November 2021
TABLE OF CONTENTS

ADMINISTRATIVE LAW JUDGE DECISIONS
11-09-21

SOLVAY CHEMICALS, INC.

WEST 2020-0278-M

Page 477

ADMINISTRATIVE LAW JUDGE ORDERS
11-19-21

RIVER CITY STONE-DIV/MATHY
CONSTRUCTION CO

LAKE 2021-0145

Page 503

11-19-21

CRIMSON OAK GROVE
RESOURCES LLC

SE 2021-0112

Page 505

11-19-21

CRIMSON OAK GROVE
RESOURCES LLC

SE 2021-0134

Page 507

11-19-21

GREENBRIER MINERALS, LLC

WEVA 2021-0294

Page 509

11-19-21

HOLCIM (US) INC.

YORK 2021-0023

Page 513

i

No Review was Granted or Denied During the Month of November 2021

ii

ADMINISTRATIVE LAW JUDGE DECISIONS

43 FMSHRC Page 476

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19th STREET, SUITE 443
DENVER, CO 80202-2536
303-844-3577 FAX 303-844-5268

November 9, 2021
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2020-0278-M
A.C. No. 48-01295-511817

v.
SOLVAY CHEMICALS, INC.,
Respondent

Solvay Chemicals
DECISION

Appearances:

Francesca Cheroutes, U.S. Department of Labor, Office of the Solicitor,
Denver, Colorado for Petitioner;
Erik Dullea, Husch Blackwell, LLP, Denver, Colorado for Respondent.

Before:

Judge Manning
I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Solvay
Chemicals Inc. (“Solvay”) pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties presented testimony
and documentary evidence at a video conference hearing and filed post-hearing briefs and
replies. Citation No. 9475179, alleging a violation of section 50.10(b), was adjudicated at the
hearing.1 For reasons set forth below, I AFFIRM the citation but modify the degree of
negligence to moderate.
Although I have not included a detailed summary of all evidence or each argument raised,
I have fully considered all the evidence and arguments. The findings of fact are based on the
record as a whole and my careful observation of the witnesses during their testimony.

1

This docket also contained Citation No. 9475178. On July 14, 2021, the Secretary
agreed to vacate that citation so it is no longer at issue in this case.

43 FMSHRC Page 477

II. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
Solvay operates the Solvay Chemicals Mine (the “mine”), an underground trona mine in
Sweetwater County, Wyoming. On January 31, 2020, Delbert Hauser2, an underground miner
employed by Solvay, was assigned to operate the 6 Bore Miner (the “bore miner”3) during the
day shift.4 Tr 122. At some point during the shift a shear pin at the front of the bore miner broke.
Tr. 125. In response, Hauser backed up the bore miner to where he could see a roof bolt in front
of the machine.5 Tr. 125, 152. Hauser then gathered his tools, went to the front of the machine,
and attempted make the repair. Tr. 126. After Hauser struggled with the repair work for some
time, Shane Dodge,6 one of the other crew members in the area, asked if he could help. Tr. 126.
Hauser got down off the bore miner and Dodge crawled up to begin working on the shear pin. Tr.
127, 197-199.
Shortly after Hauser crawled down off the machine there was a sound from above and a
fall of roof struck him.7 Tr. 127. Hauser did not see the size of the roof fall that hit him but knew
that a large slab of the roof struck him, knocked off his hardhat and drove him face first into the
ground before a second, smaller rock hit him directly in the head.8 127-128. Dodge, who heard
but did not see the roof fall, turned and saw Hauser, without his hardhat, laying on the ground,

2

Hauser worked at Solvay for over 11 years. Tr. 121.

3

Bore miners, which are akin to continuous mining machines found in underground coal
operations, are used to cut material at the face. Solvay uses bore miners and longwalls to cut all
material in the mine. Tr. 18. The bore miner in question had cutting heads on the front, top,
bottom and sides of the machine.
4

The other crew members included the foreman, Neil Mattinson, as well as Wendalle
Boyd, Shane Dodge, Dave Acosta, and Troy Sinclair. Tr. 126, 197.
5

At hearing, the witnesses offered conflicting testimony as to whether the roof in front of
the parked bore miner was bolted or unbolted. However, for purposes of this decision, I need not
resolve the conflict.
6

Dodge has 16 years of underground mining experience, previously was a member of a
mine rescue team, and has received first aid training. Tr. 196.
7

Although it was Solvay’s policy for miners to not work under unsupported roof and to
bar down loose material that was observed, Hauser testified that roof conditions were always a
“big issue” in the mine. Tr. 123-124, 143, 146.
8

At the hearing Hauser testified that the second rock “rang [his] bell pretty good,” but he
could not recall whether he lost consciousness. Tr. 128

43 FMSHRC Page 478

pushing rocks off him and beginning to get up.9 Tr. 199, 209. At hearing, Dodge testified that
Hauser appeared “kind of, dazed and confused” as he stood up. Tr. 199. Dodge observed that
Hauser had a two-inch cut on the back of his head that would need stitches, a torn shirt, and a
“light abrasion, scratch” on his back. Tr. 199-200. According to Dodge, Hauser repeatedly stated
that he was alright when asked. Tr. 199.
At the time of the roof fall Neil Mattinson,10 the production foreman for the crew, and
Wendalle Boyd,11 a crew member, were positioned at the rear of the bore miner. Tr. 215, 257.
Both heard the roof fall, but neither saw it.12 Tr. 216, 258, 280, 298. While walking toward the
front of the bore miner Boyd could see Hauser picking himself up off the ground. Tr. 216.
Mattinson and Boyd observed that Hauser had a cut on his head and was bleeding. Tr. 216, 258,
277. In response, Mattinson and Boyd went to retrieve the first aid kit from the lunch niche. Tr.
216, 260-261, 278. Meanwhile, Dodge assisted Hauser along the side of the bore miner to the
rear. Tr. 200.
After helping Boyd gather the necessary first aid supplies Mattinson called the hoistman
from the lunch niche to tell him that Hauser had “possibly [been] struck by a rock,” had blood on
his face, and an ambulance was needed at the collar.13 Tr. 259-260, 278-281. Mattinson testified
that at the time he spoke with the hoistman he did not knew where Hauser had been hit but based
on the blood on Hauser’s face, he would probably need to go to the hospital for stitches. Tr. 279,
281. On cross-examination Mattinson testified that the closest he got to Hauser before calling the
hoistman was 30 feet and agreed that he did not know the seriousness of the injury at that time.
Tr. 282. Mattinson told the hoistman that he would update him if anything new developed. Tr.
265. While Mattinson was on the call, Boyd returned to the last open crosscut, where he met
Dodge and another crew member that had helped Hauser into a mantrip. Tr. 200-201, 216-217.
The crew members bandaged Hauser’s head and asked questions to ensure he was
coherent. Tr. 202, 217. Dodge, Boyd and Mattinson all testified that Hauser was coherent and
refused, multiple times, to be placed on a backboard, but did accept an ice pack to place on his
9

Although Dodge speculated that the rock that fell “hinged” and did not directly strike
Hauser, he also conceded that he did not see the rock fall out of the roof or how it struck Hauser.
Tr. 199, 204, 207.
10

Mattinson has worked at Solvay for 26 years and has been a mine operations foreman
for 8 years. As mine operations foreman he monitors a crew and is responsible for doing
workplace examinations at the start of every shift. Tr. 254.
11

Boyd, a shuttle car operator and bolter operator, has 23 years of mining experience and
had been with Solvay for approximately one and a half years at the time in question. Tr. 213.
12

Mattinson testified the fall sounded “normal” and “like nothing really of significance.”
Tr. 259. However, on cross-examination he conceded that, having since learned the dimensions
of the rock that fell, the sound he heard made him think the roof fall was smaller than it actually
was. Tr. 277-291-292.
13

The collar is where the hoist exits the mine at the surface.

43 FMSHRC Page 479

eye, which had begun to swell. Tr. 202, 204, 210, 218, 263-264, 284. Hauser also refused to be
placed in a “c-collar.” Tr. 202-203, 218, 263. Notably, although Mattinson stated that he did not
know if Hauser had a head or neck injury, he nevertheless testified that Dodge told him that
Hauser had been hit on the back of the head, and that any time a miner is hit in the head or back
they should be put on a backboard. Tr. 287-289. According to Mattinson, he did not believe
Hauser was in shock because Hauser was talking, answering questions, breathing normal, was
not panicking, and his skin appeared normal. Tr. 294-295. However, Mattinson conceded that he
did not have much experience with serious accidents and had never had to treat one. Tr. 295-296.
At hearing, Hauser convincingly testified that he had little memory of events after he was
moved to the side of the bore miner and did not recall being asked if he wanted a backboard.
129-132. Based upon his years of experience on the mine rescue and first aid teams, Hauser
knew that he was starting to go into shock due to faster breathing and a decreasing lack of
awareness as to what was going on around him. Tr. 130, 132-133. Moreover, although he was not
sure if anything was broken, Hauser knew he had blood on the back of his head, his back hurt,
his right eye was swelling so much that he could not see out of it, and the other eye was full of
blood and dirt.14 Tr. 129-130.
Hauser, Mattinson, and Dodge traveled in the mantrip to the hoist – a trip which takes
between 20 and 30 minutes - where Hauser, under his own power, walked onto the hoist, rode
three to five minutes to the collar, exited the hoist and walked to Solvay personnel waiting on the
surface.15 Tr. 203-204, 226, 265-267. Hauser testified that, although he remembers the mantrip
making a beeping sound as they traveled to the hoist, he does not remember walking to the
vehicle or where he sat in the vehicle and has no recollection of getting off the hoist or seeing
anyone at the collar. Tr. 134, 153.
According to Mattinson, despite nothing preventing him from doing so, he never
provided additional information to the hoistman regarding Hauser’s condition because the
hoistman never asked and Mattinson thought the injuries required only first aid and possibly
some staples.16 Tr. 265, 281-282, 284, 286. At hearing, Dodge testified that he did not think
Hauser’s injuries were severe, and that “everything was normal as if he just . . . got mildly
hurt[.]” Tr. 210.
14

Hauser opined that, based on his experience on the mine rescue and first aid teams, if
he had done an assessment of someone in his situation, he would have notified the hoistman and
requested a life flight. Tr. 133. According to Hauser, a patient, especially one with a head injury,
does not have control of the situation. Tr. 133-134. Moreover, Hauser stated that he should have
been placed on a backboard given that the rock hit him on the head and back. Tr. 134.
15

Mattinson testified that Tyler Hanks met the group at the bottom of the hoist. Tr. 285.
According to Mattinson, between the time the group arrived at the bottom of the hoist and
Hauser’s departure for the hospital, he told Hanks everything he knew about the incident. Tr.
285-286.
16

Mattinson likened the injuries to those a child would suffer in bike crash which
required a wound to be cleaned, bandaged, and possibly stitched if it was deep enough. Tr. 287.

43 FMSHRC Page 480

Shawn Marshall,17 the mine operations manager, was on the surface when he was notified
by safety personnel that Hauser had been hit by a rock. Tr. 157-158, 175. On cross-examination
Marshall agreed that the safety personnel did not say what size rock hit Hauser, nor did Marshall
ask. Tr. 175. Marshall contacted the hoistman for more details and was told that Hauser had been
hit, had cuts on his eye and the back of his head, and was being brought out. Tr. 159, 176.
Marshall testified that the hoistman relied on the crew and foreman to determine the actual extent
of the injuries but acknowledged that none of the crew were first aid responders. Tr. 176-177.
According to Marshall, he knew that the roof fall was not substantial, i.e., did not fall from above
the anchorage point, because it would have been relayed to him differently. Tr. 158. Rather, he
figured there had been a delamination of trona that fell and hit Hauser. Tr. 158. At some point
Marshall told Jamie McGillis,18 who was also on the surface, that Hauser had been injured and
she should go to the collar. Tr. 224-225, 231.
Michael Crum,19 the mine’s Health, Safety, Environment and Quality Manger, was on the
surface when he was notified by someone sometime between 11:10 and 11:30 AM that Hauser
had been injured and was being brought out of the mine. Tr. 300, 304, 343. On the day in
question, he was individual responsible for making the decision whether to immediately notify
MSHA of any injury. Tr. 180, 337-338. After leaving his office, Crum received an update and
learned that Hauser had been hit by a piece of rock from the roof, had a laceration on his head,
but was conscious and coherent. Tr. 305. While waiting for another update, Crum gathered his
safety gear and headed to the collar. Tr. 307. At the hearing, Crum testified that even though he
knew the rock that hit Hauser was loose material that fell from the roof, he did not know the size
of the rock or whether it was more than one rock. Tr. 343-344.
Marshall, McGillis and others were at the collar when the hoist cage arrived at the
surface. Tr. 160-161, 226, 267. According to Marshall, Hauser walked off under his own power
toward the ambulance while some of the crew members held a light grip on his arms.20 Tr. 160161. Despite a black eye, a cut near his eye, and a bandage on his head, Marshall’s impression
was that Hauser was in good overall condition but would probably need stitches. Tr. 162, 167.
17

Marshall has been with Solvay for 25 years and has been active in the mining industry
for 33 years. Tr 155-156. Marshall was not a member of the mine’s rescue team at the time in
question but served on the team for approximately 10 years at one point and was trained in first
aid. Tr. 156.
18

McGillis was an underground utility worker, as well as the first aid person on the
mine’s rescue team. Tr. 162, 225. She had been with Solvay for 30 years prior to her retirement
between the time the events occurred and the time of the hearing. Tr. 222-223. McGillis was
trained in first aid and certified in CPR. Tr. 223.
19

Crum has worked at Solvay for approximately two years but has 27 years of mining
experience. Tr. 301. In his job, he manages three departments, including the mine’s safety
department. Tr. 302.
20

Marshall acknowledged that, had a backboard been used, that would have an indication
Hauser was in severe trouble. Tr. 184. However, according to Marhsall that was not the case and
Hauser walked out of the hoist cage on his own. Tr. 184.

43 FMSHRC Page 481

Marshall explained that he did not try to find out the size of the rock because he did not need to
do so at that time. Tr. 185. He testified that, based on what he observed, Hauser was not going to
“succumb to the injuries” and the information regarding the size of the rock could be gathered
during the mine’s preliminary internal investigation. Tr. 184-185.
McGillis saw that Hauser’s head had been bandaged and he had an eye injury that was
not bandaged. Tr. 226. As a result, she treated his injuries as a head injury. Tr. 233. However,
because of the bandage, she never saw the laceration on the back of Hauser’s head. Tr. 234, 237.
McGillis briefly spoke to Hauser at the collar and determined he was coherent and able to
understand what was going on. Tr. 227. She then helped load Hauser into the waiting ambulance
and traveled with him to the local hospital. Tr. 224. At hearing, McGillis agreed that head injuries
can be serious, and in some cases potentially fatal, and it would have made a difference to her
what size rock hit Hauser, whether he was hit by more than one rock, and whether his hard hat
was knocked off and he was hit on the bare head with rocks. Tr. 231-232, 238-239, 245-246.
However, according to McGillis, she never learned how large the rock was and did not recall if
she asked Hauser how large the rock was. Tr. 232.
On the way to the hospital McGillis looked Hauser over head to toe, took his vitals,
washed the eye injury, which was swollen and bleeding, administered oxygen, measured blood
pressure, asked questions, and observed his demeanor. Tr. 227, 232-234. According to McGillis,
aside from complaining about the cut on his head bothering him, Hauser mentioned no other
injuries and showed no signs of internal injury or shock during the ride. Tr. 229-230. However,
on cross-examination McGillis conceded that she thought he was “in some degree of shock.” Tr.
233-234.
Crum arrived at the collar after the ambulance had departed. Tr. 307, 313-314. When
asked about the injuries, Marshall told Crum that that Hauser was walking, talking, and coherent.
Tr. 308. Crum testified that at that time he was aware Hauser had a laceration to his head, as well
as some scrapes and bruising to his face, and believed Hauser would only need stitches and then
he would be back at work as soon as the stitches were removed. Tr. 308, 314. Based on the
information they had, Marshall and Crum agreed that that the injuries were not that severe and
Hauser was going to be fine. Tr. 167, 308. According to Crum, at no point was there a discussion
about a deep penetrating head wound, internal injuries, or abdominal injuries. Tr. 314.
Once at the hospital, Hauser received a CT scan of his head that revealed his orbital right
eye socket was shattered. Tr. 135. Hospital personnel stapled shut the wound on the back of
Hauser’s head but were unable to suture the area around his eye. Tr. 135.
Marshall visited Hauser in the hospital and took photos of the cuts to Hauser’s face and
back of his head. Jt. Ex. 25 pp. 2, 3. Marshall was not present when the doctors examined
Hauser. However, at Crum’s instruction, Marshall asked one of the doctors whether Hauser’s
injuries were life threatening, to which, according to Marshall, the doctor responded that they
were not. Tr. 173, 317. Marshall then relayed this information to Crum. Tr. 349. According to

43 FMSHRC Page 482

Crum, it was not until Marshall contacted him that he became aware Hauser had fractured orbital
bones.21 Tr. 314-315.
Meanwhile, back at the mine following Hauser’s departure, Mattinson, along with Tyler
Hanks, the shift foreman, traveled underground to conduct a preliminary investigation of the
incident, during which they measured the rock that fell. Tr. 208, 269, 286; Jt. Ex. 31. Although
the rock had broken into smaller pieces, Hanks was able to measure the void from which it fell
and determined that the rock was approximately five feet wide, by ten feet long, by one to three
inches thick. Tr. 208, 269, 291-292; Jt. Ex. 31. Mattinson testified that Hanks spent
approximately 15 to 20 minutes in the area completing the investigation. Tr. 291. According to
Mattinson, the rock that fell was mainly trona, which is “very dense. . . [and] way harder than
coal[,]” with a thin layer of shale. Tr. 298-299. At some point that afternoon Hanks informed
Mattison that the investigation was complete, and mining could resume in the area. Tr. 208, 271.
Hauser was eventually released from the local hospital the same day and taken by
ambulance to the University of Utah Hospital in Salt Lake City, where a surgical specialist
sutured the area around his eye. Tr. 135-136. However, due to swelling, surgery to correct the
fractured eye socket could not be completed that day. Tr. 138. As a result, Hauser was again
released, but returned a week later for the procedure. Tr. 138.
Hauser has been disabled since the events at issue in this proceeding and is currently on
long term disability. Tr. 121; Jt. Stip. 16. At hearing, he explained that since being struck by the
rock he has suffered from a number of ailments, including a constant migraine, occasional
nausea, double vision in one eye, short term memory loss, neuropathy in his fingers, dizziness
and balance issues, decreased peripheral vision, and PTSD. Tr. 138-139, 143. Further, as a result
of the injuries suffered, Hauser now walks with a cane, is unable to watch TV for more than a
short period of time, drives less, and spends a significant amount to time sitting in the dark. Tr.
138-139.
On February 1, the day following the incident, MSHA inspector Rodney Gust22 traveled
to the mine to investigate an anonymous complaint alleging that there had been an injury due to a
fall of roof. Tr. 19. When Gust arrived, he was told that the miner, Hauser, had been struck by
loose material in the 6 Bore Miner Panel, but was doing well after having gone to the hospital.
Tr. 33. Gust learned that the miner had been struck on the head, had a cut on the back of his head,
swelling around his right eye, and possibly some scrapes and cuts on his back. Tr. 55-56.

21

Crum offered a great deal of testimony regarding Solvay’s internal process for
evaluating the severity of injuries, as well as the forms and guidance relied upon during that
process. Tr. 311-317; Jt. Ex. 13.
22

Inspector Gust has been with MSHA for close to 20 years. Tr. 12. During that time, he
has held positions including inspector, supervisory inspector, district safety specialist, accident
investigator coordinator, and staff assistant to the district manager. Tr. 12-13. He has
investigated between 30 and 40 serious or fatal accidents, some of which involved roof falls. Tr.
14-15.

43 FMSHRC Page 483

Gust traveled to the 6 Bore Miner Panel but, because the scene of the incident had not
been preserved, was unable to measure the material that had fallen from the roof. Tr. 23, 34-36,
50. However, according to Gust it was obvious from where the rock had fallen due to the
impression that remained in the roof nine feet above the ground. Tr. 35-36, 52. Gust measured
the impression in the roof from which the rock had fallen and estimated that the size of the rock
was approximately twelve and half feet long, by five feet wide, by one to three inches thick. Tr.
35-37. Gust estimated that a rock of that size would weigh approximately 800 to 900 pounds.23
Tr. 63.
Gust, through interviews, determined that no one saw the roof fall strike Hauser. Tr. 3739, 41. Although mine personnel told Gust they believed the rock hinged underneath a bolt plate,
swung and hit Hauser, he disagreed. Tr. 43. Gust testified that, in his experience, rocks do not
hinge and go sideways. Tr. 44, 47. Moreover, the impression in the roof he measured was
nowhere near a bolt plate. Tr. 47.
Gust opined that the cited standard requires mine operators to quickly and prudently
investigate both the injury itself and the mechanism that caused the injury and, if necessary,
notify MSHA within 15 minutes after management becomes aware of the injury. Tr. 25, 29-30.
He explained that depending on where a rock strikes a miner there can be severe injuries,
including injuries that have a reasonable potential to cause death. Tr. 15. According to Gust,
concussions and blunt force trauma to the head, neck and upper torso body areas are the types of
injuries that have a reasonable potential to cause death.24 Tr. 25-28. Consequently, consideration
must be given to the mechanism of a large slab or rock falling and striking an individual on the
head, neck and back. Tr. 27. Gust agreed that some falls of roof are small enough that they do not
cause much damage and do not need to be immediately reported. However, here, given the size
of the rock as determined by measuring the impression and estimating the weight, the height
from which it fell, and the fact that the miner had lacerations and took a severe blow to the back
of the head and the face, Gust determined that there was a reasonable potential to cause death. Tr.
57, 63, 66-67. According to Gust, severe blows to the head can result in brain swelling, which
has the reasonable potential to cause death. Tr. 57. Because no one witnessed the incident, Gust
was unable to definitively determine if the rock grazed the miner or directly struck him. Tr. 63.
However, given the severity of the injuries sustained, as well as Gust’s familiarity with similar
accidents that ended up in fatalities,25 he determined that the incident was immediately
reportable. Tr. 63-64. Gust explained that, when an operator is not sure of the extent of an injury,
they should report it to MSHA. Tr. 30.
23

Gust testified that, even if he were to use the mine’s measurements of the rock, the
rock would have still weighed 800 pounds. Tr. 67.
24

Gust explained that when a concussion occurs one cannot know the severity right
away, nor can one know the short-term or long-term effects of the injury. Tr. 26.
25

Gust testified that he was aware of a fatality at another mine where loose material fell
from the roof, struck a miner, and drove them to the ground. Tr. 14-15, 64. In that instance the
miner passed while being transported to the hospital. Tr. 64. In a separate matter at another mine
an individual was struck by a piece of rock smaller than what fell here and the miner made it to
the hospital before dying from their injuries weeks later. Tr. 64.

43 FMSHRC Page 484

Gust explained that the purpose of 50.10 is to prevent accidents and injuries. Tr. 31. If the
incident had been properly reported, the scene would have been preserved and MSHA could
have gone to the 6 Bore Miner Panel and found other loose roof that needed to be scaled or
supported, thereby preventing miners from being further exposed to potential injury.26 Tr. 31-32.
According to Gust, notification prevents injuries not only at the mine in question, but also
similarly situated mines. Tr. 32.
On February 4, based upon what he observed and learned during his investigation, Gust
issued Citation No. 9475179 to Solvay under section 104(a) of the Mine Act for an alleged
violation of section 50.10(b). Tr. 92-93; Jt. Ex. 2.
Crum was surprised to receive a citation given the operator’s conclusion that Hauser’s
injuries never met the requirements for immediate reporting, and the deadline for filing a normal
7000-1 form had not passed. Tr. 331-332. Crum testified he had a conversation with Gust during
which he mentioned that Hauser had only a laceration to his head and some scrapes on his back,
was walking and directing his own care, and at no point did anyone, including Crum, think the
injuries were life threatening. Tr. 332, 335-336. However, according to Crum, Gust told him that
all head injuries and blunt force trauma are life-threatening. Tr. 332. Notably, at hearing, Crum
testified that he had no idea how much the rock, as measured, would have weighed. Tr. 337, 352.
Crum testified that he or someone else from the safety department is responsible for
making the call to MSHA when necessary. Tr. 319. He explained that the foreman closest to the
incident is not always near a phone, but they can contact the hoistman, who can relay the
message. Tr. 320. He explained that if a supervisor or foreman is taking care of an injured
individual, then that is their primary responsibility. Tr. 320.
Citation No. 9475179
Citation No. 9475179 alleges a violation of Section 50.10(b) of the Secretary’s safety
standards. The Condition or Practice section of the citation states as follows:
On January 31, 2020 a miner was struck by a large slab receiving
trauma to head and neck area. Management did not immediately
notify MSHA at once without delay and within 15 minutes to the
MSHA toll-free number.
Inspector Rodney Gust determined that a fatal injury was reasonably likely to be
sustained as a result of the violation. Gust further determined that the cited condition was
significant and substantial (S&S), affected one person, and was the result of Respondent’s high
negligence. The Secretary proposed a penalty of $6,159.00 for this alleged violation.
26

Gust testified that when traveling to the site of the incident he observed loose material
in many areas, including an area only a couple feet from where Hauser was injured, that needed
to be scaled or supported. Tr. 31-32, 35, 54-55, 71. Based on his observations, and a review of
the preshift reports, Jt. Ex. 10, he did not believe the operator was doing enough scaling. Tr. 53,
55.

43 FMSHRC Page 485

Fact of Violation
Brief Summary of the Parties’ Arguments on the Fact of Violation
The Secretary argues Respondent failed to properly notify MSHA that a miner had
suffered an injury with a reasonable potential to cause death. The Secretary asserts that
Respondent had 15 minutes from the time a person of sufficient authority learned of the event
injuring the miner to conduct its evaluation and determine whether it needed to notify MSHA.
Here, Respondent failed to perform an adequate investigation and, in turn, made a cursory
decision to not report the incident to MSHA even though the totality of the circumstances and the
evidence available at the time of the injury causing event would have allowed Respondent to
infer the miner had suffered an injury with the reasonable potential to cause death. Given that
Commission case law requires operators to err in favor of reporting when there are reasonable
doubts, the Respondent violated the standard when it failed to immediately report the subject
injury. Accordingly, the Secretary argues that Citation No. 9475179 should be affirmed.
Respondent raises three primary arguments in support of its request that that the citation
be vacated. First, Respondent argues that a reasonably prudent person would not have
determined that Hauser’s injury had the reasonable potential to cause death. Specifically,
Respondent argues that it was reasonable for the crew foreman and other personnel who
responded to incident, as well as the members of management who relied on information from
the foreman, to assume that Hauser was not directly hit by a large rock and had not suffered
injuries that required immediate notification. Hauser’s condition did not indicate that he was
stuck by a rock large enough to cause a fatal injury. Moreover, medical records and pictures
introduced into evidence corroborate the injury assessment of Solvay personnel that responded to
the incident.
Second, Respondent argues that the Secretary did not meet his burden of proving each
element of the cited standard. In making this argument Respondent asserts that the Secretary’s
assertions about the severity of the injuries are not supported by evidence. Further, Respondent
questions the credibility of the Secretary’s witnesses, and argues that Commission precedent
dictates that Hauser’s injuries, when viewed under the totality of the circumstances, were not as
severe as those suffered in other cases where immediate notification was required.
Finally, Respondent argues that it was not provided fair notice of the Secretary’s
interpretation that a head injury caused by a roof fall has a per se reasonable potential to cause
death.
Discussion
Section 50.10(b) provides that “[t]he operator shall immediately contact MSHA at once
without delay and within 15 minutes at the toll-free number, 1–800–746–1553, once the operator
knows or should know that an accident has occurred involving . . . [a]n injury of an individual at

43 FMSHRC Page 486

the mine which has a reasonable potential to cause death[.]” 30 C.F.R. § 50.10(b).27 Section
50.10 is triggered by the occurrence of an “accident,” as defined in 30 C.F.R. § 50.2(h).
Neither the Mine Act nor the Secretary’s regulations define when an injury has the
“reasonable potential to cause death.” However, Commission case law provides a framework for
making that determination.
In Consol Pennsylvania Coal Company, LLC, the Commission explained that, when
assessing the merits of a violation under 50.10(b) the court should “employ[] a reasonable person
standard, resolving reasonable doubt in favor of notification.” Consol Pennsylvania Coal
Company, LLC, 40 FMSHRC 998, 1003 (“Consol”) (citing Signal Peak Energy, LLC, 37
FMSHRC 470, 474, 477 (Mar. 2015)). Under the reasonable person standard, the court must
“evaluate the evidence in light of what a reasonably prudent person, familiar with the mining
industry and the protective purpose of the standard, would have provided in order to meet the
protection intended by the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2415 (Nov. 1990).
The Third Circuit Court of appeals, in an opinion affirming the Commission’s decision in
Consol, held that the purpose of notification requirement in 50.10(b) is “to encourage rapid
notification so that MSHA can respond effectively in an emergency and preserve evidence to
facilitate later investigation.” Consol Pennsylvania Coal Co., LLC v. FMSHRC, 941 F.3d 95, 105
(3d Cir. 2019).
In Consol the Commission endorsed consideration of the “totality of the circumstances”
when assessing whether a violation of the standard has occurred, and stated that, “[g]iven the
inability to acquire quickly a clinical diagnosis and the need for prompt reporting, readily
available information such as the nature of the accident and any observable indicators of trauma
are relevant and proper for consideration in assessing whether an injury is reportable.” Consol at
1003. Further, the “scope of the relevant evidence available to assist for purposes of section
50.10(b) generally will consist of the evidence available at the scene of the accident, at the time
of the accident, and immediately following the accident.” 40 FMSHRC at 1003. Moreover,
“[w]hile the record will often contain subsequent relevant information from medical
professionals, this information will likely not materialize until the time to make a decision to
notify MSHA has already passed. Therefore, it is less probative in a section 50.10(b) analysis.”
Id.
27

50.10(b) implements section 103(j) of the Mine Act, 30 U.S.C. § 813(j), which states,
in pertinent part, as follows:
In the event of any accident occurring in any coal or other mine, the
operator shall notify the Secretary thereof and shall take appropriate
measures to prevent the destruction of any evidence which would
assist in investigating the cause or causes thereof. For purposes of
the preceding sentence, the notification required shall be provided
by the operator within 15 minutes of the time at which the operator
realizes that the death of an individual at the mine, or an injury or
entrapment of an individual at the mine which has a reasonable
potential to cause death, has occurred.

43 FMSHRC Page 487

I find that the Secretary established a violation of the cited standard. In reaching this
conclusion I have focused upon the following critical facts. First, no one observed the roof fall
that struck Hauser. Second, Hauser suffered a serious blow to his head and back that knocked
him to the ground. Third, it was unknown what size rock stuck Hauser in the head. Fourth,
Hauser suffered visible lacerations to the back of his head and the area around his right eye and,
due to swelling, he was unable to see out of that eye. Fifth, Mattinson, the crew foreman and a
member of management, became aware of the incident only moments after it occurred. Sixth,
Respondent did not notify MSHA of the incident at any point on January 31, 2020. Seventh, and
finally, the void from which the rock fell was later measured to be anywhere from five feet wide,
by ten to twelve and half feet long, by one to three inches thick. Of the above listed facts, the
most critical to my analysis are that no one saw the roof fall, no one knew the size of the rock
that struck Hauser’s head, and that Hauser suffered a severe blow to the head.
It is undisputed that no one saw the roof fall or how it struck Hauser. Dodge, who was
closest to Hauser at the time of the incident, conceded that he did not see the roof fall or how it
struck Hauser. Although Dodge speculated that the falling rock “hinged” and did not directly
strike Hauser, his testimony was just that, speculation. Accordingly, I accord his testimony on
that issue no weight.28 Similarly, Boyd and Mattinson, who were positioned at the rear of the
bore miner, testified that they heard but did not see the roof fall. Respondent’s other witnesses
were on the surface at the time of the incident. Because none of these individuals saw the roof
fall or how it struck Hauser, it stands to reason that none of them knew the size of the rock that
struck Hauser in the head.29 The facts were all “known unknowns,” i.e., information Respondent
was aware, or should have been aware, that it lacked regarding the gravity of the injury.
In addition to the “known unknowns” discussed above, I find that Respondent was aware,
or should have been aware that Hauser had suffered a severe blow to the head and back that
drove him into the ground. When Dodge first observed Hauser after the roof fall, Hauser was
laying on the ground, pushing rocks off him and beginning to get up. While Hauser had scratches
on his back, it was clear that the bulk of the observable indications of trauma to his body were on
28

Gust testified that during his investigation Respondent stated that the rock may have
hinged on a roof bolt plate and swung and hit Hauser. He disagreed with this theory and testified
that the impression in the roof from which the rock fell was nowhere near a bolt plate. I credit
Gust’s testimony on this point.
29

Mattinson, Marshall and Crum, the three mine management officials who appeared at
hearing, all testified regarding their lack of knowledge regarding the size of the rock that struck
Hauser in the head. Notably, McGillis, a trained first aid responder, agreed that head injuries can
be serious and it would have made a difference to her what size rock had hit Hauser. However,
that information was never offered, nor was it available. This lack of knowledge regarding a
critical piece of information needed to evaluate the nature of the injury is at the core of my
finding a violation in this case. However, it is important that the parties recognize that in finding
a violation I am not faulting Respondent for the fact that it lacked knowledge regarding the size
of the rock that hit Hauser, but rather because Respondent did not recognize it lacked this critical
information. In failing to recognize that it lacked this information, management knowingly made,
or at the very least should have known it was making, an uninformed decision regarding whether
to immediately report Hauser’s injury.

43 FMSHRC Page 488

his head, i.e., lacerations to the back of his head and eye, bleeding, and swelling around his eye.
Common sense dictates that he had suffered a blow to the head as a result of the roof fall. The
force of the blow is demonstrated by the fact that he did not have time to cushion his fall by
stretching out his arms, which is the natural reaction, but instead hit the floor hard with his face.
Given the seriousness of head injuries, I find that a reasonable person, when presented with a
similar situation where there are multiple “known unknowns” regarding the circumstances that
caused head trauma, would have erred on the side of notification at that point. However,
Respondent chose not to do so. Although I have no difficulty finding a violation based on this
analysis, further discussion is helpful.
It is important to recognize that Congress added the 15-minute time requirement to the
Mine Act when it passed the MINER Act in 2006. This extremely short timeframe requires mine
operators to make a “yes” or “no” decision on whether to call MSHA before it can conduct a
comprehensive investigation into the extent of the miner’s injuries. Instead, the decision whether
to immediately call MSHA must be made based on a very limited knowledge of the facts
surrounding the injury and the nature of the accident.
Mine management’s primary responsibility after an accident is, of course, to tend to the
injured miner and get him or her any necessary medical help. Preforming this triage will provide
an initial indication of what type of care the miner will need. Management may be able to
complete this triage within 15 minutes, but it often will take longer depending upon such factors
as location of the accident within the mine, whether other miners saw the accident so that they
have some idea of the location and nature of the miner’s potential injuries, and the extent of these
injuries.
A mine operator must quickly make the determination whether to call MSHA under
stressful and rather chaotic circumstances. In this case, management knew or should have
known, within the 15-minute reporting period, that a rock fell from the top and at least part of the
rock hit the back of Hauser’s head, the blow threw Hauser to the ground with great force,
knocked off his hard hat, smashed his face into the ground, and caused a significant cut to the
back of his head. The 15-minute reporting period was over by the time Hauser was transported to
the bottom of the hoist, so management had to decide whether to call MSHA only knowing these
facts.
Solvay contends that because Hauser appeared to be conscious, cogent and was able to
exit the mine with only minimal assistance, it reasonably concluded that his injuries did not pose
a reasonable potential to cause death. I disagree. The accident occurred in 2020, not 1920. It is
now well known that significant blows to the head can lead to serious consequences that do not
immediately manifest themselves. The condition of an injured person immediately after suffering
a head injury often does not reveal whether that person will die from the blow, suffer significant
lingering problems, or be back to normal within a month.
For example, getting hit on the head by a heavy object can lead to an intracerebral
hemorrhage, i.e., bleeding in the brain. One of the most common causes of a brain hemorrhage is
head trauma. This fact is now common knowledge and is certainly something management of a
large mine should know. These hemorrhages have a reasonable potential to cause death if not

43 FMSHRC Page 489

diagnosed and treated quickly. Adverse symptoms of a brain hemorrhage will often not be
visible within 15 minutes of an accident.
Given the wound at the back of his head and the force with which his face was slammed
into the ground, it is obvious that the blow to Hauser’s head and body was quite severe and
traumatic. Joint Exhibit 25 shows the nature of his injuries. Common sense dictates that Solvay
should have immediately notified MSHA. Relying on Hauser’s condition immediately after
being hit was unreasonable because latent conditions can develop from trauma to the head that
can reasonably lead to death. Even though Hauser did not die, his mental condition was severely
affected by the accident and he continued to be on long-term disability at the time of the hearing,
which was held about 18 months after the accident. This fact demonstrates that the extent of
injuries following head trauma will generally not be known within the required 15-minute
reporting time. Mine management assumed that Hauser would be returning to work within a few
weeks after the accident. Although that was a possibility, there was also reasonable potential for
the trauma to lead to his death. Simply put, managers at the Solvay Mine should have known that
a significant blow to the head could reasonably be expected to be fatal even when the injured
miner was not displaying serious symptoms immediately following the accident.
Solvay contends that it was not provided with fair notice of the Secretary’s interpretation
that a head injury caused by a roof fall has a per se reasonable potential to cause death. First, the
Secretary is not required to provide notice of the medical fact that head trauma can result in
death even when the injured person appears to be in relatively good condition immediately after
suffering the trauma. Second, the Secretary is not arguing that all head injuries caused by
material falling from the top are per se immediately reportable. Rather he contends that when a
very large chunk of the roof falls on a miner and it is not clear how much of the rock hit the
miner’s head, a mine operator is required to resolve reasonable doubt in favor of immediate
notification. It was known that Hauser was hit by a large piece of rock, but it was not known how
much of the rock hit his head. However, the gash on the back of his head indicated that his head
was hit hard by the rock. The rock that fell was approximately five feet wide, ten feet long, one
to three inches thick, and weighed hundreds of pounds. Solvay was provided with all the notice it
needed that immediately calling MSHA was required.30
The purpose of the 15-minute reporting requirement is to prevent injuries to other miners
from the same or similar conditions that may be present in the mine and to preserve evidence so
that the accident can be properly investigated, and corrective measures determined. In view of
the above analysis, and taking into consideration the information known to Respondent in the
immediate aftermath of the injury, I find that based on the totality of the circumstances a
30

At least one other Commission judge has reached the same conclusion. In Red River
Coal Company Inc., 39 FMSHRC 368 (Feb. 2017) (ALJ), former Judge Feldman affirmed a
violation of 50.10(b) where a miner was struck in the head by a 50-pound metal disc. In
affirming the citation he stated that “[b]lunt force trauma to the head, even in circumstances
where a miner demonstrates stable vital signs and minimal blood loss, must be considered
potentially fatal. For it is common knowledge that potential swelling or bleeding in the cranial
cavity poses a significant risk of death. Notably, the preamble to the final rule for section 50.10
includes concussions and major upper body blunt force trauma as types of injuries that must be
immediately reported[].” Id. at 391-392 (internal citation omitted).

43 FMSHRC Page 490

reasonably prudent person familiar with the mining industry and the protective purpose of both
the Mine Act and the cited standard, would have at the very least resolved the numerous doubts
regarding the nature of the injury in favor of notification, as is required by Commission case law.
Citation No. 9475179 is AFFIRMED with the modification discussed below.
Gravity and S&S
A S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). In
order to establish the S&S nature of a violation, the Secretary must prove “(l) the underlying
violation of a mandatory safety standard; (2) a discrete safety hazard - that is, a measure of
danger to safety - contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that the injury will be of a
reasonably serious nature.” Mathies Coal Co., 6 FMSHRC l, 3-4 (Jan. 1984); accord Buck Creek
Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F.2d 99, 103 (5th
Cir. 1988) (approving Mathies criteria).
The Commission has explained that the focus of the Mathies analysis “centers on the
interplay between the second and third steps.” ICG Illinois, 38 FMSHRC 2473, 2475 (Oct. 2016)
(citing Newtown Energy Inc., 38 FMSHRC 2033 (Aug. 2016)). The second step requires the
judge to adequately define the “particular hazard to which the violation allegedly contributes[,]”
and then determine whether “there exists a reasonable likelihood of the occurrence of the hazard
against which the mandatory safety standard is directed.” Id. at 2475-2476. This determination
must be made “based on the particular facts surrounding the violation[.]” Id. The third step then
requires the judge to assume the existence of a hazard and assess whether the hazard “was
reasonably likely to result in serious injury.” Newtown at 2038; ICG Illinois at 2476.
Gust determined that a fatal injury was reasonably likely to be sustained and that the
violation was S&S. According to Gust, a purpose of the cited standard is to prevent similar
accidents and injuries from occurring in this mine, as well as other mines, by enabling MSHA to
protect miners through prevention, education and awareness after the agency has been notified.
Tr. 69. Gust explained that, here, because notification was not properly provided, miners in the
area of the bore miner were exposed to loose roof that remained.31 Tr. 70-71. In his experience, a
mine conducting an injury investigation would have noticed loose material around the accident
and shut down the section to scale and support the roof where needed. Tr. 71. However, here the
crew resumed mining activities only a few hours after the incident. Tr. 72.
Gust determined any injury could reasonably be expected to be fatal based on his
knowledge that roof falls of similar size have killed miners. Tr. 72. He testified regarding two
other situations he investigated where miners were struck and killed by falling loose material. Tr.
31

I credit Gust’s testimony that during his investigation he observed loose material
throughout the mine both as he traveled to the 6 Bore Miner Panel, as well as in the immediate
vicinity of where the subject roof fall occurred. Had Solvay properly notified MSHA of Hauser’s
injury, an investigation may have discovered that loose material before miners in the area were
exposed to further potential injury. Notably, mining resumed in the panel later the same day
Hauser suffered his injury.

43 FMSHRC Page 491

72-73. According to Gust, Solvay knew Hauser was driven face first into the ground, causing
lacerations, immediate swelling, and scrapes down his back. Tr. 73-74. Gust explained that the
mechanism of injury was “quite substantial,” and the miner’s injuries included a potential
concussion and blunt force trauma to the head, neck and back. Tr. 74.
I find that the Secretary established that the violation was S&S. I have already found that
Solvay violated the cited standard by failing to properly notify MSHA. The hazard to which the
violation of 50.10(b) allegedly contributes is MSHA being precluded from investigating the
cause of the accident and, in turn, being unable to identify similar hazards that may require
correction. See Signal Peak Energy, LLC, 37 FMSHRC 470, 480 (Mar. 2015). Here, Solvay’s
failure to properly report Hauser’s injury created a discrete safety hazard in that it precluded
MSHA from exercising its investigatory authority to determine the cause of Hauser’s injury, i.e.,
a roof fall, and eliminate similar hazardous conditions. Given the loose material observed by
Gust throughout the mine, as well as the fact that mining resumed in the area of the accident later
the same day, I find that there existed a reasonable likelihood another miner would have been
injured by falling loose material. As evidenced by what happened to Hauser, a loose roof which
goes uncorrected has the potential to result in an extremely serious injury. Accordingly, I find
that the gravity of the violation was quite high, and that the Secretary’s S&S designation should
be affirmed.
Negligence
The Commission has recognized that “[e]ach mandatory standard … carries with it an
accompanying duty of care to avoid violations of the standard, and an operator’s failure to meet
the appropriate duty can lead to a finding of negligence if a violation of that standard occurs.”
A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator has
met its duty of care, the Commission considers “what actions would have been taken under the
same circumstances by a reasonably prudent person familiar with the mining industry, the
relevant facts, and the protective purpose of the regulation.” Jim Walter Res. Inc., 36 FMSHRC
1972, 1975 (Aug. 2014) (footnote omitted). High negligence “suggests an aggravated lack of
care that is more than ordinary negligence.” Topper Coal Co., 20 FMSHRC 344, 350 (Apr.
1998) (internal quotation omitted).
The Secretary argues that Solvay exhibited high negligence when it relied on incomplete,
incorrect information and assumptions when it decided that the accident was not immediately
reportable. Further, the Secretary asserts that Solvay’s failure to address easily scalable loose
ground conditions in the area of the accident prior to sending miners back in the area was highly
negligent.
I find that the Secretary did not establish that Solvay exhibited an aggravated lack of care
that was more than ordinary negligence. Solvay failed to immediately report the accident to
MSHA based on an incorrect assumption that because Hauser was walking and talking when he
was escorted out of the mine, he was not seriously injured. I find that this conduct constituted
only ordinary negligence. Solvay’s assumption was incorrect, but I find that it did not suggest an
“aggravated lack of care.” In his brief, the Secretary, in part, relies on the fact that when
Inspector Gust conducted his investigation, he discovered loose ground that Solvay had not

43 FMSHRC Page 492

addressed in the same area of the mine and miners were required to resume mining in the area
the day of the accident without first scaling down the roof. I credit the inspector’s testimony in
this regard but find that it relates to the gravity of the violation rather than to the degree of
negligence that can be attributed to Solvay for the violation adjudicated in this case.32 I find that
the violation of section 50.10(b) was the result of Solvay’s moderate negligence.
III. APPROPRIATE CIVIL PENALTY
Section 110(a)(2) of the Mine Act requires that an operator who fails to timely provide
notification as required under section 103(j) of the Mine Act “shall be assessed a civil penalty by
the Secretary of not less than $5,000 and not more than $60,000.” 30 U.S.C. § 820(a)(2).
50.10(b) of the Secretary’s regulations implements Section 103(j) of the Act. Accordingly,
violations of 50.10(b) are subject to the statutory minimum set forth in the Act. The minimum
penalty in the Mine Act remains unchanged. However, in January 2020, pursuant to the Federal
Civil Penalties Inflation Adjustment Act of 1990, the minimum penalty for violations of 50.10(b)
was increased to $6,159 for penalties assessed by the Secretary in 2020. The Secretary proposed
a penalty of $6,159.00 for the citation at issue in this proceeding.
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. 30 U.S.C. § 820(i). According to MSHA’s Mine Data Retrieval System
website, Solvay worked over 750,000 hours in 2020 and over 900,000 hours in both 2019 and
2018, which correlates with a large metal/non-metal operator. 30 C.F.R. § 100.3 Table III. The
parties have stipulated that the penalty as proposed will not affect Solvay’s ability to remain in
business. Following the hearing the Secretary submitted a copy of Solvay’s certified violation
history, which was accepted into evidence as Joint Exhibit 34. The violation history indicates no
prior violations of section 50.10(b), and an overall violation history one would expect for an
operator of this size. The history warrant’s neither an increase nor decrease in the penalty. The
gravity and negligence of Citation No. 9475179 are discussed above. Exhibit A to the petition for
penalty reflects that the citation was timely abated. Based on the penalty criteria I assess a
penalty of $6,159.00 for Citation No. 9475179.

32

I note that Inspector Gust issued four citations for these conditions during his
inspection of the No. 6 panel where the accident occurred. I approved a settlement of these
citations on August 5, 2021, in WEST 2020-0315-M. All four citations were designated as
significant and substantial and Solvay did not dispute that designation in reaching a settlement.

43 FMSHRC Page 493

IV. ORDER
For reasons set forth above, Citation No. 9475179 is MODIFIED from high to moderate
negligence, but otherwise AFFIRMED as issued. Solvay is ORDERED TO PAY the Secretary
of Labor the sum of $6,159.00 within 40 days of the date of this decision.

/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge

Distribution (via email and certified mail):
Francesca Cheroutes and Tim Williams, U.S. Dept. of Labor, Office of the Solicitor, 1244 Speer
Blvd., Denver, CO 80204; cheroutes.francesc@dol.gov, williams2.timothy@dol.gov
Erik Dullea, Esq., Husch Blackwell; 1801 Wewatta Street, Suite 1000 Denver, CO 80202
erik.dullea@huschblackwell.com

43 FMSHRC Page 494

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: 202-434-9950 / FAX: 202-434-9949

July 14, 2020
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JAMES MCGAUGHRAN,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. PENN 2020-0015-DM

v.
LEHIGH CEMENT COMPANY, LLC,
Respondent.

Mine: Nazareth Plant I
Mine ID: 36-00190

ORDER DENYING MOTION TO ENFORCE ORDER
Before: Judge Rae
This matter comes before the Court upon the Secretary of Labor’s (“Secretary”) Motion
to Enforce Order (“Motion”). For the reasons set forth below, the Secretary’s Motion is denied.
I.

BACKGROUND

On August 20, 2019, I issued an Order Granting Temporary Economic Reinstatement
(“Order”) ordering Lehigh Cement Company, LLC (“Respondent”) to economically reinstate
James McGaughran in accordance with all terms set forth in the parties’ Joint Motion to Approve
Settlement Regarding Temporary Reinstatement. I issued the Order in the temporary
reinstatement proceeding, Docket No. PENN 2019-0144. Subsequently, I was assigned this
discrimination proceeding—Docket No. PENN 2020-0015—which concerns the merits of
McGaughran’s discrimination complaint. I set a hearing date of June 2-4, 2020 for the
discrimination proceeding. Subsequently, I postponed the hearing until October 27-30, 2020 due
to COVID-19.
On May 11, 2020, Respondent filed a Motion for Tolling of Economic Temporary
Reinstatement. On May 22, 2020, I issued the Order Tolling Temporary Reinstatement under the
temporary reinstatement docket, Docket No. PENN 2019-0144. The Secretary filed a Petition for
Discretionary Review of my Order Tolling Temporary Reinstatement, which the Commission
granted on July 1, 2020. The matter is currently pending before the Commission.
II.

DISCUSSION

The Secretary’s Motion alleges that Respondent is not honoring the Order. Specifically,
the Secretary alleges that Respondent failed to pay McGaughran the entire amount he is owed
under Respondent’s Annual Incentive Plan (“Incentive Plan”). The Incentive Plan provides
Respondent’s eligible employees with “an incentive compensation opportunity for improving

43 FMSHRC Page 495

operating performance within their areas of responsibility during the ‘plan year.’” Mot. to
Enforce Order Ex. 1, at 1. The Secretary seeks an order requiring Respondent to pay
McGaughran $12,000.00, which the Secretary claims represents the remainder of the Incentive
Plan payment that Respondent has withheld from McGaughran.1
Conversely, Respondent claims it is in full compliance with the Order. Respondent
argues that payments under the Incentive Plan are a discretionary “bonus,” not a “benefit” that
McGaughran is entitled to under the Order. Resp’t’s Opp’n to Mot. to Enforce Order, at 3-5.
Although Respondent made a partial Incentive Plan payment to McGaughran, Respondent now
maintains that the Order does not require Respondent to make any Incentive Plan payment to
McGaughran. Id. at 6-7. For that reason, Respondent seeks an order requiring McGaughran to
return the partial Incentive Plan payment to Respondent.
Ultimately, I cannot resolve the issues raised by the Secretary’s Motion at the present
time because the Motion is not properly before me and because I lack jurisdiction over the
temporary reinstatement proceeding. The Secretary filed the instant Motion under the incorrect
docket. The instant discrimination proceeding solely concerns the merits of McGaughran’s
discrimination claim, not issues addressing compliance with the Order. Rather, the matter of
enforcing compliance with the Order would be properly filed under Docket No. PENN 20190144, the temporary reinstatement proceeding.
However, this Court would lack jurisdiction to address the substance of the Secretary’s
Motion even if it were filed under the temporary reinstatement docket. Per Commission Rule
45(e), “[a] Judge’s order temporarily reinstating a miner is not a final decision within the
meaning of [Section] 2700.69, and[,] except during appellate review of such order by the
Commission or courts, the Judge shall retain jurisdiction over the temporary reinstatement
proceeding.” 29 C.F.R. §2700.45(e)(4) (emphasis added); see also BR&D Enters., Inc.,
23 FMSHRC 386, 389 (Apr. 2001). During the Commission’s review of the Order, the Court
does not retain jurisdiction over the temporary reinstatement proceeding.2 29 C.F.R.
§ 2700.45(e)(4).

1

From 2016 through 2019, Respondent paid McGaughran an incentive payment that
ranged from 15% to 17% of his annual salary. McGaughran Decl. ¶ 5. The Incentive Payment
Respondent paid McGaughran in April 2020 represented approximately 7% of his annual salary.
Id. ¶¶ 6, 7.
2

Even if I had jurisdiction, I would find that payments under the Incentive Plan are not a
“benefit” that McGaughran is entitled to under the Order. Payments under the Incentive Plan are
solely at the discretion of Respondent to award. Further, Section VI.D of the Incentive Plan
states that “incentive payments . . . shall not be deemed a part of a participant’s regular, recurring
compensation for purposes of calculating payments or benefits from any Company benefit plan
or severance program.” Mot. to Enforce Order Ex. 1, at 7.

43 FMSHRC Page 496

Therefore, I deny the Secretary’s Motion to Enforce Order because the Motion is not
properly before me and because I lack jurisdiction over the temporary reinstatement proceeding
pending review by the Commission.
ORDER
The Secretary’s Motion to Enforce Order is DENIED.

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

Distribution:
M. del Pilar Castillo, Office of the Solicitor, U.S. Department of Labor, 170 S. Independence
Mall West, Suite 630E, Philadelphia, PA 19106, Castillo.M.Pilar@dol.gov
Margaret Lopez, Carin Burford, OGLETREE, DEAKINS, NASH, SMOAK & STEWART P.C.,
1909 K Street NW, Suite 1000, Washington, DC 20006, margaret.lopez@ogletree.com,
carin.burford@ogletreedeakins.com

43 FMSHRC Page 497

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE N. W., SUITE 520N
WASHINGTON, D.C. 20004-1710
TELEPHONE NO.: 202-434-9933
TELECOPIER NO.: 202-434-9949

July 25, 2020
SECRETARY OF LABOR, U.S.
DEPARTMENT OF LABOR on behalf of
WILLIAM R. WHITMORE,
Complainant

TEMPORARY REINSTATEMENT
Docket No. KENT 2020-0116-DM
Mine: Riverside Stone Mine
Mine ID: 15-00081

v.
YAGER MATERIALS CORP.,
Respondent

Docket No. KENT 2020-0117-DM
Mine: Riverside Stone Mine
Mine ID: 15-18549

ORDER ON RESPONDENT’S MOTION TO COMPEL
PRODUCTION OF DOCUMENTS
Respondent, Yager Materials Corp., through Counsel, filed, on July 21, 2020, a Motion to
Compel Production of Documents. (“Motion”). The Court held a conference call with the parties
on July 23, 2020 to discuss the Motion. During that call the also Court issued its rulings on the
subjects identified in the Motion. This Order memorializes the Court’s rulings.
The Motion requested the following documents: Copies of the statement or memorandum
of interview of any interview of Mr. Whitmore; Copies of the statements or memoranda of
interviews of any management witness; Copies of all exhibits the Secretary intends to introduce
at hearing on the Secretary’s Application for Temporary Reinstatement in this matter; Copies of
any documents Mr. Fugate relied upon in preparing his Declaration. Motion at 2-3.

43 FMSHRC Page 498

The Secretary responded to the Motion via an email, objecting to it on the basis that it ran
afoul of several of the Commission’s Procedural Rules, including claims that the response to the
Motion would not be due until the day of the temporary reinstatement hearing or later and that
discovery was not expressly contemplated for a hearing on a temporary reinstatement
application. The full text of the Secretary’s email response is footnoted here.1
1

The Secretary’s Attorney stated in his email that he “request[ed] oral argument on this
matter [asking that the Court] [p]lease permit [him] a brief, if unorthodox, rejoinder: As the
parties are aware, by Rule, a response to the Respondent’s Motion is not due for eight days from
service, which would be July 29, 2020, the day of the hearing. 29 C.F.R. 2700.10(d). Any
discovery served under the Rules would not be due for 25 days from service. 29 C.F.R.
2700.57(c). If we call what [Respondent’s Attorney] served on July 17, 2020 “Document
Requests,” the responses from the Secretary would not be due until August 11, 2020. The Rules
also clearly state that discovery must be completed at least 20 days before a hearing. 29 C.F.R.
2700.56(e). We are within 20 days of hearing and were when the requests were served. Even [the
Respondent’s attorney’s] arbitrary deadline of this Friday [July 24, 2020] (after he conceded his
initial arbitrary deadline of tomorrow) has not passed for the Secretary’s responses. So, to have
any discussion of what the Rules permit, we must ignore the plain language of the foregoing
rules, and the deadline that the Respondent, itself, set. The Respondent and the Secretary agree
on one thing: the Commission Rules do not expressly contemplate discovery commencing after a
request for a hearing on an Application for Temporary Reinstatement: (d) Initiation of discovery.
Discovery may be initiated after an answer to a notice of contest, an answer to a petition for
assessment of penalty, or an answer to a complaint under section 105(c) or 111 of the Act has
been filed. 30 U.S.C. 815(c) and 821. 29 C.F.R. 2700.56(d). Absent from this list is the request
for a Temporary Reinstatement hearing. This absence is intentional in light of the unique scope
of such a hearing and the speed at which it must be completed. If the rules contemplated
discovery prior to a Temporary Reinstatement hearing, they would necessarily have set forth
things like the scope of such discovery in light of the limited scope of the hearing, alternate time
frames for service of requests and responses, and a blanket exemption from Rule 2700.56(e).
Initial disclosures, rather than discovery, would be more appropriate given the tight deadlines
between the request for a hearing and the hearing itself, but the Rules contain no such provisions.
As I explained to [the Respondent’s Attorney]: he wants discovery, the complainant (I am sure)
wants discovery, and the Secretary wants discovery. Why does the Respondent get discovery and
not the Secretary or the Complainant? The time frame for a Temporary Reinstatement hearing
does not allow the parties the opportunity to serve discovery and to lodge good-faith objections
to such requests. As we have here, we are essentially preparing for the hearing at the same time
we are having a discovery dispute. If all of the parties, as the Respondent argues, are allow[ed] to
serve discovery, the week before the hearing will be filled with constant expedited discovery
battles for which the Rules set forth no time frames. This current issue only came to a head
because the Secretary’s counsel affirmatively stated that discovery was not permitted. Had the
undersigned waited until this Friday to do so, the issue would not be before the Tribunal until
three days before the hearing. Had the Secretary served discovery responses with objections, the
same problem would have arisen. Finally, since the Rules set forth no limit on discovery for
[a]Temporary Reinstatement proceeding, who is to decide the scope of what is permissible for
such requests and how many requests can be served? There is simply no guidance available on
(continued…)

43 FMSHRC Page 499

At the outset of the July 23, 2020 conference call with the parties to discuss the Motion,
the Court informed that it considered the Secretary’s Counsel’s procedural objections to have
been waived by virtue of his email response.
The Court’s rulings on the Motion were also informed by the Commission’s procedural
rules on the subject of Temporary reinstatement Proceedings at 29 CFR 2700.45. It is noted that
subsection (d) of that section provides that “[t]he scope of a hearing on an application for
temporary reinstatement is limited to a determination as to whether the miner's complaint was
frivolously brought. The burden of proof shall be upon the Secretary to establish that the
complaint was not frivolously brought. In support of his application for temporary
reinstatement, the Secretary may limit his presentation to the testimony of the
complainant. The respondent shall have an opportunity to cross-examine any witnesses called
by the Secretary and may present testimony and documentary evidence in support of its position
that the complaint was frivolously brought.” Id. (emphasis added). In that regard, the Court
notes that there is no reference to the MSHA investigator’s declaration. Rather, the focus is upon
the testimony of the complainant and that the Secretary’s presentation can rely solely upon that.2
1. The Respondent’s request for copies of the statement or memorandum of interview
of any interview of Mr. Whitmore
Apart from the Court’s ruling that the Secretary had waived issues regarding the due date
for a response to the motion, the Court informed the parties that it did not view the Respondent’s
request for copies of the statement or memorandum of interview of any interview of Mr.
Whitmore to be properly denominated as “discovery,” at least in the classic sense of that term.
The Court explained its reasoning for this determination, noting that all the Respondent had, and
all that the Court had as well, was the Complainant’s signed, but unfairly uninformative May 18,
2020, “Discrimination Report.” That document contained a typed “Summary of Discriminatory
Action,” which stated in its entirety the following:
I was suspended on April 23, 2020, then discharged on April 29, 2020, from my
job as the Maintenance Manager at Riverside Stone underground and surface
mines because of numerous protected safety activities that I engaged in.
Discrimination Report, May 18, 2020.

1

(…continued)
what the permissible scope of discovery is in light of the ‘not frivolously brought’ standard. It is
inconsistent that a party would be burdened with a broader scope of discovery than its burden of
proof at an expedited hearing. The Rules contain no guidance on these issues because discovery
was not completed, and was specifically excluded, for Temporary Reinstatement hearings.” July
21, 2020 email from the Secretary to the Court.
2

As explained infra with regard to the Respondent’s request for copies of the statement
or memorandum of interview of any interview of Mr. Whitmore, the Court considered the
Respondent’s discovery request to actually be a request for a complete statement of the
Complaint from the Complainant Whitmore.

43 FMSHRC Page 500

The “Discrimination Complaint” document itself was no more enlightening. At its
heart, it informed of the Complainant’s name, rate of pay, job title and the address of the
Respondent’s mine and the names of four individuals employed by the Respondent alleged to be
responsible for the discriminatory action.3 Discrimination Complaint, May 19, 2020.
Importantly, the Discrimination Complaint added nothing, that is to say it provided no
additional information whatsoever regarding any particulars about the alleged protective activity.
It was only through the vehicle of the Secretary’s “Declaration of Freddie Fugate,”
identified as a “senior special investigator” employed by MSHA, that some particulars about the
nature of the Complainant’s discrimination complaint were first revealed. Of course, Mr. Fugate
has no more first-hand knowledge about the Complainant’s allegations than the Court.
Accordingly, the Fugate Declaration serves as a mere conduit, recounting the allegations
made by the Complainant and nothing more than that. Thus, the Court does not consider it farfetched to analogize the Fugate Declaration as akin to an individual relating a story over a fence
to a neighbor. And it is that serious shortcoming that formed the basis of the Court’s problem
with the inadequacy of the declaration. The story may be an accurate retelling, or it may not, but
for purposes of defending a discrimination complaint under due process, a respondent has a right
to more. The Respondent is entitled to the Complainant’s first-hand accounting of the basis for
his discrimination complaint. Fundamental fairness demands this. See, e.g., Sec. v. Cumberland
Coal Resources, 32 FMSHRC 442 (May 2010), wherein the Commission stated that the
“concepts of fundamental fairness [ ] require that every litigant receive adequate notice of
charges made against it.” Id. at 449.
Accordingly, during the conference call, the Court ordered that copies of the statement or
memorandum of interview of any interview of Mr. Whitmore be provided.
2. Copies of the statements or memoranda of interviews of any management witness
The Court ruled during the conference call that this request was denied. The basis for that
ruling was that such statements, if they exist, are not necessary in the context of the Secretary’s
burden in an application for temporary reinstatement. If the Secretary did intend to introduce
such documents, the Court’s order for the parties’ prehearing exchange would cover those.4 As
an aside, the Court opined that it would be highly unusual for any management witness to have
made a statement without receiving a copy of it.

3

Four individuals are named in Complaint itself as those responsible for the
discriminatory action: Bryan Ory, Rick Voyles, Tammy Wimsatt, and Lisa Weldman, but there
is no information tying those individuals to Whitmore’s Discrimination Report.
4

The Court had previously ordered that the parties conduct their prehearing exchange by
Friday, July 24, 2020. The parties submitted those exchanges pursuant to that order.

43 FMSHRC Page 501

3. Copies of all exhibits the Secretary intends to introduce at hearing on the
Secretary’s Application for Temporary Reinstatement in this matter
This request, as alluded to above, was covered by the Court’s prehearing exchange order.
4. Copies of any documents Mr. Fugate relied upon in preparing his Declaration.
As the Court ruled that Mr. Fugate’s declaration could not serve as a substitute for copies
of the statement or memorandum of interview of any interview of Mr. Whitmore, this request
was denied. The Court considered that such other documents, if they exist, would more
appropriately be the subject for possible discovery in a full hearing on the merits in the
complainant’s discrimination complaint, but not in the context of a temporary reinstatement
application. It is noted that such a request could run afoul of attorney-client or deliberative
process claims.
Accordingly, having ruled on the four aspects of the Respondent’s Motion, this matter
has been disposed of and will now proceed to the hearing on the application for temporary
reinstatement set to commence on Wednesday, July 29, 2020 at 9:00 a.m. EDT.
SO ORDERED.

/s/ William B. Moran
William B. Moran
Administrative Law Judge

Distribution:
Thomas J. Motzny, Office of the Solicitor, U. S. Department of Labor, U. S. Department of
Labor, 618 Church Street, Suite 230, Nashville, TN 37219 motzny.thomas.j@dol.gov
Tony Oppegard, P.O. Box 22446, Lexington, KY 40522 tonyoppegard@gmail.com
Wes Addington, Appalachian Citizens’ Law Center, 317 Main Street, Whitesburg, KY 41858
wes@aclc.org
Arthur M. Wolfson, Fisher Phillips, Six PPG Place, Suite 830, Pittsburg, PA 15222
awolfson@fisherphillips.com

43 FMSHRC Page 502

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 1400
WASHINGTON, DC 20004-1710
TELEPHONE: 202 434-9987 / FAX: 202 434-9949

November 19, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2021-0145
A.C. No. 47-03196-534597

v.
RIVER CITY STONE-DIV/MATHY
CONSTRUCTION CO,
Respondent

Mine: Plant #53

ORDER CERTIFYING CASE FOR INTERLOCUTORY REVIEW
Before: Judge Young
This case is before me on a Petition for the Assessment of Civil Penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). I
denied a motion to approve settlement of this docket, and four similarly situated proceedings.1
The Secretary seeks interlocutory review of all five proceedings, pursuant to Commission
Procedural Rule 76, 29 C.F.R. § 2700.76.
This docket includes two citations issued pursuant to Section 104(a) of the Mine Act. On
October 6, 2021, the Secretary submitted a motion to dismiss civil penalty proceeding. The
motion proposed vacating one citation, while leaving the other undisturbed and reducing the total
penalty from $250.00 to $125.00. See S. Mot. to Dismiss Civ. Penalty Proc. at 1 (Oct. 6, 2021).
Because the motion appears to vacate one contested citation in return for agreement to pay the
other, I treat it as a motion to approve settlement.
The question certified for review and my position have been clearly expressed in the
Order Certifying Case for Interlocutory Review for Docket No. WEVA 2021-0294 (Appendix
C). As in each associated docket, the Secretary chose not to provide information supporting the
vacatur of the contested citations or certify that vacatur was not contingent upon resolution of the
remaining citations. Instead, he invoked unreviewable discretion under RBK Construction, Inc.2
See 15 FMSHRC 2099, 2101 (Oct. 1993) (“RBK”). I found that RBK does not control the
1

The others are Docket Nos. WEVA 2021-0294, YORK 2021-0023, SE 2021-0134, and
SE 2021-0112, all of which were similarly stayed pending certification. See Unpublished Order
at 1 n.1 (Oct. 19, 2021) (Appendix B).
2

“In an exercise of his prosecutorial discretion as previously recognized by the Federal
Mine Safety and Health Review Commission in RBK Construction, 15 FMSHRC 2099 (October
1993), the Secretary has decided to vacate Section 104(a) Citation 9482296.” S. Mot. at 1.

43 FMSHRC Page 503

resolution of this issue, and that the citations proposed to be vacated have been contested before
the Commission and are subject to my approval. See Unpublished Order at 3 (Oct. 8, 2021)
(Appendix A).
Under Commission Procedural Rule 76, 29 C.F.R. § 2700.76, I certify that this
interlocutory ruling involves a controlling question of law—whether the Secretary has
unreviewable discretion to vacate a contested citation without the Commission’s approval—and
that immediate review will materially advance the final disposition of the proceeding.
For the reasons stated herein, and in my order certifying interlocutory review in WEVA
2021-0294, this interlocutory ruling is hereby CERTIFIED.

/s/ Michael G. Young
Michael G. Young
Administrative Law Judge
Distribution (by email):
Emily Toler Scott, Office of the Solicitor, U.S. Dep’t of Labor, Scott.Emily.T@dol.gov
Alexandra J. Gilewicz, Office of the Solicitor, U.S. Dep’t of Labor,
Gilewicz.Alexandra.J@dol.gov
Joshua Schultz, Esq., Law Office of Adele L. Abrams, P.C., jschultz@aabramslaw.com

Attachments:
Appendix A: Order Denying Motion to Approve Settlement, Docket No. LAKE 2021-0145 (Oct.
8, 2021)
Appendix B: Order Staying Proceedings, Docket No. LAKE 2021-0145 (Oct. 19, 2021)
Appendix C: Order Certifying Case for Interlocutory Review, Docket No. WEVA 2021-0294
(November 19, 2021)

43 FMSHRC Page 504

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 1400
WASHINGTON, DC 20004-1710
TELEPHONE: 202 434-9987 / FAX: 202 434-9949

November 19, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 2021-0112
A.C. No. 01-00851-532087

v.
CRIMSON OAK GROVE RESOURCES
LLC,
Respondent

Mine: Oak Grove Mine

ORDER CERTIFYING CASE FOR INTERLOCUTORY REVIEW
Before: Judge Young
This case is before me on a Petition for the Assessment of Civil Penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). I
denied a motion to approve settlement of this docket, and four similarly situated proceedings.1
The Secretary seeks interlocutory review of all five proceedings, pursuant to Commission
Procedural Rule 76, 29 C.F.R. § 2700.76.
This docket includes three citations issued pursuant to Section 104(a) and 104(g)(1) of
the Mine Act. On September 27, 2021, the Secretary submitted a motion to dismiss civil penalty
proceeding. The motion proposed vacating one citation, while leaving the other two undisturbed
and reducing the total penalty from $1,154.00 to $1,029.00. See S. Mot. to Dismiss Civ. Penalty
Proc. at 1 (Sept. 27, 2021). Because the motion appears to vacate one contested citation in return
for agreement to pay the others, I treat it as a motion to approve settlement.
The question certified for review and my position have been clearly expressed in the
Order Certifying Case for Interlocutory Review for Docket No. WEVA 2021-0294 (Appendix
C). As in each associated docket, the Secretary chose not to provide information supporting the
vacatur of the contested citations or certify that vacatur was not contingent upon resolution of the
remaining citations. Instead, he invoked unreviewable discretion under RBK Construction, Inc.2
See 15 FMSHRC 2099, 2101 (Oct. 1993) (“RBK”). I found that RBK does not control the
1

The others are Docket Nos. WEVA 2021-0294, YORK 2021-0023, SE 2021-0134, and
LAKE 2021-0145, all of which were similarly stayed pending certification. See Unpublished
Order at 1 n.1 (Oct. 19, 2021) (Appendix B).
2

“In an exercise of his prosecutorial discretion as previously recognized by the Federal
Mine Safety and Health Review Commission in RBK Construction, 15 FMSHRC 2099 (October
1993), the Secretary has decided to vacate Section 104(a) Citation 9493935.” S. Mot. at 1.

43 FMSHRC Page 505

resolution of this issue, and that the citations proposed to be vacated have been contested before
the Commission and are subject to my approval. See Unpublished Order at 2–3 (Oct. 6, 2021)
(Appendix A).
Under Commission Procedural Rule 76, 29 C.F.R. § 2700.76, I certify that this
interlocutory ruling involves a controlling question of law—whether the Secretary has
unreviewable discretion to vacate a contested citation without the Commission’s approval—and
that immediate review will materially advance the final disposition of the proceeding.
For the reasons stated herein, and in my order certifying interlocutory review in WEVA
2021-0294, this interlocutory ruling is hereby CERTIFIED.

/s/ Michael G. Young
Michael G. Young
Administrative Law Judge

Distribution (by email):
Emily Toler Scott, Office of the Solicitor, U.S. Dep’t of Labor, Scott.Emily.T@dol.gov
Wm. Allen McGilton, Assistant Director of Safety-Assessments, American Consolidated Natural
Resources, Inc., amcgilton@coalsource.com
Alexandra J. Gilewicz, Office of the Solicitor, U.S. Dep’t of Labor,
Gilewicz.Alexandra.J@dol.gov
Attachments:
Appendix A: Order Denying Motion to Approve Settlement, Docket No. SE 2021-0112 (Oct. 6,
2021)
Appendix B: Order Staying Proceedings, Docket No. SE 2021-0112 (Oct. 19, 2021)
Appendix C: Order Certifying Case for Interlocutory Review, Docket No. WEVA 2021-0294
(November 19, 2021)

43 FMSHRC Page 506

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 1400
WASHINGTON, DC 20004-1710
TELEPHONE: 202 434-9987 / FAX: 202 434-9949

November 19, 2021
CIVIL PENALTY PROCEEDING

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

Docket No. SE 2021-0134
A.C. No. 01-00851-533786

v.
CRIMSON OAK GROVE RESOURCES
LLC,
Respondent

Mine: Oak Grove Mine

ORDER CERTIFYING CASE FOR INTERLOCUTORY REVIEW
Before: Judge Young
This case is before me on a Petition for the Assessment of Civil Penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). I
denied a motion to approve settlement of this docket, and four similarly situated proceedings.1
The Secretary seeks interlocutory review of all five proceedings, pursuant to Commission
Procedural Rule 76, 29 C.F.R. § 2700.76.
This docket includes five citations issued pursuant to Section 104(a) of the Mine Act. On
September 28, 2021, the Secretary submitted a motion to approve settlement. The motion
proposed vacating one citation, while modifying or leaving undisturbed the remaining four
citations and reducing the total penalty from $29,497.00 to $11,672.00. See S. Mot. to Approve
Settlement at 2 (Sept. 28, 2021).
The question certified for review and my position have been clearly expressed in the
Order Certifying Case for Interlocutory Review for Docket No. WEVA 2021-0294 (Appendix
C). As in each associated docket, the Secretary chose not to provide information supporting the
vacatur of the contested citations or certify that vacatur was not contingent upon resolution of the
remaining citations. Instead, he invoked unreviewable discretion under RBK Construction, Inc.2
See 15 FMSHRC 2099, 2101 (Oct. 1993) (“RBK”). I found that RBK does not control the
resolution of this issue, and that the citations proposed to be vacated have been contested before
1

The others are Docket Nos. WEVA 2021-0294, LAKE 2021-0145, YORK 2021-0023,
and SE 2021-0112, all of which were similarly stayed pending certification. See Unpublished
Order at 1 n.1 (Oct. 19, 2021) (Appendix B).
2

“In an exercise of his prosecutorial discretion as previously recognized by the Federal
Mine Safety and Health Review Commission in RBK Construction, 15 FMSHRC 2099 (October
1993), the Secretary has agreed to vacate Citation No. 9493063.” S. Mot. at 1–2.

43 FMSHRC Page 507

the Commission and are subject to my approval. See Unpublished Order at 3 (Oct. 7,
2021) (Appendix A).
Under Commission Procedural Rule 76, 29 C.F.R. § 2700.76, I certify that this
interlocutory ruling involves a controlling question of law—whether the Secretary has
unreviewable discretion to vacate a contested citation without the Commission’s approval—and
that immediate review will materially advance the final disposition of the proceeding.
For the reasons stated herein, and in my order certifying interlocutory review in WEVA
2021-0294, this interlocutory ruling is hereby CERTIFIED.

/s/ Michael G. Young
Michael G. Young
Administrative Law Judge

Distribution (by email):
Emily Toler Scott, Office of the Solicitor, U.S. Dep’t of Labor, Scott.Emily.T@dol.gov
Alexandra J. Gilewicz, Office of the Solicitor, U.S. Dep’t of Labor,
Gilewicz.Alexandra.J@dol.gov
Wm. Allen McGilton, Assistant Director of Safety-Assessments, American Consolidated Natural
Resources, Inc., amcgilton@coalsource.com

Attachments:
Appendix A: Order Denying Motion to Approve Settlement, Docket No. SE 2021-0134 (Oct. 7,
2021)
Appendix B: Order Staying Proceedings, Docket No. SE 2021-0134 (Oct. 19, 2021)
Appendix C: Order Certifying Case for Interlocutory Review, Docket No. WEVA 2021-0294
(November 19, 2021)

43 FMSHRC Page 508

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 1400
WASHINGTON, DC 20004-1710
TELEPHONE: 202 434-9987 / FAX 202 434-9949

November 19, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2021-0294
A.C. No. 46-09563-532369

v.
GREENBRIER MINERALS, LLC,
Respondent

Mine: Eagle No. 1 Mine

ORDER CERTIFYING CASE FOR INTERLOCUTORY REVIEW
Before: Judge Young
This case is before me on a Petition for the Assessment of Civil Penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). I
denied a motion to approve settlement of this docket, and four similarly situated proceedings.1
The Secretary seeks interlocutory review of all five proceedings,2 pursuant to Commission
Procedural Rule 76, 29 C.F.R. § 2700.76.
I agree with the Secretary that this interlocutory ruling involves a controlling question of
law, and that immediate review will materially advance the final disposition of this proceeding
and the other four similar cases. I certify for review this question: Whether the Secretary has
unreviewable discretion to vacate a contested citation without the Commission’s approval.
This docket includes six citations issued pursuant to Section 104(a) of the Mine Act. On
August 5, 2021, the Secretary submitted a motion to approve settlement. The motion proposed
vacating two citations, leaving the remaining four citations undisturbed and reducing the total
penalty from $1,960.00 to $1,213.00. See S. Mot. to Approve Settlement at 2 (Aug. 5, 2021). In
support of these modifications, the Secretary offered only the following:

1

The others are Docket Nos. YORK 2021-0023, LAKE 2021-0145, SE 2021-0134, and
SE 2021-0112, all of which were similarly stayed pending certification. See Unpublished Order
at 1 n.1 (Oct. 19, 2021) (“Stay Order”).
2

I deferred to the Secretary which case to submit for interlocutory review. See Stay Order
at 2 n.2. I suggested that it was not necessary to certify all five cases. The Secretary has elected
to petition for review of all of them. The other four will be certified in separate orders. I infer
from his choice that there may be distinctions in one or more of the other cases that the Secretary
wishes to bring to the attention of the Commission.

43 FMSHRC Page 509

The Secretary has determined that this violation should be vacated in an exercise
of his prosecutorial discretion recognized by the Commission in RBK Construction,
Inc., 15 FMSHRC 2099 (October 1993).
Id. at 3.3
I denied approval of the settlement—specifying that the asserted unreviewable discretion
is contrary to the Mine Act’s requirement that the Commission approve all settlements, as these
vacaturs were proposed within a motion to approve settlement. See Unpublished Order at 1
(Sept. 30, 2021) (“Order”).4 The Order, however, provided possible resolution—either a
certification or a detailed explanation—rather than Commission review. See id. at 3.5
In a phone conference on October 14, 2021, regarding a similarly situated docket—
YORK 2021-0023—the Solicitor maintained her reliance on the Secretary’s asserted authority to
vacate citations without the approval of a Commission Judge, even when done as part of a
settlement proposal.6 Parties agreed that interlocutory review was an appropriate means of
resolution, and the undersigned agreed to grant certification. See Stay Order at 2.
Section 110(k) of the Mine Act provides, “No proposed penalty which has been contested
before the Commission under section 105(a) shall be compromised, mitigated, or settled except
with the approval of the Commission.” 30 U.S.C. § 820(k). The standard for Commission
evaluation is whether the proposed settlement is “fair, reasonable, appropriate under the facts,
and protects the public interest.” Am. Coal Co., 40 FMSHRC 983, 987 (Aug. 2018).
To effectively apply this standard, Commission Judges must have “sufficient
information” upon which to base this evaluation. Id. (quoting Black Beauty Coal Co., 34
FMSHRC 1856, 1862 (Aug. 2012)); see also 29 C.F.R. § 2700.31(g) (“Any order by the Judge
approving a settlement shall set forth the reasons for approval and shall be supported by the
record.”).

3

This identical language, provided as the only explanation for vacatur, was used for both
citations in paragraphs 6(A) and 6(B) to “assist the Commission in evaluating whether the
proposed penalty reductions are fair, reasonable, adequate under the facts, and in the public
interest.” S. Mot. at 2–3.
4

The Order, and the Stay Order, are attached as Appendices “A” and “B” and
incorporated in this order by reference.
5

The same offer was provided before the Secretary’s request that the undersigned reduce
the denial to a formal order. See E-mail from Kirsten Brown, Attorney Advisor to Administrative
Law Judge Michael G. Young, to MSHA Conference and Litigation Representative Donald R.
Hayhurst, Jr. (Aug. 26, 2021, 7:29 PM EDT).
6

The Solicitor asserted the authority for all associated dockets, including this one. See
supra note 1.

43 FMSHRC Page 510

The Secretary here has chosen not to provide information supporting the vacatur of
contested citations within a motion to approve settlement, instead invoking unreviewable
discretion to vacate citations under RBK Construction, Inc. See 15 FMSHRC 2099, 2101 (Oct.
1993) (“RBK”). In the Order, I held that RBK does not control the resolution of this issue. I found
that RBK’s reasoning and provenance distinguish that case from the case at bar.
First, RBK recognizes that Section 110(k) of the Mine Act “only applies to settlements of
penalties, not to vacations of citations and orders.” Id. Here, the Secretary vacated citations
within a motion to approve settlement, leaving others undisturbed. See Order at 1, 3 (noting the
suggestion of a quid pro quo—vacating relatively large penalties in return for agreement to pay
those remaining).
Second, the Supreme Court decision upon which RBK is grounded reinforces the
requirement for Commission review by contrast to the Occupational Safety and Health Act
(“OSHA”). See Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 6–7 (1985)
(holding that the Secretary had unlimited discretion to vacate citations under OSHA and
requiring no settlement approval by OSHRC). In direct contrast to OSHA, the Mine Act
expressly requires Commission approval for settlement of contested citations. See Order at 2
(describing OSHA language granting sole discretion to the Secretary where the Mine Act does
not, rendering the Cuyahoga Valley Railway Co. decision irrelevant to FMSHRC settlements).
Because the Secretary declined an offer to certify or explain his decision to vacate the
settlement as either independent of the disposition of the other citations or as a justifiable
compromise, I have considered his vacatur as part of a settlement, rendering RBK inapplicable.7 I
also acknowledge the Secretary’s prosecutorial discretion in two prior instances—the authorized
representative’s decision to cite the violation, and the Secretary’s decision to petition for penalty.
Each citation in this docket has now, therefore, been contested before the Commission and
requires approval for settlement. See Order at 2–3.
Under Commission Procedural Rule 76, 29 C.F.R. § 2700.76, I certify that this
interlocutory ruling involves a controlling question of law—whether the Secretary has

7

I recognize that the Secretary may have decided to challenge my decision on principle,
even if he had sought to vacate the penalty on independent grounds. Nothing in this order
prejudices the Secretary’s ability to certify that he decided to vacate penalties in any of the
affected dockets for reasons independent of the settlement, should the Commission affirm my
order.

43 FMSHRC Page 511

unreviewable discretion to vacate a contested citation without the Commission’s approval—and
that immediate review will materially advance the final disposition of the proceeding.
This interlocutory ruling is hereby CERTIFIED.

/s/ Michael G. Young
Michael G. Young
Administrative Law Judge

Distribution (by email):
Alexandra J. Gilewicz, Office of the Solicitor, U.S. Dep’t of Labor,
gilewicz.alexandra.j@dol.gov
Emily Toler Scott, Office of the Solicitor, U.S. Dep’t of Labor, scott.emily.t@dol.gov
Lorna M. Waddell, Counsel for Respondent, Dinsmore & Shohl LLP, lorna.waddell@dinsmore.com

Attachments:
Appendix A: Order Denying Motion to Approve Settlement, Docket No. WEVA 2021-0294
(Sept. 30, 2021)
Appendix B: Order Staying Proceedings, Docket No. WEVA 2021-0294 (Oct. 19, 2021)

43 FMSHRC Page 512

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 1400
WASHINGTON, DC 20004-1710
TELEPHONE: 202 434-9987 / FAX: 202 434-9949

November 19, 2021
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. YORK 2021-0023
A.C. No. 18-00019-527910

v.
HOLCIM (US) INC.,
Respondent

Mine: Holcim (US) Inc Hagerstown
Facility

ORDER CERTIFYING CASE FOR INTERLOCUTORY REVIEW
Before: Judge Young
This case is before me on a Petition for the Assessment of Civil Penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). I
denied a motion to approve settlement of this docket, and four similarly situated proceedings.1
The Secretary seeks interlocutory review of all five proceedings, pursuant to Commission
Procedural Rule 76, 29 C.F.R. § 2700.76.
This docket includes thirteen citations issued pursuant to Section 104(a) of the Mine Act.
On August 3, 2021, the Secretary submitted a motion to approve settlement. The motion
proposed vacating four citations, while modifying or leaving undisturbed the remaining nine
citations and reducing the total penalty from $28,148.00 to $17,843.00. See S. Mot. to Approve
Settlement at 2 (Aug. 3, 2021).
The question certified for review and my position have been clearly expressed in the
Order Certifying Case for Interlocutory Review for Docket No. WEVA 2021-0294 (Appendix
C). As in each associated docket, the Secretary chose not to provide information supporting the
vacatur of the contested citations or certify that vacatur was not contingent upon resolution of the
remaining citations. Instead, he invoked unreviewable discretion under RBK Construction, Inc.2
See 15 FMSHRC 2099, 2101 (Oct. 1993) (“RBK”). I found that RBK does not control the
resolution of this issue, and that the citations proposed to be vacated have been contested before

1

The others are Docket Nos. WEVA 2021-0294, LAKE 2021-0145, SE 2021-0134, and
SE 2021-0112, all of which were similarly stayed pending certification. See Unpublished Order
at 1 n.1 (Oct. 19, 2021) (Appendix B).
2

“It is undisputed that the Secretary has prosecutorial discretion to vacate a citation.
Secretary of Labor (MSHA) v. RBK Construction, Inc., 15 FMSHRC 2099 (October 1993).” S.
Mot. at 3–4.

43 FMSHRC Page 513

the Commission and are subject to my approval. See Unpublished Order at 2–3 (Sept. 28, 2021)
(Appendix A).
Under Commission Procedural Rule 76, 29 C.F.R. § 2700.76, I certify that this
interlocutory ruling involves a controlling question of law—whether the Secretary has
unreviewable discretion to vacate a contested citation without the Commission’s approval—and
that immediate review will materially advance the final disposition of the proceeding.
For the reasons stated herein, and in my order certifying interlocutory review in WEVA
2021-0294, this interlocutory ruling is hereby CERTIFIED.

/s/ Michael G. Young
Michael G. Young
Administrative Law Judge

Distribution (by email):
Emily Toler Scott, Office of the Solicitor, U.S. Dep’t of Labor, Scott.Emily.T@dol.gov
Alexandra J. Gilewicz, Office of the Solicitor, U.S. Dep’t of Labor,
Gilewicz.Alexandra.J@dol.gov
John Jerrels, Safety Representative, LafargeHolcim, john.jerrels@lafargeholcim.com

Attachments:
Appendix A: Order Denying Motion to Approve Settlement, Docket No. YORK 2021-0023
(Sept. 28, 2021)
Appendix B: Order Staying Proceedings, Docket No. YORK 2021-0023 (Oct. 19, 2021)
Appendix C: Order Certifying Case for Interlocutory Review, Docket No. WEVA 2021-0294
(November 19, 2021)

43 FMSHRC Page 514