of a type that was not addressed in the original
Mine Act [because] otherwise, Congress could have simply increased the maximum amount at
which a penalty can be assessed and avoided creating a new statutory classification of violation.”
Slip op. at 13 (quoting 35 FMSHRC 2061, 2069-70 (Aug. 2016) (footnote omitted)). Where I
part ways with them is on their insistence that to distinguish a flagrant violation from other Mine
Act provisions, we must apply a heretofore unheard of interpretation of “recklessness” that
excludes indifference. Slip op. at 9.
The majority insists that the level of recklessness in a “reckless flagrant” violation must
be more egregious than that needed to prove an unwarrantable failure violation. Id. at 13, 15. My
colleagues mistakenly assume, however, that the latter always requires a showing of
“recklessness.” This is incorrect. As the majority acknowledges, unwarrantable failure is
“aggravated conduct constituting more than ordinary negligence.” 8 Slip op. at 13. Although it
may be proven by a showing of reckless disregard or intentional misconduct, it may also be
characterized by high negligence or a “serious lack of reasonable care.” Id. at 24 (citing
Consolidation Coal Co., 22 FMHRC at 353 (Mar. 2007) (citing Emery Mining Corp., 9 FMHRC
at 2001-04)). In fact, the Commission has previously explicitly stated that:
[a] finding of unwarrantable failure does not require a finding of
“reckless disregard.” The Commission has also previously
recognized that a finding of high negligence suggests
unwarrantable failure. In Eastern Associated Coal Corp., 13
FMSHRC 178, 187 (Feb. 1991), the Commission stated: “‘Highly
negligent conduct involves more than ordinary negligence and
would appear, on its face, to suggest an unwarrantable failure.
8

Whether the conduct is “aggravated” in the context of unwarrantable failure is
determined by looking at all the facts and circumstances of each case, including (1) the extent of
the violative condition, (2) the length of time that it has existed, (3) whether the violation posed a
high risk of danger, (4) whether the violation was obvious, (5) the operator's knowledge of the
existence of the violation, (6) the operator's efforts in abating the violative condition, and (7)
whether the operator has been placed on notice that greater efforts are necessary for compliance.
Consolidation Coal Co., 35 FMSHRC 2326, 2330 (Aug. 2013) (citing Manalapan Mining Co.,
35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 1346, 1350-57 (Dec. 2009);
Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195
F.3d 42 (D.C. Cir. 1999)); see also Consol Buchanan Mining Co. v. Sec’y of Labor, 841 F.3d
642, 654 (4th Cir. 2016). These factors must be viewed in the context of the factual
circumstances of a particular case. Consolidation Coal, 22 FMSRHC at 353.

43 FMSHRC Page 37

Thus, if an operator has acted in a highly negligent manner with
respect to a violation, that suggests an aggravated lack of care that
is more than ordinary negligence.”
Eagle Energy Inc. 23 FMSHRC 829 (Aug. 2001). Moreover, the Fourth Circuit has defined an
unwarrantable failure as “conduct that is ‘not justifiable’ or is ‘inexcusable.’” Consol Buchanan
Mining Co. v. Sec’y of Labor, 841 F.3d 642, 654 (4th Cir. 2016) (citations omitted).
Thus my colleagues’ insistence that the Secretary prove recklessness above and beyond
that required to demonstrate unwarrantable failure arises from their faulty assumption that an
unwarrantable failure violation must itself stem from behavior deemed reckless. They have, in
effect, bumped up the bar needed to show unwarrantable failure, and by doing so have crafted an
artificial rationale for their view that the Secretary must demonstrate an extraordinarily high
mens rea – essentially proof the operator acted (or failed to act) with a conscious expectation of
serious bodily harm or death – in order to prevail.
As the Secretary points out, there is no indication in the statute or legislative history that
Congress intended that the Secretary would need to demonstrate operator conduct surpassing
traditional concepts of recklessness under the Mine Act in order to prove a “reckless flagrant”
violation. Moreover, in crafting the statutory definition of “flagrant,” Congress has in fact
created a new enforcement mechanism for a type of egregious violation not previously found in
the Mine Act. The “reckless flagrant” is not like any other category of violation and when it is
viewed in its entirety, it is clear that, even if the term “reckless” is defined as it has historically
been used in negligence and unwarrantable failure determinations, something more than what is
needed to prove an unwarrantable failure is already required to prove a flagrant violation. This
includes all of the following:
1.

A level of danger (“death or serious bodily injury”) that, at a minimum, is on a par that
required to prove a significant and substantial violation (See American Coal).

2. A violation that substantially and proximately causes, or reasonably could have been
expected to cause, such a level of danger.
3. A level of aggravated conduct well beyond “ordinary negligence.”
No other provision of the Mine Act requires proof of all of the above elements. For
instance, in the analysis of whether a violation is significant and substantial, the operator’s
negligence is not relevant. Conversely, unwarrantable failure violations do not necessarily
include proof of the violation’s dangerousness. As we explained in Manalapan Mining Co., 35
FMSHRC 289, 294 (Feb. 2013):
We are troubled by the judge’s statement implying that there is a
“requisite high degree of danger” that must be present to support
an unwarrantable failure determination. [32 FMSHRC] at 701. The
degree of danger, although a relevant factor, is not a threshold
requirement for determining whether a violation is unwarrantable.

43 FMSHRC Page 38

The level of danger is but one factor to be considered in evaluating
whether a violation is unwarrantable. . . . . The factor of
dangerousness may be so severe that, by itself, it warrants a
finding of unwarrantable failure. However, the converse of this
proposition – that the absence of significant danger precludes a
finding of unwarrantable failure – is not true.
Thus, the majority’s assertion that the Secretary’s interpretation is functionally identical
to unwarrantable failure language of section 104(d)(2), slip. op. at 13, 24, is simply wrong. My
colleagues’ claim that the Mine Act’s scheme of “increasingly severe sanctions for increasingly
serious violations or operator behavior” means something more than recklessness is needed to
prove a reckless flagrant, slip op. at 13, falls apart when the statutory language of a flagrant
violation is carefully considered. Upon examination, it becomes clear that such a violation – even
when the existing Mine Act definition of “reckless” is applied – already requires more egregious
conduct than that needed to prove violations under other Mine Act provisions. Consequently, the
majority’s rationale for requiring a higher mens rea than recklessness be established in order to
prove a flagrant violation, based on a need to distinguish such a violation from other Mine Act
provisions, is baseless.
The majority also includes in its new definition of “reckless” the test for “reckless
disregard” as set forth in Part 100 of the Secretary’s penalty regulations. Slip op. at 27 (“conduct
which exhibits the absence of the slightest degree of care”). See 30 C.F.R. § 100.3 (d) Table X.
Use of this standard would make it almost impossible to prove that a violation is flagrant, as any
morsel of operator care would suffice to defeat a flagrant charge. In Lehigh Anthracite, we
explicitly refused to utilize MSHA’s penalty regulations to define levels of negligence, stating:
In particular, MSHA’s definition of ‘reckless disregard,’ which
focuses on whether an operator has exhibited the “slightest degree
of care,” is either inappropriately subjective or, if read literally,
almost indistinguishable from intentional misconduct by an
operator’s agent. The definition is therefore not well suited to the
objective “reasonably prudent person” standard used by
Commission Judges.
40 FMSHRC at 280.
The majority’s choice to require a deliberate or conscious expectation of harm in order to
demonstrate recklessness would require a more culpable mens rea than the state of mind required
to prove criminal violations under the Mine Act. See 30 U.S.C. § 820(d) (“Any operator who
willfully violates a mandatory health or safety standard . . . shall, upon conviction, be punished
by a fine of not more than $250,000, or by imprisonment for not more than one year, or by both .
. . .”). When it passed the MINER Act, Congress was aware that the term “willfully” in section
110(d) imposed criminal penalties on operators who acted “either in intentional disobedience of
the [safety] standard or in reckless disregard of its requirements.” United States v. Blankenship,
846 F.3d 663, 674 (4th Cir. 2017) (emphasis supplied) (discussing a mens rea first applied in
United States v. Jones, 735 F.2d 785 (4th Cir. 1984)); see also United.States. v. Consolidation

43 FMSHRC Page 39

Coal Co., 504 F.2d 1330, 1335 (6th Cir. 1974) (criminal sanctions available for “either in
intentional disobedience of the [safety] standard or in reckless disregard of its requirements.”).
“We assume that Congress is aware of existing law when it passes legislation . . . .”
Blankenship, 846 F.3d at 674 (quoting Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990)). A
conclusion that Congress intended to require for a “reckless flagrant” proof of a mens rea more
culpable than the reckless disregard required by section 110(d) for application of the harshest
penalties available under the Act, including high fines and imprisonment, does not comport with
the notion of “increasingly severe sanctions for increasingly serious violations or operator
behavior,” slip op. at 13, unless the “reckless flagrant” was intended to be the most severe
sanction available under the Act. There is no indication it was. Even the most serious sanctions
available under the amended Mine Act – criminal fines of up to $250,000 and up to one year
imprisonment – can be obtained with proof of a mens rea below a deliberate, conscious intent
and equivalent to recklessness.9 The most severe sanctions available under the Mine Act punish
reckless conduct, in addition to intentional conduct. The reckless flagrant – which imposes less
severe sanctions – is also intended to reach reckless conduct that otherwise meets the elements of
a flagrant violation.
What the majority proposes is limiting the “reckless flagrant” tool only to those cases in
which the Secretary would be able to demonstrate the type of deliberate and intentional conduct
the government could already – before the Miner Act amendments – sanction with severe
criminal penalties, including prison. Requiring a mens rea above the level of criminality is
obviously not consistent with the clear purpose of the Miner Act amendments to provide the
Secretary with additional tools to impose greater civil penalties on the especially problematic
category of violation in which an operator shows either a reckless or repeat failure to eliminate a
known hazard that the reasonably prudent miner (an objective, not subjective standard) would
expect to result in serious injury or death.
c. Chevron I - Purpose
The purpose of the Mine Act “is to increase the health and safety of the mining industry's
‘most precious resource-the miner,’ by requiring inter alia that every operator and miner comply
with federally promulgated health and safety standards.” Richardson v. Sec’y of Labor, 689 F.2d
632, 633 (6th Cir. 1982) (quoting 30 U.S.C. § 801). As discussed more fully below in connection
with the Act’s legislative history, the Act and its amendments have, over time, consistently
increased the penalties for various types of violations of the Secretary’s safety and health
regulations, including penalties available for flagrant violations. With respect to the specific
9

My colleagues’ response to this point, at slip op. 24, exposes their unfortunate
confusion of two very basic legal concepts: mens rea and burden of proof. The mens rea
necessary to establish the violation of any given statute – whether civil or criminal – concerns the
state of mind of the person accused of the violation at the time of the allegedly violative conduct
– e.g., negligently, recklessly, willfully, deliberately. The burden of proof is an entirely different
concept, concerned with the mental processes of the judicial decision-maker and what quantity
and weight of evidence are necessary to establish a violation – e.g., beyond a reasonable doubt,
or by a preponderance of the evidence.

43 FMSHRC Page 40

question at issue, interpreting the term “reckless” as requiring proof of a deliberate or conscious
expectation of serious harm to miners will exclude from increased civil penalties operators who
are among the worst of the bad actors. Indeed, such an interpretation limits application of the
“reckless flagrant” section to those whose acts were so notoriously homicidal they could be
proved to have acted or failed to act with a conscious or deliberate expectation of causing serious
harm or death.
The majority’s interpretation of a “reckless failure” would shield from the enhanced
penalties in the “reckless flagrant” provision some of the most reckless operators – including
those so habitually reckless they would lack a “conscious or deliberate indifference” to the
danger of their failure to eliminate known violations that could be expected to cause death or
bodily injury.
For example, the majority’s interpretation does not apply to the operator who fails to
eliminate a known violation if the Secretary cannot prove that he or she consciously realized or
appreciated but nevertheless disregarded the high degree of risk involved in the failure to
eliminate the violation, even if it is indisputable that a reasonable operator in the same position
would do so. In order that the operator’s failure to eliminate a dangerous violation may be
reckless, it should not be necessary that the Secretary prove the operator recognized its own
conduct was expected to cause serious bodily injury or death. An operator’s inability to realize
such danger may be due to its own reckless character, or to the abnormally favorable results of
previous conduct of the same sort. Moreover, the absence of evidence of such “conscious” or
“deliberate” disregard for the danger would often likely be due to the general inaccessibility of
evidence of an operator’s actual mental state at the time of the violation in question.
The Secretary would very rarely, if at all, be able to meet the majority’s unreasonable
demand for proof that the operator had an actual subjective knowledge “the violation existed”
and he or she “would expect it to kill or cause serious bodily injury.” Slip op. at 17. It is
unreasonable to interpret a statute aimed at “reckless” actors to apply only to the most coldblooded killer. The word “reckless” indicates Congress’s intent that it is enough that the operator
has reason to know of circumstances which would bring home the realization of the ordinary,
reasonable operator the dangerous character of a failure to take reasonable steps to eliminate
dangerous violations.
d. Chevron I – Legislative History
In both the legislative history to the 1977 Mine Act and the 2006 MINER Act, Congress
laid blame for then recent mining tragedies, in part, on insufficiently low penalty amounts that
had failed to deter operators from violating MSHA’s mandatory health and safety standards.
Indeed, provisions that give the Secretary of Labor authority to propose higher penalties to
improve compliance with health and safety standards have been a central feature of every piece
of mine safety legislation in U.S. history.
The Senate Report accompanying the original 1977 Mine Act noted that under the
predecessor legislation – the 1969 Coal Act - “[t]he assessment and collection of civil penalties
is intended to encourage a state of constant compliance with the Act on the part of operators, but
as noted, the penalty system has been solely deficient in meeting this objective.” S. Rep. No. 95-

43 FMSHRC Page 41

181, 95th Cong., 1st Sess., at 39 (1977) (“1977 Senate Report”). The 1977 Senate report stated
further that “[t]o be successful in the objective of including effective and meaningful
compliance, a penalty should be of an amount which is sufficient to make it more economical for
a[n] operator to comply with the Act’s requirements than it is to pay the penalties assessed.”
Id. at 41. The 1977 Senate Report concluded that:
[i]n overseeing the enforcement of the Coal Act the Committee has
found that civil penalty assessments are generally too low, and
when combined with the difficulties being encountered in
collection of assessed penalties (to be discussed, infra), the effect
of the current enforcement is to eliminate to a considerable extent,
the inducement to comply with the Act or the standards, which was
the intention of the civil penalty system.
Id.
In the aftermath of a series of tragic mining accidents in 2006, Congress amended the
Mine Act to, among other things, once again increase penalties. A Senate Committee stated that:
[t]he purpose of the “Mine Improvement and New Emergency
Response [‘MINER’] Act of 2006,” S. 2803, is to further the goals
set out in the Mine Safety and Health Act of 1977 and to enhance
worker safety in our nation’s mines. The bill amends the 1977 Act
“to... improve safety-related procedures and protocols and increase
enforcement and compliance to improve mine safety.
S. Rep. No. 109-365, 109th Cong., 2nd Sess. (2006). To that end, the legislation “increases both
civil and criminal penalties for violations of federal mining safety standards.” Id. President
George W. Bush signed the MINER Act into law on June 15, 2006, explaining that “to ensure
compliance with the law, the MINER Act will increase the maximum penalty for flagrant
violations of mine safety regulations nearly four-fold.” Presidential Statement on Signing the
Mine Improvement and New Emergency Response Act of 2006, 2006 U.S.C.C.A.N. S27 (June
15, 2006).
The clear trend toward giving the Secretary greater authority to impose increasingly
higher fines must inform the inquiry at hand – whether Congress, in using the word “recklessly,”
meant to make the four fold increase in civil penalties for flagrant violations available only when
an operator acts with a deliberate expectation of harm but not where the operator is recklessly
indifferent to such harm. No sanction available under the Mine Act had ever been interpreted to
require proof that an operator had a conscious or deliberate expectation of harm. A clear
legislative intent to increase penalties should inform our analysis of Congress’s use of the word
“reckless” in the flagrant provision and whether it reflects: (1) a legislative intent to require the
Secretary to take the unprecedented step of proving intentional harm in order to assess the new
increased flagrant penalties or (2) a legislative intent to make assessment of such penalties
available upon proof of a reckless disregard for serious injury or death. Just as only the latter
interpretation squares with the plain meaning of the statutory text and its structure, only the latter

43 FMSHRC Page 42

interpretation is consistent with the Congressional intent to increase penalties assessed for
particularly dangerous reckless and repeat violations.
2. Chevron II Analysis - Even if the statute does not provide a clear
answer to the question of whether proof is required of a conscious
expectation of serious injury or death, the Secretary’s reasonable
interpretation that it does not require such proof would be entitled
to deference.
The Chevron I Analysis, above, provides a clear and unambiguous answer to the specific
question of whether deeming a violation “reckless flagrant” requires proof that the operator’s
failure to eliminate the violation was done with a conscious or deliberate expectation of harm,
rather than recklessness. I find that the question is answered at the first step of Chevron because
the text, structure, purpose and legislative history of the MINER Act amendments at Section
110(b)(2) lead me to a clear and unambiguous conclusion that Congress meant what it said – a
reckless flagrant is predicated on “reckless” conduct. And for that same reason, I obviously
conclude that the majority’s claim to have come to an unambiguously clear but completely
contrary interpretation is without merit.
Even assuming arguendo that the result of the Chevron I Analysis was that section
110(b)(2) is ambiguous as to the question of the appropriate mens rea needed to prove a
“reckless flagrant” violation, the D.C. Circuit in Natural Resources Defense Council, Inc. v. EPA
noted that, under step two of Chevron, “the agency’s interpretation must be sustained if it is
reasonable in light of the language, legislative history, and policies of the statute.” Natural
Resources Defense Council, Inc. v. EPA, 822 F.2d 104, 111 (D.C. Cir. 1987). Thus, the Chevron
I Analysis, which focused on these same subjects, meaningfully informs the reasonableness
inquiry at the heart of the Chevron II Analysis. And the D.C. Circuit has held that the Secretary’s
interpretations of the Mine Act are entitled to special deference given the Mine Act’s important
purpose:
in the context of a remedial health-and-safety act like the Mine Act
whose “primary purpose . . . [is] to protect mining’s most valuable
resource—the miner,” Int’l Union, [UMWA] v. [MSHA]., 823 F.2d
608, 617 (D.C. Cir. 1987) (internal quotation marks omitted), we
must “‘liberally construe[ ]’” the Act’s terms, meaning that we are
all the more “obliged to defer to the Secretary’s miner-protective
construction of the Mine Act so long as it is reasonable.”
Cannelton Indus., 867 F.2d at 1437 (internal quotation marks
omitted).
Am. Coal Co. v. FMSHRC, 796 F.3d 18, 24 (D.C. Cir. 2015).
As described more fully above, the Secretary’s interpretation of the term “reckless” in the
Mine Act’s flagrant provision protects miners from the reckless bad actors Congress intended,
unlike the overly restrictive approach adopted by the majority that would only sanction those
operators so notoriously pathological it could be proved that they acted with a deliberate and

43 FMSHRC Page 43

conscious expectation of causing death or serious bodily injury. Unlike the majority’s non-expert
approach, the Secretary’s interpretation is a reasonable one, and is consistent with the
formulation of “reckless” set out in each of the Restatements and our case-law. Indeed, the
Secretary has adopted the interpretation set forth in the Restatement (Second) which provides
that “recklessness” occurs when an “actor has such knowledge, or reason to know, of the facts,
but does not realize or appreciate the high degree of risk involved, although a reasonable man in
his position would do so.” Sec Br. at 30 (quoting Restatement (Second) of Torts § 500 (1965)).
Thus, the Secretary’s interpretation of a Section 110(b)(2) reckless flagrant violation has several
elements:
•

To establish a reckless “failure to make reasonable efforts to eliminate a known
violation,” 30 U.S.C. § 820(b)(2), the Secretary must demonstrate that the
operator made a choice not to correct a violation that is actually or constructively
known (or exhibited indifference in failing to correct such a violation).

•

The level of negligence is that required under common law and existing Mine Act
case-law involving “recklessness” – there is no “heightened recklessness”
required and phrases or terms in the flagrant provision that are the same or similar
to those used elsewhere in the Mine Act should be interpreted similarly.

•

There is no scienter requirement. The word “reckless” does not require proof of
the operator’s deliberate or conscious expectation of harm.

I fail to see anything unreasonable about the Secretary’s interpretation of the term
“reckless” in the flagrant provision of Section 110(b)(2) to mean the same thing as “reckless” in
any other Mine Act context – that no showing of the operator’s intent is required. S. Reply Br. at
2-3. In short, the Secretary’s focus is on the operator’s choice not to correct a problem when the
operator is aware or should be aware of the potential consequences. Under this interpretation,
proof of an operator’s conscious intention to disregard the risk of harm to a miner when failing to
eliminate a deadly violation is not required. S. Br. at 29-32. This is a reasonable interpretation
consistent with the purposes of both the Mine Act and the MINER Act amendments, and would
answer the specific question not clearly answered at Chevron Step I. Therefore, I would defer to
the Secretary’s reasonable construction, as I am required by law to do.
B. The operator’s failure to maintain the walkway in good condition was a
flagrant violation.
The facts of this case are so egregious that even under the incorrect interpretation of
“reckless” adopted by the Judge and the majority – one that requires a mens rea for intentional
rather than reckless conduct – this violation would be flagrant. A written engineering report
outlining the dangers of the walkway and an operator’s deliberate choice to put essential repairs
for the walkway on the to do list, Tr. at 339, are exactly the type of operator conduct Congress
was trying to deter by including the flagrant penalty language in the Miner Act.

43 FMSHRC Page 44

The engineering report stated unequivocally that without steel plate reinforcing, the outer
walkways “cannot be found to be structurally adequate for use,” and that the walkways “are not
safe for personnel to be using until a repair has been completed.” S. Ex. 5 at 2.
However, Northshore management failed to remedy the ongoing walkway safety issues.
As early as 2013, a Northshore engineer submitted a work order stating that “outside walkways
and below conveyor need to be repaired.” S. Ex. 18. Even after commissioning a report about the
condition of the walkway, Northshore failed to correct the safety problems until the accident
occurred ten months later. This despite language in the report that the outer walkways “cannot be
found to be structurally adequate for use. . . . [T]hey are not safe for personnel to be using until a
repair has been completed.” S. Ex. 5.
Such a potentially lethal combination of a very serious condition which lasted for a very
long time fits squarely into the interpretation of “reckless” outlined above. The dangerous
conditions were compounded by the fact that, unlike a visibly unsafe roof or a water inundation
in a mine, the contract miners working for Northshore were not aware of the unsafe condition of
the walkway. Northshore assigned them to work on the walkway, but gave them no notice of its
dangerous condition.
Although the Judge ultimately ruled that the violation was not flagrant, she found that all
of the criteria needed to prove a flagrant violation were met with one exception: that the
operator’s failure to make reasonable efforts to eliminate the known violation was “reckless.”
Cite to ALJ Dec. at 68-69. Substantial evidence – including evidence the majority uses to find
reckless disregard and unwarrantable failure, slip op. at 25-28, supports her findings that the
other criteria were met. Northshore had knowledge of the safety hazard – Northshore’s own
engineers submitted work orders for the outer walkways, and other miners complained about the
conditions. Id. at 54. Moreover, the operator did not make reasonable efforts to repair the
walkway, and the structural defect could reasonably be expected to cause death or serious bodily
injury.10
My colleagues make some head-spinning pronouncements about factors that support their
finding of reckless disregard and unwarrantable failure and at the same time, form the basis of
their opinion that the violation was not flagrant. First, the majority emphatically rules that,
pursuant to Lehigh Anthracite, 40 FMSHRC 273, 281-82 (Apr. 2018), Northshore’s use of fall
protection does not mitigate a negligence finding of “reckless disregard,” explaining that fall
protection was a completely inadequate effort to satisfy the standard’s requirement and address
10

The Judge’s conclusion that the violation reasonably could have been expected to
cause death or serious bodily injury is not at issue in this appeal. The Judge’s finding that the
violation did in fact meet this requirement of proving a flagrant violation was not challenged in
either petition for discretionary review, addressed in our order directing review, or briefed by the
parties. In dicta, supra 17-18, the majority attempts to depart from our precedent in American
Coal, 38 FMSHRC at 2066 and Lehigh Anthracite, 40 FMSHRC at 280 (directing an objective
analysis of whether the violation could have reasonably been expected to cause death or bodily
injury) to instead require an unsuitable subjective analysis. This portion of their decision is
decided ultra vires of our statutory authority and therefore does not disturb existing precedent.

43 FMSHRC Page 45

defects in the walkway. Slip op. at 28. I agree. Yet earlier, for purposes of their flagrant analysis,
the majority explains that the Judge correctly relied on the operator’s use of fall protection as a
mitigating factor in her “reckless flagrant” analysis. Slip op. at 19-20. Citing no authority, the
majority suggests that an analysis of whether a violation is “reckless flagrant” focuses on
whether the operator acted intentionally while our negligence analysis does not. And because the
majority views the use of fall protection as an indication that the operator had no deliberate
purpose or conscious expectation of severe harm, it views these efforts having nothing to do with
a reasonable attempt to eliminate the violation as mitigating the operator’s culpability. Id.
Under this theory, an operator may avoid a “reckless flagrant” charge, not by attending to
the safety hazard at issue, but by ignoring it, substituting its judgment for that of the Secretary,
and by instituting alternative measures. Here, the introduction of such alternative protocols (fall
protection) clearly indicated that the operator was aware of the safety hazard, making the
decision not to correct it appear intentional. In addition, the emphasis on fall protection placed
the burden to work safely only on the miners, instead of on the operator who should have
corrected the underlying condition.11
Similarly, in finding “reckless disregard,” the majority rejects Northshore’s argument
which claimed that the engineering report’s statement that the operator should “restrict access” to
the walkway was not an outright prohibition on access. Slip op. at 27-28. Yet my colleagues base
their finding that the violation was not flagrant in part on the fact that the report recommended
restricting access to the outer walkways and that there was no evidence that this recommendation
was ever violated (even though, of course, access was never prohibited). Slip op. at 19-20.
Arguably, in the absence of high penalties associated with flagrant violations (up to
approximately $271,000), some operators might be tempted to roll the dice by putting off safety
repairs, knowing that non-flagrant penalties are capped at approximately $74,000 and thus might
be much less costly than the repair itself.12 This was precisely the situation that Congress wanted
to address by providing meaningful penalties under the Act.13 Northshore’s actions in ignoring
the recommendations of its own experts and playing Russian roulette with the safety of its
workforce is properly deemed a “reckless flagrant” violation.14
11

We note that in an S&S analysis, the operator’s defense that fall protection was utilized
would have been rejected as a “redundant safety measure.” See Sec’y of Labor v. Consolidation
Coal Co., 895 F.3d 113, 118 (D.C. Cir. 2018).
12

The repair was estimated to cost $300,000. At the time of the violation, the maximum
penalty for a non-flagrant violation was $69,417. 82 FR at 5383 (Jan. 18, 2017).
13

See S. Rep. No. 95-181, at 9 (1977), reprinted in Senate Subcomm. on Labor, Comm.
on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977 (1978)
(“Mine operators still find it cheaper to pay minimal civil penalties than to make the capital
investments necessary to adequately abate unsafe or unhealthy conditions . . . .”).
14

Indeed, Northshore’s repeated failure to take reasonable steps to repair the walkway
(continued…)

43 FMSHRC Page 46

I would reverse the Judge’s ruling that the operator was not “reckless” and remand for a
decision consistent with this opinion and for the assessment of a penalty.
III.
The Judge’s Findings of Individual Liability Should be Affirmed
A. The merits of the section 110(c) charges
Matthew Zimmer and Roger Peterson were high-ranking managers at Northshore Mining
who were intimately involved with the problems surrounding the defective walkway.
Importantly, they each received a copy of the KOA report which, as previously noted,
emphasized that the walkways were “not safe for personnel to be using until a repair has been
completed.” Tr. 327; Resp. Ex. D; S. Ex. 5 at 2.
Their response to this information was to continue to send miners to work on the
walkways. Their only nod to safety needs was to determine that fall protection was needed.
Tr. 48-49; 478. Although they had the authority to prohibit miners from using the walkway, they
chose not to exercise it. Instead, they appeared satisfied with a status quo that put the workforce
in danger for months at a time.
The Judge found the two individuals liable under section 110(c) for knowingly failing to
maintain the walkways in good condition in violation of 30 C.F.R. § 56.11002 (they were not
charged with failure to barricade or put up warning signs). She assessed penalties of $4,000
against each of them. For the reasons discussed below, I conclude that the Judge’s finding of
individual liability is supported by substantial evidence, and thus dissent from the majority’s
ruling reversing the Judge.15
Section 110(c) states that “[w]henever a corporate operator violates a mandatory health or
safety standard . . . any director, officer, or agent of such corporation who knowingly authorized,
ordered, or carried out such violation, failure, or refusal shall be subject to the same civil
penalties [as the operator].” 30 U.S.C. § 820(c).

14

(…continued)
could itself establish recklessness, consistent with our observation in Wolf Run Mining Co.,35
FMSHRC 536, 543 (Mar. 2013) that “repeated failure to make reasonable efforts to eliminate a
single known and dangerous violation will often be considered reckless.”
15

When reviewing an administrative law judge’s factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. §
823(d)(2)(A)(ii)(I). “Substantial evidence” means “such relevant evidence as a reasonable mind
might accept as adequate to support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co.,
11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)).

43 FMSHRC Page 47

An individual acts knowingly when the individual is in a position to protect employee
safety and health and fails to act on the basis of information that provides knowledge or reason to
know of the existence of a violative condition. McCoy Elkhorn Coal Corp., 36 FMSHRC 1987,
1996 (Aug. 2014). As discussed more fully below, Zimmer and Peterson were clearly in a
position to protect the safety and health of Northshore miners, but failed to act on the
information in the engineering report. The majority, however, relies on Maple Creek Mining,
Inc., 27 FMSHRC 555 (Aug. 2005) to conclude that these individuals should escape liability.
According to the majority, the Secretary failed to prove that these two individuals were “in a
position” to remedy the condition at issue, which under Maple Creek, is a prerequisite for section
110(c) liability.16 Slip op. at 10-11. As demonstrated by the record evidence, their ruling is
misguided.
Matthew Zimmer was section manager of Hot Side Asset Management. He had
administrative functions, would supervise work planners and supervise how many technicians
were needed for a job. He would supervise schedulers who organized work orders to repair
equipment, would review work orders, and provide his input on scheduling of a work order.
Roger Peterson was section manager of Hot Side Operations. It appears that he was
responsible for the running of equipment. He was also responsible for the maintenance group
whose workers changed the idlers on the walkway. As previously discussed, both Zimmer and
Peterson received a copy of the engineering report regarding the defective walkway, and both
were involved in discussions about the use of fall protection. Both Zimmer and Peterson had the
authority to shut down operations for any reason, and were responsible for the safety of the
workforce. Tr. 402, 433.
The Judge’s finding of liability was based on:
•

The fact that both managers informed their respective crews about the condition
of the walkways and that access was to be restricted but did not give the
contractor crew such warning.17

16

For the reasons set forth in Commissioner Jordan’s dissent in Maple Creek, I believe
that the majority in that case erred in requiring the Secretary to show that individual miners
“possess the power to take remedial action” in order to prove liability under section 110(c). Slip
op. at 10-11. This added a new component to the traditional section 110(c) analysis, which
simply required the Secretary to show that the individual was “in a position to protect employee
safety and health.” Maple Creek, 27 FMSHRC at 567. Moreover, this new evidentiary element
mandated by the majority in Maple Creek, which requires proof that the individual has the
authority to take remedial action, fails to take into account that section 110(c) envisions liability
simply when an operator’s agent “carries out” a violation. Nonetheless, I analyze this issue using
the analysis set forth in the Commission’s Maple Creek opinion.
17

The mine’s own permanent miners who were more aware of the structural issues felt it
was too dangerous to use the outer walkways, and found alternate ways to perform conveyor
maintenance. Tr. 116-17. By contrast, contract miners could not see the walkways under the
(continued…)

43 FMSHRC Page 48

•

Sufficient evidence to demonstrate that both managers knew that the walkways
were not maintained in good condition.

•

The fact that both managers received copies of the engineering report.

•

The fact that both managers failed to act on the basis of the walkway information
to protect worker safety.

•

The fact that both managers spoke with the Northshore engineer who received a
work order about the walkway, and together they decided to take no corrective
action but instead, decided to put the walkways on a list for later repair.
S. Ex. 19 (report of MSHA investigator).

•

The fact that neither manager fully considered the importance of repairs.

•

The fact that managers did not consider the importance of repairing the walkways
or warning miners of its deteriorated state, but tried to work around the issue by
implementing a fall protection policy.

•

The fact that Zimmer authorized a work order for the 62/162 gallery in September
2015 which stated in part “[v]erify the floor is safe on the east side of the
conveyor. Roger [Peterson] says that fall protection is required.”18 Resp. Ex. E.

41 FMSHRC at 73-76.
Even under the Commission’s Maple Creek test, substantial evidence supports the
Judge’s finding of liability against these two individuals. Although it is true that, as Zimmer and
Peterson argue, the Engineering Department (under Daniel Scamehorn) had the direct
responsibility and authority to repair the walkway, Zimmer and Peterson were not without
recourse. They had the means to eliminate the hazard – miners working on a dangerous walkway
– in two regards. First, it was within their authority to send a work order requesting that the
walkway be repaired, and to follow up if the repair was not performed in a timely fashion.
Second, it was within their ability to ensure that miners did not go onto the walkway – even if
that meant shutting down operations.
As to their authority to send in work orders and to subsequently check on the status of
such orders, the record evidence is as follows:

17

(…continued)
pellets, did not see any hazard or warning signs on the walkways, and were not aware of
problems with the walkways. Tr. 53, 68-69, 194, 202-03, 205-07; S. Br at 12.
18

The work order to which the Judge referred was not an order to repair the walkway.
Rather, it was an order to deal with an idler replacement.

43 FMSHRC Page 49

•

Anyone at Northshore with the proper computer system access could generate a work
order and send it to the Engineering Department;

•

An individual sending a work order could prioritize it if it involved a safety hazard
(identifying it as a safety issue), which Betzler had done in the past; and

•

If the above occurred, the work order would have higher priority.

The testimony of Jason Betzler (maintenance planner) was that work orders could be
coded to indicate the presence of a safety hazard. Mr. Betzler further testified that such orders
were given a quick review for any safety issues. If there was an immediate concern, the subject
area would be taped off, etc. Mr. Betzler testified that the safety notation heightened the order to
the top of the list for his review. Tr. 305.
The testimony of Matthew Zimmer was as follows:
Q. Was it ever your understanding that there was a potential for a
failure of the floor to occur that would result in a fall to a person?
A. No
Q. If you had had that understanding that that potential existed on
the outer walkways, what would you have done?
A. I would have elevated the concern to my supervisor or both to
the Safety Department.
Tr. 413-14.
The testimony of Peterson was as follows:
Q. If a work order is sent to Engineering, does that affect your
involvement on it?
A. No. Once it went to Engineering, it was really out of my
control, my input.”
Tr. 421.
However, Peterson added that “[w]e would meet with the Engineering
Department every month or two to go through the backlog to reprioritize if
anything needed to be changed.” Id
Both Zimmer and Peterson stated that “[they had] the authority to shut
down operations for any reason.” S. Ex. 17. Therefore, at least theoretically, they
could have shut down operations until the walkway was repaired. S. Ex. 19 and
20 (Statements to MSHA investigator).
Thus Zimmer and Peterson could have played a major role in remedying the hazard. They
could have submitted work orders about the walkway and marked them as affecting safety. They

43 FMSHRC Page 50

then could have followed up with the Engineering Department (Peterson’s testimony) or
contacted a supervisor or safety official (Zimmer’s testimony). Relieving them of liability simply
takes advantage of a company organizational chart as a defense to a serious violation, as the
record indicates that these were high-ranking individuals who could have exerted pressure on the
Engineering Department to make the repairs.
The evidence regarding their authority to keep miners off of the walkway (thus
eliminating the hazard) is even more compelling. Peterson told the MSHA investigator that “I am
in charge of all work, operations and maintenance. . . . I direct people that direct the workforce.”
S. Ex. 17. Peterson and his subordinates were responsible for implementing the means of
protection for accessing the outer walkways. Resp. Br. at 28. He testified that on the day of the
incident he told another supervisor that it was fine to let a cleanup crew go up to the 162
conveyor to perform cleanup work and to make sure they knew to wear fall protection. Tr. 431.
Zimmer heard the conversation and told the supervisor to be sure fall protection was worn. Tr.
477-78. Hence, as a manager with the authority to tell miners where they could and could not
work, Peterson had the ability to eliminate the hazard.
Zimmer told the MSHA investigator “I do direct the workforce” although he also testified
that when he moved into the Asset Management position, the people who worked under him
would have no reason to be on the outer walkways. S. Ex. 17. Generally, he had responsibility
for directing the miners, and ensuring that they worked safely. Tr. 402. Thus, like Peterson, he
had the power to keep the miners off of the walkway.
In short, there is more than one way to fix a problem – there is more than one way to
“take remedial action to eliminate the potential . . . hazard.” Maple Creek Mining, 27 FMSHRC
at 569. Even the Maple Creek majority, in finding two of the foremen not liable under section
110(c) for failure to properly maintain an inundated escapeway in a safe condition based their
ruling on the fact that “neither was authorized to redesign the pumping system or to construct an
alternative walkway.” Id. (emphasis added). The Maple Creek majority also relied on the
Commission’s Kenny Richardson decision, quoting the Commission’s statement that
“Richardson, in view of his position as day shift master mechanic with general supervisory
authority over the dragline . . . should have removed it from service.”19 Id. at 569 n. 9. In effect,
Zimmer and Peterson could have “removed the walkway from service” by prohibiting miners
from working on it. Neither did.
In conclusion, substantial evidence supports the Judge’s finding of liability. It is clear that
Zimmer and Peterson were well aware of the problem with the walkway and relied on fall
protection to solve it, instead of advocating for timely repairs. Their complacency, particularly in

19

Granted, the safety standard at issue in Kenny Richardson explicitly required not only
that equipment be maintained in safe operating condition but that unsafe equipment be removed
from service immediately. 30 C.F.R. § 77.404(a). However, Northshore could have avoided
liability under section 56.11001, which requires that the walkway be maintained in good
condition, if the walkway, in effect, had been “taken out of service” by forbidding miners to go
on it, and by barricading it. Id.

43 FMSHRC Page 51

light of the engineering report, is deeply troubling and constitutes the requisite “aggravated
conduct” required to find liability under section 110(c).
B. Procedural issue – Delay in Proposing Penalties
The Secretary must file a penalty petition within a “reasonable” period of time. The
operator argues that there was undue delay (about 16 months after the operator was cited) in
MSHA’s filing of the section 110(c) penalty petitions. However, the operator has not been able
to persuasively articulate how it was prejudiced by any alleged delay.
The operator bases its argument on section 105(a) of the Act which provides in pertinent
part that:
[i]f, after an inspection or investigation, the Secretary issues a
citation or order . . . he shall, within a reasonable time after the
termination of such inspection or investigation, notify the operator
by certified mail of the civil penalty proposed to be assessed . . .
for the violation cited . . . .”
30 U.S.C. § 815(a) (emphasis added).
Consequently, the Commission has held that, while delay on the Secretary’s part in
proposing a penalty may not vitiate the civil penalty proceeding and the finding of a violation, an
inordinate and unjustifiable delay might well vitiate the imposition of the penalty itself.
Twentymile Coal Co., 26 FMSHRC 666, 682 (Aug. 2004), rev’d on other grounds, 411 F.3d 256
(D.C. Cir. 2005) (“Twentymile I”).
Regardless of how important procedural regularity may be, however, “it is subservient to
the substantive purpose of the Mine Act in protecting miners’ health and safety [and the
Commission] therefore must balance concerns for procedural regularity against the severe impact
of a dismissal on the Mine Act’s penalty scheme.” Webster Cty. Coal, LLC, 34 FMSHRC 1946,
1949 (Aug. 2012).
The requirement in section 105(a) that the Secretary propose a penalty assessment
“within a reasonable time” does not impose a jurisdictional limitations period but rather turns on
whether the delay is reasonable under the circumstances of each case. The Commission examines
whether adequate cause existed for the Secretary’s delay in proposing a penalty and considers
whether the delay prejudiced the operator. In Twentymile Coal Co., 411 F.3d at 256 (involving a
late-filed penalty assessment against an operator), the D.C. Circuit formulated the following test
when an operator charged that a proposed assessment was untimely: (1) was the delay in
proposing the penalty a reasonable one and (2) did the operator show prejudice from whatever
delay in fact occurred? Id. at 262. The Court clarified that the time period subject to the
reasonableness requirement begins only upon the completion of the investigation necessary to
support the penalty proposal. Id.; see also Salt Lake County Rd. Dep’t, 3 FMSHRC 1714, 171617 (July 1981); Medicine Bow Coal Co., 4 FMSHRC 882, 885 (May 1982); Steele Branch
Mining, 18 FMSHRC 6, 13-14 (Jan. 1996); Black Butte Coal Co., 25 FMSHRC 457, 459-61

43 FMSHRC Page 52

(Aug. 2003). The Commission has held that a delay of less than 11 months is not unreasonable,
particularly when there is a related ongoing section 110(c) investigation taking place. Sedgman,
and David Gill, employed by Sedgman, 28 FMSHRC 322, 340 (June 2006) (separate opinion of
Commissioners Suboleski and Young).
An operator must show at least some “actual prejudice” arising from the delay in order to
secure a dismissal of a penalty proceeding due to a late-filed petition. See Long Branch Energy,
34 FMSHRC 1984, 1991-93 (Aug. 2012); see also Twentymile, 411 F.3d at 262. Furthermore,
the prejudice must be “real” and “substantial” to “justify the drastic remedy of dismissal.” Long
Branch, 34 FMSHRC at 1993.
The operator contends that the delay caused prejudice at the hearing in part due to the
need for Inspector Norman (who conducted the investigation into the walkway collapse) to rely
on his notes on the witness stand rather than his own personal recollection or his observations of
recollections by other witnesses. According to the operator, James Hautamaki, who led the
MSHA section 110(c) investigation after the initial citation and order were issued to the operator,
experienced similar problems at the hearing because of the delay, while Evander King (a contract
miner who filed a complaint with MSHA) did not recall crucial aspects of the event when crossexamined. Northshore’s counsel contends that this is prejudicial because it affected the
operator’s ability to cross examine the witnesses and present evidence. The operator further
argues that the cases against Peterson and Zimmer were essentially based not on the testimony of
Inspector Norman or the Special Investigator Hautamaki, but on the recitation of hearsay
evidence from persons who the Secretary did not produce as witnesses or even identify in any
fashion that would establish their credibility. As such, the operator argues that the delay was
unreasonable. Resp. PDR at 20 n.9.
The Secretary never provided an explanation for the delay,20 arguing to the Commission
that the issue had been waived.21 However, the operator failed to demonstrate that it suffered any
“actual,” “real,” or “substantial” prejudice to “justify the drastic remedy of dismissal.”22
Consequently, I would reject Northshore’s procedural challenge.
20

The Secretary erroneously claims that the operator waived this argument before the
Judge because the Secretary incorrectly states that the operator raised this argument for the first
time in its opening brief. The operator made this argument before the Judge at the hearing and in
its answers to the Secretary’s section 110(c) petitions. Tr. 225-26. Therefore, the Judge had an
“opportunity to pass” on the issue. 30 U.S.C. § 823(d)(2)(A)(iii); accord 29 C.F.R. 2700.70(d).
Furthermore, the operator states that it was unable to develop the argument in its post-hearing
brief because of a “[twenty]page limit” that the Judge “imposed on the parties for post-hearing
briefs” – despite the numerous complex issues involved in the case. NS Resp. Br. at 31-32.
21

Before the Judge, the Secretary did not offer any explanation for the delay. However, if
the operator is to be given leeway for failing to brief the issue given the 20 page limit imposed
by the Judge for the parties’ post-hearing briefs, the same leeway must be given to the Secretary.
22

An MSHA inspector having to refer to contemporaneous interview notes is not unusual
(continued…)

43 FMSHRC Page 53

IV.
Conclusion
I join the majority in affirming the Judge’s findings of “reckless disregard” for both
violations. I also affirm the Judge’s conclusion that the two violations were the result of the
operator’s unwarrantable failures. However, I would find that the Secretary proved a flagrant
violation and that the individual miners were liable under section 110(c).

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

20

(…continued)
at Commission hearings and hardly qualifies as “real” or “substantial” prejudice that justifies
outright dismissal. Furthermore, Commission procedural rules expressly allow for hearsay
evidence. 29 C.F.R. § 2700.63(a).

43 FMSHRC Page 54

Distribution:
R. Henry Moore, Eq.
Fisher & Phillips LLP
Six PPG Place, Suite 830
Pittsburgh, PA 15222
hmoore@fisherphillips.com
Archith Ramkumar, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202
Ramkumar.Archith@dol.gov
April Nelson
Office of the Solicitor
U.S. Department of Labor
201 12th St. South-Suite 401
Arlington, VA 22202-5450
nelson.april@dol.gov
Melanie Garris
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5450
garris.melanie@dol.gov
Administrative Law Judge Margaret A. Miller
Federal Mine Safety Health Review Commission
721 19th Street, Suite 443
Denver, CO 80202-2536
mmiller@fmshrc.gov

43 FMSHRC Page 55

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 5, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2020-0270
A.C. No. 46-02805-499009

v.
U.S. SILICA

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). The Commission has received a motion from the operator
seeking to reopen a penalty assessment which had become a final order of the Commission
pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 813(a). On December 14, 2020, the
Commission issued an order to show cause within 20 days why the Commission should not deny
the motion to reopen and dismiss the docket for an unexplained delay in filing the motion.
On December 15, 2020, the Commission received an email from counsel for the operator
stating that it did not intend to file a further motion and would allow the Commission’s
December 14 order to become final. Consistent with that order, the motion to reopen has been
denied and this matter is dismissed with prejudice.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

43 FMSHRC Page 56

Distribution (email)
Michael Peelish
Attorney for U.S. Silica
Law Firm of Adele L. Abrams, PLLC
mpeelish@aabramslaw.com
John M. McCracken
Senior Trial Attorney
Office of the Solicitor
Mine Safety and Health Division
U.S. Department of Labor
McCracken.John.M@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
GVoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
Garris.Melanie@DOL.GOV

43 FMSHRC Page 57

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 12, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2020-0007
A.C. No. 13-00095-485512

v.
STEWART SERVICES

BEFORE: Rajkovich, Chair; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2018) (“Mine Act”). On October 4, 2019, the Commission received from Stewart
Services (“Stewart”) a motion seeking to reopen a penalty assessment that had apparently
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
The record reveals that on February 13, 2019, the Department of Labor’s Mine Safety
and Health Administration (“MSHA”) issued Citation No. 9383277 to Stewart for an alleged
violation. On March 20, 2019, MSHA issued Assessment No. 000485512, proposing a civil
penalty for the alleged violation. According to MSHA’s records, MSHA attempted to deliver the
proposed assessment to Stewart on March 23, 2019, but the assessment was returned to MSHA
on April 27, 2019, due to an inability to deliver it. On July 5, 2019, MSHA sent Stewart a
delinquency notice regarding the unpaid civil penalty.
Stewart, through its representative, claims that it did not receive the proposed assessment,
and that it intended to contest Citation No. 9393277 and the associated penalty. After receiving
the delinquency notice, Stewart contacted MSHA and requested a copy of the proposed
assessment, which it received on July 22, 2019. On July 24, 2019, Stewart sent a letter to MSHA
contesting the subject citation and proposed penalty. When Stewart’s representative later
contacted MSHA to confirm receipt of the contest, he was informed that MSHA had received the
contest but considered the proposed penalty assessment to have become a final Commission
order.

43 FMSHRC Page 58

Having reviewed Stewart’s request and the Secretary’s response, we conclude that Assessment
No. 000485512 has not become a final Commission order. The proposed penalty assessment was
not received by Stewart until July 22, 2019, and, following such receipt, Stewart timely contested
Citation No. 9383277 and the associated proposed penalty. Accordingly, we deny the request to
reopen as moot and remand this matter to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part
2700. Consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within
45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

43 FMSHRC Page 59

Distribution:
Michael L. Beard, President
Andrew Weitkamp
Stewart Services
2411 Brownsboro Road, #205
Louisville, KY 40206
mike@stewart-services.com
andrew@stewart-services.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
mcCracken.john.m@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
gvoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
garris.melanie@dol.gov

43 FMSHRC Page 60

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 12, 2021

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2020-0155-M
A.C. No. 39-00022-508281

v.
GCC DACOTAH, INC.

Docket No. CENT 2020-0156-M
A.C. No. 39-00022-509671

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On May 28, 2020, the Commission received from GCC
Dacotah, Inc., (“GCC Dacotah”) two motions seeking to reopen penalty assessments that had
become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
The two motions addressed in this order rely upon the same rationale and common facts
as a basis for re-opening. For the limited purpose of addressing these motions to reopen, we
hereby consolidate these dockets, which involve similar procedural issues. 29 C.F.R. §2700.12.
1

43 FMSHRC Page 61

good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessments were delivered on February 3 and March 9
and became final orders of the Commission on March 5 and April 9, respectively. GCC
Dacotah’s motion says that the proposed assessments in these matters were not timely contested
due to an improper understanding and implementation of an internal procedure. GCC Dacotah’s
motion notes that it paid the uncontested penalties for the assessments before the contest date.
The Secretary does not oppose the requests to reopen, but urges the operator to take steps to
ensure that future penalty contests are timely filed.
Having reviewed GCC Dacotah’s requests and the Secretary’s responses, we find that the
operator has sufficiently explained its failure to timely contest the citations at issue as the result
of inadvertence, mistake, and excusable neglect. In the interest of justice, we hereby reopen these
matters and remand them to the Chief Administrative Law Judge for further proceedings
pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.
Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

43 FMSHRC Page 62

Distribution (by e-mail):
C. Gregory Ruffennach, Esq.
Counsel for CGG Dacotah, Inc.
1629 K Street, NW, Suite 300
Washington, DC 20036
greg@ruffennachlaw.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
mccracken.john.m@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
gvoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
U.S. Department of Labor
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
garris.melanie@dol.gov

43 FMSHRC Page 63

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 12, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2020-0178-M
A.C. No. 14-01733-512758

v.
CENTRAL SAND CO., INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On June 23, 2020, the Commission received from Central
Sand Co., Inc., (“Central Sand”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on May 18, 2020, and became a
final order of the Commission on June 18. Central Sand’s motion says that its office was short-

43 FMSHRC Page 64

staffed due to Covid 19. The motion was filed five days after the underlying assessment had
become a final order of the Commission.
The Secretary does not oppose the requests to reopen, but urges the operator to take steps
to ensure that future penalty contests are timely filed. Having reviewed Central Sand’s request
and the Secretary’s response, we find that the operator has sufficiently explained its failure to
timely contest the citations at issue as the result of inadvertence, mistake, and excusable neglect.
In the interest of justice, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §
2700.28.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

43 FMSHRC Page 65

Distribution (by e-mail):
Holly Schrag
Assistant Comptroller
Central Sand Co., Inc.
7945 N Broadway
Valley Center, KS 67147
hollys@fremarcorp.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
mccracken.john.m@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
gvoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
garris.melanie@dol.gov

43 FMSHRC Page 66

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 12, 2021

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
SE 2020-0250-M
A.C. No. 40-00166-509672

v.
NYRSTAR TENNESSEE MINES,
STRAWBERRY PLAINS, LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On March 6, 2020, the Commission received from Nyrstar
Tennessee Mines, Strawberry Plains, LLC (“Nyrstar”) a motion seeking to reopen a penalty
assessment that appeared to have become a final order of the Commission pursuant to section
105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on March 6, 2020, and became a
final order of the Commission on April 7. Nyrstar’s motion says that it inadvertently sent the

43 FMSHRC Page 67

notice of contest to MSHA’s payment address in St. Louis, along with partial payment of the
uncontested penalties.
The Secretary does not oppose the requests to reopen, but urges the operator to take steps
to ensure that future penalty contests are timely filed at the correct address. Having reviewed
Nyrstar’s request and the Secretary’s response, we find that the operator has sufficiently
explained its failure to timely contest the citations at issue as the result of mistake, inadvertence,
and excusable neglect. In the interest of justice, we hereby reopen this matter and remand it to
the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

43 FMSHRC Page 68

Distribution (by e-mail):
Donna Vetrano Pryor, Esq.
Husch Blackwell, LLP
1801 Wewatta Street, Suite 1000
Denver, CO 80202
Counsel for Nyrstar Tennessee Mines, Strawberry Plains, LLC
donna.pryor@huschblackwell.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
mccracken.john.m@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
gvoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
garris.melanie@dol.gov

43 FMSHRC Page 69

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 12, 2021

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2020-0141-M
A.C. No. 42-01729-499482

v.
W.W. CLYDE & CO.

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On January 7, 2020, the Commission received from W.W.
Clyde & Co. (“W.W. Clyde”) a motion seeking to reopen a penalty assessment that appeared to
have become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on October 30, 2019, and would
have become a final order of the Commission on December 3, 2019. W.W. Clyde’s motion says

43 FMSHRC Page 70

that was in regular contact with MSHA concerning this assessment, and that it received the
proposed assessment by email on October 17, 2019. The motion says an MSHA employee
helped the operator’s safety director fill out the form over the telephone. The motion says the
operator then mailed the notice of contest via certified mail, return receipt requested, and
includes documentation supporting this claim.
The Secretary does not oppose the requests to reopen, but urges the operator to take steps
to ensure that future penalty contests are timely filed at the correct address. However, it appears
that the operator did in fact submit its notice of contest to the correct address before the proposed
assessment became final. The problem is that the operator returned its notice of contest, having
received it in advance by email, before MSHA had recorded the delivery of its assessment by
certified mail.
Having reviewed W.W. Clyde’s request and the Secretary’s response, we find that the
proposed assessment did not become final because the operator submitted a timely notice of
contest. Thus, the operator has not been properly found to be in default. Accordingly, the
operator’s motion is denied as moot. This case remains open, and is remanded to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

43 FMSHRC Page 71

Distribution (by e-mail):
Nathan Neal
Safety Director
W.W. Clyde and Co.
Orem, UT 84057
nneal@wwclyde.net
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
mccracken.john.m@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
gvoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
garris.melanie@dol.gov

43 FMSHRC Page 72

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 12, 2021

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2020-0473
A.C. No. 46-01544-511969

v.
SPARTAN MINING CO., LLC

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On July 16, 2020, the Commission received from Spartan
Mining Company, LLC (“Spartan Mining”) a motion seeking to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on April 13, 2020, and became a

43 FMSHRC Page 73

final order of the Commission on May 14. Spartan Mining’s motion says that it failed to timely
contest the penalties in this matter due to an internal clerical error. MSHA sent the operator a
delinquency notice on June 29. The operator said that it identified the error after receiving the
notice and contacted counsel to prepare the motion to reopen this matter.
The Secretary does not oppose the request to reopen, but urges the operator to take steps
to ensure that future assessments are timely contested by mailing the forms to the address
provided.
Having reviewed Spartan Mining’s request and the Secretary’s responses, we find that
the operator has sufficiently explained its failure to timely contest the citations at issue as the
result of mistake, inadvertence, and excusable neglect. In the interest of justice, we hereby
reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings
pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.
Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty
within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

43 FMSHRC Page 74

Distribution (by e-mail):
Christopher D. Pence, Esq.
Hardy Pence, PLLC
Attorneys for Spartan Mining Company, LLC
10 Hale Street, 4th Floor
P. O. Box 2548
Charleston, WV 25329-2548
cpence@hardypence.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th Street South, Suite 401
Arlington, VA 22202-5452
mccracken.john.m@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
gvoisin@fmshrc.gov
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
garris.melanie@dol.gov

43 FMSHRC Page 75

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 19, 2021

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2020-0033
A.C. No. 11-01657-500192

v.
LUDWIG EXPLOSIVES, INC.

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On November 20, 2019, the Commission received from
Ludwig Explosives, Inc. (“Ludwig”) a motion seeking to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on September 30, 2019, and

43 FMSHRC Page 76

became a final order of the Commission on October 30, 2019. Ludwig asserts that it had a lay
person (a risk management consultant) handle the contest and that the consultant had filed it
within thirty business days. The Secretary found it was late because it was not filed within thirty
calendar days. The consultant further explains with detail how he has been experiencing a family
medical emergency, which contributed to his confusion about the computation of the deadline. In
addition, he cites to a confirmation of receipt from the Chief Administrative Law Judge
regarding the operator’s notice of contest of the citation, with an order of assignment to an ALJ
(LAKE 2020-0021-RM), as a contributing factor to his confusion. The Secretary does not oppose
the request to reopen, but urges the operator to take steps to ensure that future penalty contests
are timely filed.
Having reviewed Ludwig’s request and the Secretary’s response, we find that the
operator acted with excusable neglect due to the confusion from the separate docket and his
family medical emergency. In the interest of justice, we hereby reopen this matter and remand it
to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order.
See 29 C.F.R. § 2700.28.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

43 FMSHRC Page 77

Distribution (e-mail):
Daniel P. Foltyniewicz,
Ludwig Explosives, Inc.
P.O. Box 5312
Wheaton, IL 60189
Dpf49@aol.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Nelson.April@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@dol.gov

43 FMSHRC Page 78

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 19, 2021

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEVA 2019-0622
A.C. No. 46-09357-481953

v.

Docket No. WEVA 2019-0623
A.C. No. 46-01368-491694

KC TRANSPORT, INC.
BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners
ORDER
BY THE COMMISSION:
These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On August 5, 2019, the Commission received from KC
Transport, Inc. (“KC”) two motions seeking to reopen two penalty assessments that had become
final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
1

For the limited purpose of addressing these motions to reopen, we hereby consolidate
docket numbers WEVA 2019-0622 and WEVA 2019-0623 involving similar issues. 29 C.F.R. §
2700.12.

43 FMSHRC Page 79

good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment for WEVA 2019-0622 was delivered on
January 29, 2019, and became a final order of the Commission on February 28, 2019. MSHA
records also indicate that the proposed assessment for WEVA 2019-0623 was delivered on May
28, 2019, and became a final order of the Commission on June 27, 2019. The operator asserts
that on July 11, 2019, the operator learned from counsel that both proposed assessments were
delinquent. KC asserts that the administrative assistant working at the mine had thought she had
sent the proposed assessments to their counsel, when in fact, she did not. The operator explains
how it has since improved its processing and handling of proposed assessments to make sure this
does not happen again. The Secretary does not oppose the request to reopen, but urges the
operator to take steps to ensure that future penalty contests are timely filed.
Having reviewed KC’s request and the Secretary’s response, we find that the operator
acted with excusable neglect and has taken steps to improve its internal processing systems. In
the interest of justice, we hereby reopen this matter and remand it to the Chief Administrative
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural
Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a
petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §
2700.28.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

43 FMSHRC Page 80

Distribution (e-mail):
James P. McHugh, Esq.,
Hardy Pence, PLLC
10 Hale Street, 4th Floor
P.O. Box 2548
Charleston, WV 25329-2548
JMchugh@hardypence.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Nelson.April@dol.gov
Chief Administrative Law Judge Glynn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@dol.gov

43 FMSHRC Page 81

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 22, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

SE 2020-0251-M
A.C. No. 40-00170-515280

v.
NYRSTAR TENNESSEE MINES,
STRAWBERRY PLAINS, LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On September 18, 2020, the Commission received from
Nyrstar Tennessee Mines, Strawberry Plains, LLC (“Nyrstar”) a motion seeking to reopen a
penalty assessment that appeared to have become a final order of the Commission pursuant to
section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 11, 2020, and became a

43 FMSHRC Page 82

final order of the Commission on July 13. Nyrstar’s motion says that it inadvertently sent the
notice of contest to MSHA’s payment address in St. Louis, along with partial payment of the
uncontested penalties. MSHA received payment of $123 for the uncontested penalties on June
29. The agency says it sent the operator a delinquency notice on August 26.
The Secretary does not oppose the requests to reopen, but urges the operator to take steps
to ensure that future penalty contests are timely filed at the correct address. Having reviewed
Nyrstar’s request and the Secretary’s response, we find that the operator has sufficiently
explained its failure to timely contest the citations at issue as the result of mistake, inadvertence,
and excusable neglect. In the interest of justice, we hereby reopen this matter and remand it to
the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

43 FMSHRC Page 83

Distribution (by e-mail):
Donna Vetrano Pryor, Esq.
Husch Blackwell, LLP
Counsel for Nyrstar Tennessee Mines, Strawberry Plains, LLC
1801 Wewatta Street, Suite 1000
Denver, CO 80202
Donna.Pryor@huschblackwell.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@dol.gov

43 FMSHRC Page 84

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 22, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

SE 2021-0024-M
A.C. No. 01-02901-520230

v.
PEABODY SOUTHEAST MINING, LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On November 12, 2020, the Commission received from
Peabody Southeast Mining, LLC (“Peabody”) a motion seeking to reopen a penalty assessment
that appeared to have become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on August 24, 2020. On
September 14, the penalty for the citation at issue in this motion was inadvertently paid along
with 26 other assessments. The proposed assessment would have become a final order on

43 FMSHRC Page 85

September 23. Peabody’s motion, and a supporting affidavit, say that it inadvertently paid the
penalty upon the recommendation of a company official to pay all 27 assessments. The operator
did not note that the proposed assessment included a citation it wished to conference in
connection with an ongoing dispute about a section 104(b) order for failure to abate the violation
cited by the assessment at issue here. It requests that the Commission reopen both the
mistakenly-paid citation and the associated section 104(b) order. The Secretary does not oppose
the requests to reopen, but urges the operator to take steps to ensure that future penalty contests
are timely filed.
Having reviewed Peabody’s request and the Secretary’s response, we find that the
operator has sufficiently explained its failure to timely contest the citations at issue as the result
of mistake, inadvertence, and excusable neglect. In the interest of justice, we hereby reopen this
matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant to
the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

43 FMSHRC Page 86

Distribution (by e-mail):
Arthur M. Wolfson, Esq.
Fisher & Phillips, LLP
Counsel for Peabody Southeast Mining, LLC
6 PPG Place, Suite 830
Pittsburgh, PA 15222
AWolfson@fisherphillips.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@dol.gov

43 FMSHRC Page 87

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 22, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

VA 2020-0057-M
A.C. No. 44-02783-513669

v.
LIMESTONE DUST CORP.
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On August 3, 2020, the Commission received from Limestone
Dust Corp. (“LDC”) a motion seeking to reopen a penalty assessment that appeared to have
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on May 7, 2020, and became a
final order of the Commission on June 8. LDC’s motion states that it timely completed the
contest form and emailed it to an attorney in a law firm with which it had previously worked.

43 FMSHRC Page 88

That attorney, however, was away from the firm. It appears, therefore, that the failure to file
resulted from a miscommunication by email during the pandemic and was corrected immediately
upon discovery. We urge operators and representatives to take proper measures to assure
adequate communications during this challenging period.
The Secretary does not oppose the requests to reopen, but urges the operator to take steps
to ensure that future penalty contests are timely filed. Having reviewed LDC’s request and the
Secretary’s response, we find that the operator has sufficiently explained its failure to timely
contest the citations at issue as the result of mistake, inadvertence, and excusable neglect. The
operator diligently followed up on the contest, and the motion was quickly filed and is welldocumented. In the interest of justice, we hereby reopen this matter and remand it to the Chief
Administrative Law Judge for further proceedings pursuant to the Mine Act and the
Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

43 FMSHRC Page 89

Distribution (by e-mail):
Diana R. Schroeher, Esq.
Law Office of Adele L. Abrams, PC
Counsel for Limestone Dust Corp.
4740 Corridor Place, Suite D
Beltsville, MD 20705
DSchroeher@aabramslaw.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@dol.gov

43 FMSHRC Page 90

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 22, 2021

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

WEVA 2021-0025-M
A.C. No. 46-08984-516627

v.
COAL-MAC, LLC
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On November 12, 2020, the Commission received from CoalMac, LLC (“Coal-Mac”) a motion seeking to reopen a penalty assessment that appeared to have
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. §
815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure, under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on June 25, 2020, and became a

43 FMSHRC Page 91

final order on July 27. The operator had conferenced the underlying citation unsuccessfully, and
timely contested the citation. The motion states that when the operator received the proposed
assessment, it believed the matter was already in litigation. The Secretary does not oppose the
requests to reopen, but urges the operator to take steps to ensure that future penalty contests ae
timely filed.
Having reviewed Coal-Mac’s request and the Secretary’s response, we find that the
operator has sufficiently explained its failure to timely contest the citations at issue as the result
of mistake, inadvertence, and excusable neglect. In the interest of justice, we hereby reopen this
matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant to
the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

43 FMSHRC Page 92

Distribution (by e-mail):
Mark E. Heath, Esq.
Spilman, Thomas and Battle, PLLC
Counsel for Coal-Mac, LLC
300 Kanawha Blvd., East
P.O. Box 273
Charleston, WV 25321
MHealth@spilmanlaw.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Avenue, NW, Suite 520N
Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@dol.gov

43 FMSHRC Page 93

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

January 25, 2021

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. WEST 2021-0015
A.C. No. 24-00839-504839

v.
DECKER COAL CO.
BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On October 22, 2020, the Commission received from Decker
Coal Co. (“Decker Coal”) a motion seeking to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).
We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of
Civil Procedure under which the Commission may relieve a party from a final order of the
Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying
relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also
observed that default is a harsh remedy and that, if the defaulting party can make a showing of
good cause for a failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995).
Records of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) indicate that the proposed assessment was delivered on December 10, 2019, and
became a final order of the Commission on January 13, 2020. In its motion to reopen, Decker
Coal states that it would “love to give a list of viable excuses” for not timely contesting the
proposed assessment here, but states instead that the matter simply “fell through the cracks” and

43 FMSHRC Page 94

that the operator “forgot” about it. The Secretary does not oppose the request to reopen, but
notes that a delinquency notice was mailed to the operator on February 24, 2020. Decker Coal
provides no excuse for not filing its motion to reopen until nearly eight months after the
delinquency notice was mailed. Instead, the operator suggests that due to the involvement of a
third party, it is “between a roc and a hard place.” .
Due to the extraordinary nature of reopening a penalty that has become final, the operator
has the burden of showing that it should be granted such relief through a detailed explanation of
its failure to timely contest the penalty and any delays in filing for reopening. The Commission
considers the entire range of factors relevant to determining mistake, inadvertence, excusable
neglect, or other good faith reason for reopening.
“We have repeatedly and unequivocally held that a failure to contest a proposed
assessment as a result of an inadequate or unreliable internal processing system does not
establish grounds for reopening an assessment.” Lone Mountain Processing, Inc., 35 FMSHRC
3346 (Nov. 2013, citing Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011). “Further, we
have emphasized the importance of the operator’s explanation of the time it took to file for
reopening after receipt of a notice of delinquency.” Id., citing Highland Mining Co., 31 FMSRC
1313, 1315-16 (Nov. 2009).

43 FMSHRC Page 95

This requirement is grounded in the requirement in Rule 60(c) of the Federal Rules of
Civil Procedure, which provides that a Rule 60(b) motion shall be made “within a reasonable
time.” In the present case, the operator offers literally no excuse for its failure, which suggests
that its internal procedures are inadequate to ensure that contests are timely filed, or to determine
what has gone wrong when they are not. The operator also did not act to cure its delinquency for
nearly eight months after the Secretary claims, in an assertion that Decker Coal has not rebutted,
that it sent a delinquency notice to the operator. That failure, too, is unexplained. We cannot find
that the motion was made within a “reasonable time” without an explanation for the
extraordinary delay, and cannot find good cause when none is offered as an excuse.
Accordingly, we deny Decker Coal’s motion.

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Chair

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Commissioner

43 FMSHRC Page 96

Distribution (by e-mail):
Don Kollekowski
Manager of Safety and Health
Decker Coal Co.
P.O. Box 12
Decker, MT 59025
Don.K@aecoal.com
John M. McCracken, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
McCracken.John.M@dol.gov
April Nelson, Esq.
Office of the Solicitor
U.S. Department of Labor
Mine Safety and Health Division
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Nelson.April@dol.gov
Chief Administrative Law Judge Glenn Voisin
Federal Mine Safety & Health Review
Commission 1331 Pennsylvania Avenue, NW,
Suite 520N Washington, DC 20004-1710
GVoisin@fmshrc.gov
Melanie Garris
U.S. Department of Labor
Office of Civil Penalty Compliance
Mine Safety and Health Administration
201 12th Street South, Suite 401
Arlington, VA 22202-5452
Garris.Melanie@dol.gov

43 FMSHRC Page 97

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9956 / FAX: 202-434-9949

January 13, 2021
JONES BROTHERS INC.,
Contestant,

CONTEST PROCEEDINGS
Docket No. SE 2016-0218-RM
Citation No. 8817595; 04/06/2016

v.
Docket No. SE 2016-0219-RM
Citation No. 8817596; 04/06/2016
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent.
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

Mine: S.R. 141 Project, Dekalb Co.
Mine ID: 40-03454

CIVIL PENALTY PROCEEDING
Docket No. SE 2016-0246
A.C. No. 40-03454-410595

v.
JONES BROTHERS INC.,
Respondent.

Mine: S.R. 141 Project, Dekalb Co.

ORDER GRANTING IN PART THE SECRETARY’S MOTION IN LIMINE
AND INSTRUCTIONS FROM THE COURT
On January 11, 2021, the Secretary of Labor (“Secretary”) filed an Objection to the
Scope of Expected Testimony and Motion in Limine (“Secretary’s Motion”) where the Secretary
objected to the expected testimony of Respondent’s witnesses Martin McCullough, Kevin
Hinson, Anthony Williams, Joey Odom, Ben Coleman, and Steve Wright as “irrelevant and
impermissibly exceed[ing] the scope of testimony permitted by lay witnesses,” and further
objected to the expected testimony of Wright as not expert testimony. Sec’y Mot. at 2.
After reviewing the filing and Respondent’s list of witnesses, the court will permit
McCullough, Hinson, Williams, Odom, Coleman, and Wright to testify as fact witnesses.
However, Wright will not be permitted to testify as an expert.

43 FMSHRC Page 98

Respondent has described the scope of Wright’s proposed testimony as follows:
For nearly 40 years [Wright] has seen and operated borrow pits
similar to what Jones Bros. did at the SR-141 job to produce solid
graded rock in Tennessee and other states and although MSHA
would be aware of these borrow pits, on both private land near a
road project right of way or on the right of way itself, MSHA never
sought to exercise jurisdiction over them unless the rock was being
processed substantially more than by use of a slotted bucket. Mr.
Wright may offer both factual and expert testimony concerning
how the Interagency Agreement has been interpreted and/or
applied.
Witness List for Jones Brothers, Inc. at 3. Wright does not qualify as an expert, per Rule 702 of
the Federal Rules of Evidence, which states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. Wright’s purported knowledge of borrow pits unrelated to this matter and
prior MSHA enforcement practices will not help this Court “understand the evidence or
determine a fact in issue”—specifically whether Respondent’s operation falls under the
jurisdiction of the Mine Act in this specific instance. Further, Wright’s proposed testimony
consists of legal conclusions, including that “MSHA never sought to exercise jurisdiction . . .
unless the rock was being processed substantially more than by use of a slotted bucket” and
testimony regarding “how the Interagency Agreement has been interpreted and/or applied.”
Witness List for Jones Brothers, Inc. at 3. “Expert testimony that consists of legal conclusions” is
not admissible under Rule 702 because it “cannot properly assist the trier of fact” in
“understand[ing] the evidence” or “determin[ing] a fact in issue.” Burkhart v. WMATA, 112 F.3d
1207, 1212 (D.C. Cir. 1997). Therefore, this Court will not permit Wright to testify as an expert.
Additionally, the parties have submitted proposed exhibits in this matter. The Court has
reviewed the documents and issues the following guidelines with respect to introduction of

43 FMSHRC Page 99

exhibits at trial. The Secretary has submitted what is identified as exhibit S-26, which is the 86page contract between the Tennessee Department of Transportation and Respondent. The
document contains many pages of information pertaining to the hiring of illegal immigrants,
prevailing wage pay scales and classification of workers, fuel adjustment worksheet forms
(blank), non-discrimination provisions, certificate of liability insurance forms, surety bond forms
(unsigned), information regarding traffic control, road markings and signage, and other
extraneous information. The Secretary is directed to redact any extraneous pages not intended for
use at trial from the exhibit before offering it into evidence. Similarly, any drawings contained in
exhibit S-27 that the Secretary does not intend to rely on shall be redacted from the exhibit when
offered at trial.
Respondent has submitted exhibit R-1, which is a copy of responses provided by the
Secretary to propounded discovery. My Prehearing Order specifically states that discovery
responses shall not be submitted to the Court. Additionally, the Court finds, as it did with respect
to the Secretary’s proffer of deposition transcripts, that it is not proper to offer the document as
an exhibit in the Respondent’s case in chief. It may be used by the parties for refreshing
recollection, past recollection recorded, and for impeachment.
The Court recognizes that the Respondent has not submitted any proposed witnesses to
testify to the underlying violations cited against it. The Court informed the parties at the
inception of this matter that the hearing would encompass the jurisdiction issue as well as an
adjudication of all related violations. The Respondent is directed to either inform the Court
whether it intends to accept the violations as written, or confirm that they are prepared to litigate
the violations at the January 26, 2021 hearing. This matter will not be bifurcated.
It is so ORDERED this thirteenth day of January 2021.

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge

Distribution:
Willow Eden Fort, Attorney, Office of the Solicitor, 618 Church Street, Suite 230 Nashville, TN
37219 (Fort.Willow@dol.gov)
Michael D. Oesterle, Esq., KING & BALLOW, 1100 Union Street Plaza 315 Union Street
Nashville, TN 37201 (moesterle@kingballow.com)
Douglas R. Pierce, Esq., KING & BALLOW, 1100 Union Street Plaza 315 Union Street
Nashville, TN 37201 (dpierce@kingballow.com)

43 FMSHRC Page 100